Conditions. The obligations of the parties under this Purchase Agreement are subject to the following conditions: a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities. b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991). c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto. d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto. e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto. f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto. g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below: (i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date; (ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”). h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee. i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 2 contracts
Sources: Purchase Agreement (Deerfield Triarc Capital Corp), Purchase Agreement (Deerfield Triarc Capital Corp)
Conditions. The obligations (a) If the Company's liability under any of the parties under this Purchase Agreement Reinsured Contracts is changed because of changes made on or after the Inception Date in the terms and conditions of the Reinsured Contracts (including to any contract riders or endorsements thereto) that are subject required due to changes in Applicable Law, the Reinsurer will share in the change proportionately to the following conditions:
a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, coinsurance share hereunder and the Company and the Trust have complied Reinsurer will make all appropriate adjustments to amounts due each other under this Agreement.
(b) Except as otherwise set forth or contemplated herein, including in all material respects paragraph (a) above, no changes, amendments or modifications made on or after the Inception Date in the terms and conditions of the Reinsured Contracts (including to any contract riders or endorsements thereto) which adversely affect the liability of the Reinsurer hereunder shall be covered hereunder without the prior written approval of such changes, amendments or modifications by the Reinsurer, which approval shall not be unreasonably withheld or delayed. In the event that any such changes, amendments or modifications are made in any Reinsured Contract without the prior written approval of the Reinsurer, this Agreement will cover Reinsured Risks incurred by the Company under such Reinsured Contract as if the non-approved changes, amendments or modifications had not been made.
(c) The Company will not change fund options for the Separate Accounts from and after the Inception Date unless such changes are made: (a) with all the agreements and satisfied prior written consent of the Reinsurer, in all material respects all its sole discretion, (b) in fulfillment of the conditions on either fiduciary obligations of their part the Company after consultation with the Reinsurer or (c) by the Board of Trustees of an unaffiliated fund (trust) to be performed liquidate, merge or satisfied remove a fund pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date terms of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial then existing fund participation agreements or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as through a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)regulatory process.
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 2 contracts
Sources: Reinsurance Agreement (Ge Life & Annuity Assurance Co Iv), Reinsurance Agreement (Ge Capital Life Separate Account Ii)
Conditions. The obligations obligation of Cogentrix GP and Cogentrix LP to make the parties under this Purchase Agreement contributions described in Section 3.2 are subject to the satisfaction of each of the following conditions precedent (except those conditions:, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The representations Project Credit Facilities and warranties contained herein the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be accurate provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the date State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLPProject Documents or Project Loan Documents to which it is a party, counsel for nor compliance by it with the Guarantor, the Company terms and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer provisions hereof or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinionsthereof, including, without limitation, the Legal Opinion Accord assignment of the ABA Section Project Documents and Project Assets to the Partnership, requires the consent or authorization of Business any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law (1991)applicable to it or its assets or business.
c(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The Purchaser shall have been furnished representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the opinion Project Documents or Project Loan Documents are true and correct as of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLPthe date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, dated the Closing Datemutatis mutandis, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form as if fully set out in Annex B heretoforth herein.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(e) The Purchaser following representations or warranties shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLPbe true and correct in all respects, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) belowPartnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the representations and warranties laws of the GuarantorState of Delaware, the Company (B) has full power and authority and the Trust legal right to incur the obligations provided for in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing DateAgreement, and (C) has taken all necessary action to authorize the Company execution, delivery and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either performance of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;this Agreement.
(ii) since This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the date legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the Interim Financial Statements rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as defined belowhave been duly obtained), there has been no material adverse change or conflicts or will conflict with or result in the condition (financial a breach or other), earnings, business violation of its charter documents or assets of the Guarantor, the Company bylaws or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the terms, conditions specified in this Section 3 shall or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all an "investment company" or a company "controlled" by an "investment company" within the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee meaning of the Trust or any officer Investment Company Act of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company1940, as the case may be, and not by such trustee or officer in any individual capacityamended.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Cogentrix Energy Inc), Limited Partnership Agreement (Ecoscience Corp/De)
Conditions. The obligations of the parties under this Purchase This Agreement are subject to the following conditions:
a) The representations and warranties contained herein shall be accurate as of effective on the first date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company CounselIncremental Closing Date”), ) on which each of the following conditions precedent set forth in this Section 5 have been satisfied:
(a) This Agreement shall have been duly executed by the Incremental Lender, the Borrowers, the Guarantors and the Administrative Agent.
(b) The Administrative Agent shall have received, for distribution to the Incremental Lender, a certificate of the secretary or assistant secretary (or other officer reasonably acceptable to the Administrative Agent) of each Borrower dated the Incremental Closing Date, certifying (A) that (i) attached thereto is a true and complete copy of each Organizational Document (or its equivalent) of such Borrower certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its organization or (ii) there have been no changes to the Organizational Documents of such Borrower delivered an opinion, dated to the Administrative Agent on the Closing Date, addressed to the Purchaser and The Bank (B) that attached thereto is a true and complete copy of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed resolutions duly adopted by the Company’s Chief Executive OfficerBoard of Managers of such Borrower establishing that all necessary organizational action on the part of such Borrower has been taken, Presidentauthorizing the execution, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed delivery and performance of this Agreement contemplated to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished be entered into by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice Borrower and that they are such resolutions and other actions have not admitted to practice in any other jurisdiction been modified, rescinded, supplemented, or amended and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991)full force and effect.
(c) The Purchaser Administrative Agent shall have received, for distribution to the Incremental Lender, a certificate as to the good standing of each Borrower as of a recent date, from the Secretary of State of the State of Delaware.
(d) The Administrative Agent shall have received, for distribution to the Incremental Lender, a certificate from an Authorized Officer of the Borrower Representative reasonably satisfactory to it certifying and demonstrating (a) as to the Borrowers’ Certifications in Section 7 hereof, and (b) that all of the requirements set forth in Section 2.25 of the Credit Agreement have been furnished satisfied with respect to the Incremental Facility, such certificate to be accompanied by calculations shown in reasonable detail to that effect.
(e) The Administrative Agent and the Incremental Lender shall have received, on behalf of themselves, the other Agents, the Lenders and the Issuing Bank, a favorable written opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLPDay, special counsel for the Property Trustee and the Indenture TrusteeCredit Parties, (A) dated the Incremental Closing Date, (B) addressed to the PurchaserAgents, in substantially the form set out in Annex D heretoIncremental Lender, the Issuing Bank and the Lenders and (C) covering such matters relating to this Agreement and the Credit Documents as the Administrative Agent shall reasonably request.
(f) The Purchaser Administrative Agent shall have received payment of (i) all fees due to it and the opinion Incremental Lender, as separately agreed, (ii) reimbursement or payment of ▇▇▇▇▇▇▇▇all reasonable and documented out-of-pocket expenses of the Incremental Lender incurred in connection with the entry into of this Agreement and (iii) all amounts due and payable under Section 10.2 of the Credit Agreement, ▇▇▇▇▇▇ & Fingerincluding, P.A., special Delaware counsel for reimbursement or payment of all out-of-pocket expenses that are specifically required to be paid on the Delaware Trustee, dated the Incremental Closing Date, addressed in each case, to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
gextent invoiced at least two (2) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or Business Days prior to the Incremental Closing Date;.
(iig) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior Solely to the extent specifically requested by the Incremental Lender at least three (3) Business Days prior to the Incremental Closing Date, the Guarantor, the Company and the Trust Incremental Lender shall have furnished received at least one (1) Business Day prior to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Incremental Closing Date by the Purchaser. Notice of such cancellation all documentation and other information required under Anti-Terrorism Laws and applicable “know-your-customer” and anti-money laundering Laws, including a Beneficial Ownership Certification.
(h) The Administrative Agent shall be given have received, for distribution to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company Incremental Lender, a Solvency Certificate duly executed and delivered to by Parent, substantially in the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, form attached hereto as the case may be, and not by such trustee or officer in any individual capacity.Exhibit A.
Appears in 2 contracts
Sources: Joinder Agreement, Joinder Agreement (NRC Group Holdings Corp.)
Conditions. The obligations 4.1 Any of the parties under this Purchase Agreement are subject to the following conditionsobligation of Purchaser hereunder is conditional upon:
a) The representations 4.1.1 the Purchaser being satisfied in its sole and warranties contained herein shall absolute discretion with the results of a legal and financial due diligence review to be accurate as of conducted by it on the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Holding Company and the Trust (Company;
4.1.2 if required, the “relevant stock exchange, government and securities authority and regulator in the United States granting listing of the PACT Shares to be issued herein;
4.1.3 if required, a resolution at a meeting of the Directors of PACT approving this Agreement, the purchase of the Sale Shares, creating and giving authority for the issue of the Escrow Shares, the implementation of the transactions contemplated hereunder and all other matters incidental hereto in accordance with the provisions of PACT's articles of association and Bylaws and such rules, regulations and laws in force from time to time in the United States and which apply to PACT;
4.1.4 if required, the shareholders of PACT at a meeting of shareholders approving this Agreement, the purchase of the Sale Shares, creating and giving authority for the issue of the Escrow Shares, the implementation of the transactions contemplated hereunder and all other matters incidental hereto in accordance with the provisions of PACT's articles of association and Bylaws and such rules, regulations and laws in force from time to time in the United States and which apply to PACT;
4.1.5 all amounts outstanding to the Seller by the Holding Company Counsel”)and the Company have been either repaid to the Holding Company and the Company or otherwise waived; and
4.1.6 the Purchaser being satisfied that the accounts of the Holding Company and the Company can be consolidated into PACT's audited financial statement, shall have delivered an opinionincluding balance sheet and income statements in accordance with the US GAAP.
4.2 The Seller, dated the Closing DateHolding Company, addressed and the Company undertakes to disclose in writing to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer anything which will or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees prevent any of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates conditions from being satisfied at or documents are delivered prior to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the CompanyCompletion, as applicable, signed by immediately upon the Chief Executive OfficerSeller and/or the Holding Company and/or the Company becoming aware of such a situation.
4.3 From the date of this Agreement until Completion, President except for the transactions described herein or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer otherwise with the prior written consent of the Company, Purchaser:
(a) The Warrantor warrants and undertakes that they will cause the Holding Company and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) belowCompany to:
(i) conduct its Business in the representations ordinary course and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date consistent with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Datepast practices;
(ii) since use its best efforts to maintain in full force and effect the existence of the Holding Company and the Company;
(iii) promptly and timely prepare and file any financial reports and franchise tax returns and pay all taxes and assessments, if any, required to maintain the existence of the Holding Company and the Company;
(iv) keep records in which true and correct entries will be made of all material transactions by and with the Holding Company and the Company;
(v) duly observe all material requirements of governmental authorities unless contested in good faith by appropriate proceedings with the consent of the Purchaser;
(vi) promptly pay and discharge, or cause to be paid and discharged, when due and payable, all lawful taxes, assessments and governmental charges or levies imposed upon the income, profits, property or business of the Holding Company and the Company unless contested in good faith by appropriate proceedings with the consent of the Purchaser;
(vii) at all times comply with the provisions of all contracts, agreements and leases to which the Holding Company and the Company is a party, unless contested in good faith by appropriate proceedings with the consent of the Purchaser; and
(viii) to use best endeavors to procure that the employees of the Holding Company and the Company at the date of the Interim Financial Statements this Agreement remain and continue as employees after completion;
(as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
hb) The Guarantor Warrantor warrants and undertakes to cause the Holding Company and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.not to:
(i) Prior modify its [Memorandum or Articles of Association] [Bylaws];
(ii) cause or permit its liquidation or dissolution;
(iii) institute, or permit to be instituted against it, any proceeding, which remains undismissed for a period of [30] days after the Closing Datefiling thereof, the Guarantorseeking to adjudicate it as bankrupt or insolvent, the Company and the Trust shall have furnished to the Purchaser and its counsel such further informationor seeking liquidation, certificates and documents as the Purchaser winding-up, reorganization, arrangement, adjustment, protection, relief or composition of it or its counsel may reasonably request. If debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order or relief or the appointment of receiver, trustee or other similar official for it or for any substantial part of its property;
(iv) make a general assignment for the benefit of its creditors;
(v) except as agreed in this Agreement, declare or pay any dividend or make any distribution to any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreementits shareholders;
(vi) issue, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled atredeem, sell or dispose of, or at create any time prior toobligation to issue, the Closing Date by the Purchaser. Notice redeem, sell or dispose of, any shares of such cancellation shall be given to the Company and the Trust its capital stock (whether authorized but unissued or held in writing treasury);
(vii) effect any stock split, reclassification or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.combination;
Appears in 2 contracts
Sources: Share Purchase Agreement (Pacificnet Inc), Share Purchase Agreement (Pacificnet Inc)
Conditions. The obligations Any obligation of the parties Bank to make the Loan or advance any funds under this Purchase Agreement are the Note is subject to complete satisfaction of all of the following conditions:conditions precedent (but no advance made before satisfaction of any such conditions shall be deemed to be a waiver thereof in respect to any subsequent advance):
(a) This Agreement, duly executed and delivered by the Company;
(b) The representations Note to the Bank duly executed and warranties contained herein shall be accurate as delivered by the Company;
(c) The Company Pledge Agreement, duly executed and delivered by the Company;
(d) The Assignment, duly executed and delivered by the Company; and
(e) The other Security Documents duly executed and delivered to the Bank, and
(f) Certified copies of the date certificate of delivery incorporation and by-laws (or equivalent documents) of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and of resolutions of its Board of Directors authorizing the Trust (making and performance by the “Company Counsel”)of this Agreement, shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto Note and the Company shall have furnished Pledge Agreement, and the other Security Documents to which it is a party, and the transactions contemplated hereby and thereby.
(g) A certificate of appropriate officers of the Company in respect of each of its officers (i) who is authorized to execute and deliver, as the case may be, this Agreement, the Note and each of the Security Documents to which it is a party, and (ii) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purpose of signing documents and giving notices and other communications in connection with this Agreement and the other Credit Documents and the transactions contemplated hereby and thereby (and the Bank may conclusively rely on such certificate until it receives notice in writing from the Company, as the case may be, to the Purchaser a certificate signed contrary);
(h) Receipt by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated Bank of the Closing Date, addressed certificates evidencing the shares of Stock to be pledged by the Company pursuant to the PurchaserSecurity Documents, accompanied by undated stock powers duly executed in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials blank;
(provided, however, that copies of any such certificates or documents are delivered to the Purchaseri) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the An opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Company, dated as of the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Associationdate hereof, in substantially the form set out in Annex B of Exhibit D hereto;
(j) Such other documents as the Bank or counsel to the Bank shall reasonably request.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) No Default shall have occurred and be continuing and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, made by the Company herein and in the Trust in this Purchase Agreement are Security Documents to which it is a party shall be true and correct in all material respects on and as of the Closing Date such date with the same force and effect as if made on and as of such date.
(l) Payment of the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant Fee to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity3.1 hereof.
Appears in 2 contracts
Sources: Credit Agreement (First Commonwealth Corp), Credit Agreement (United Trust Inc /Il/)
Conditions. The obligations of the parties Agent hereunder shall be conditional upon the Agent receiving, and the Agent shall have the right on the Closing Date or on each Closing Date if there is more than one closing, on behalf of Subscribers to withdraw all Subscription Agreements delivered and not previously withdrawn, unless the Agent receives, on or prior to the Closing Date:
(a) a legal opinion of the Corporation's counsel addressed to the Agent, the Agent's counsel and the Subscribers in form and substance reasonably satisfactory to the Agent, with respect to such matters as the Agent may reasonably request relating to the offering, issuance and sale of the Convertible Debentures, including, without limitation, that as at the Closing Date:
(i) the Corporation is valid and subsisting under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to carry on its business as now conducted by it and to own its assets and is qualified to carry on business under the laws of each jurisdiction in which it carries on a material portion of its business;
(ii) the Corporation has full corporate power and authority to enter into this Purchase Agreement, the Indenture, the Security Agreement and the Subscription Agreements and to perform its obligations set out herein and therein, and this Agreement has been and the Security Agreement, the Subscription Agreements and the Indenture will, on the Closing Date, be duly authorized, executed and delivered by the Corporation and constitute legal, valid and binding obligations of the Corporation enforceable against the Corporation in accordance with their respective terms, subject to applicable bankruptcy, insolvency, moratorium, reorganization and other laws and equitable principles affecting creditors' rights generally, the statutory and equitable powers of the courts in Canada or the United States to stay proceedings before them and the execution of judgments and the fact that specific performance and injunctive relief are equitable remedies which may be ordered by a court in its discretion and, accordingly, may not be available as a remedy in an action to enforce a covenant and subject to the following conditionsfact that the rights to indemnity, contribution and waiver set forth herein may be limited by applicable laws or the public policy underlying such laws;
(iii) the execution and delivery of this Agreement, the Indenture, the Security Agreement and the Subscription Agreements and the fulfillment of the terms hereof or thereof by the Corporation and the performance of and compliance with the terms of this Agreement, the Indenture, the Security Agreement and the Subscription Agreements by the Corporation do not and will not result in a breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under:
A. any applicable laws of the States of New York or Delaware or the federal laws of the United States applicable therein;
B. any term or provision of the articles, by-laws or resolutions of the directors or shareholders of the Corporation;
C. of which the Corporation's counsel is aware, any of the terms or provisions of any mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Corporation is a party or by which it is bound on the Closing Date; or
D. of which Corporation’s counsel is aware, any judgment, decree or order applicable to the Corporation, which default or breach might reasonably be expected to materially adversely affect the business, operations, capital or condition (financial or otherwise) of the Corporation or its properties or assets.
(iv) the form and terms of the certificates representing the Convertible Debentures have been approved and adopted by the board of directors of the Corporation and conform with applicable law and the constating documents of the Corporation;
(v) the Common Shares to be issued on conversion of the Convertible Debentures have been reserved and allotted for issuance and, when issued upon conversion of the Convertible Debentures will be validly issued, fully paid and non-assessable Common Shares of the Corporation;
(vi) all Applicable Securities Laws of the Selling Jurisdictions and the United States of America in connection with the creation, offering, issuance and sale of the Convertible Debentures and Underlying Securities have been complied with by the Corporation and no registration under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”), is required for the offer and sale of the Convertible Debentures and the issuance of the Underlying Securities upon conversion of the Convertible Debentures, assuming distribution by the Corporation in compliance with the relevant provisions of such Applicable Securities Laws;
(vii) The Security Agreement creates a valid security interest in the Collateral in favor of the Debenture Trustee for the benefit of the Debentureholders to secure the Obligations (as such term is defined in the Security Agreement). Under Article 9 of the Uniform Commercial Code as enacted in the State of New York (the “UCC-NY”), while a debtor is “located” in a jurisdiction, the local law of that jurisdiction governs perfection of a security interest granted by such debtor which can be perfected by the filing of a Uniform Commercial Code financing statement. Under the UCC-NY, the Corporation is “located” in the State of Delaware and the Uniform Commercial Code in effect in the State of Delaware (the “UCC-DE”) governs perfection of a security interest granted by such Company which can be perfected by the filing of a Uniform Commercial Code financing statement in the office of the Secretary of State of the State of Delaware. The Financing Statement is sufficient in form to perfect a security interest of the Debenture Trustee in the Collateral, to the extent a security interest in such Collateral may be perfected under the UCC-DE by filing a financing statement with the Secretary of State of Delaware. Upon proper filing of the Financing Statement with the Secretary of State of Delaware, the Debenture Trustee will have a perfected security interest in the Collateral to the extent that a security interest can be perfected therein by the filing of a financing statement with the Secretary of State of Delaware.
(viii) The choice of Alberta law to govern this Agreement, the Indenture and the Subscription Agreements and the choice of New York law to govern the Security Agreement are valid choices of law under the laws of the States of Delaware and New York and the Province of Alberta and will accordingly be applied by courts in such jurisdictions.
(ix) The State of New York has enacted the Uniform Foreign Country Money Judgments Recognition Act, which appears in the Consolidated Laws of New York at Sections 5301 to 5309. Under those Sections, a judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for (a) The representations taxes, or (b) a fine or other penalty, or (c) in matrimonial or family matters, is conclusive between the parties to the extent that it grants or denies recovery of a sum of money, and warranties contained herein the foreign judgment is enforceable in the same manner as the judgment of another state which is entitled to full faith and credit but is not conclusive under certain circumstances listed in the statute. In particular, we note that Section 5305(a)(3) of Consolidated Laws of New York provides that a foreign judgment shall not be accurate as refused recognition for lack of personal jurisdiction if the defendant prior to the commencement of the date proceedings had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved. We also note that the Corporation has agreed to the submission to the jurisdiction of the courts of Alberta under this Agreement, the Indenture and the Subscription Agreements. We are aware of no statutory or judicial authority under New York law that would suggest that the Corporation’s submission to the jurisdiction of the courts of Alberta under such documents would not be given effect in New York. and additionally relating to:
(i) the distribution of the Underlying Securities issuable on conversion of the Convertible Debentures;
(ii) the first trade in the Convertible Debentures and the Common Shares issuable on conversion of the Convertible Debentures; and
(iii) the authorized and issued capital of the Corporation; and as to all other legal matters, in any way connected with the Offering and issuance, sale and delivery of the Preferred SecuritiesConvertible Debentures as the Agent may reasonably request. It is understood that the Corporation's counsel may rely on the opinions of local counsel acceptable to it as to matters governed by the laws of jurisdictions other than the jurisdiction of residence of such counsel and on certificates of officers of the Corporation and public officials as to relevant matters of fact.
(b) Winston & ▇▇▇▇▇▇ LLP, counsel for a certificate of the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, Corporation dated the Closing Date, addressed to the Purchaser Agent and The Bank signed on the Corporation's behalf by its President or such other officer or director of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished Corporation satisfactory to the Purchaser a certificate signed by the Company’s Chief Executive OfficerAgent, Presidentacting reasonably, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) belowcertifying that:
(i) the Corporation has complied with and satisfied in all material respects all covenants and conditions of this Agreement on its part to be complied with or satisfied at or prior to the Closing Time except to the extent same have been waived by the Agent;
(ii) the representations and warranties of the Guarantor, the Company and the Trust Corporation set forth in this Purchase Agreement and, where applicable, in the Subscription Agreements are true and correct in all material respects on and as of at the Closing Date with the same effect Time, as if made on at such time;
(iii) no event of a nature referred to in subsection 12(b)(i), (iii), (vi) or (ix) has occurred since the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either date of their part to be performed this Agreement or satisfied pursuant to the Operative Documents knowledge of such officer is pending, contemplated or threatened;
(iv) the Corporation has made and/or obtained, at or prior to the Closing DateTime, all necessary filings, approvals, consents and acceptances under Applicable Securities Laws, and under any applicable agreement or document to which the Corporation is a party or by which it is bound in respect of the execution and delivery of this Agreement and the offering and sale of the Convertible Debentures and the consummation of the transactions contemplated hereby; and
(v) no order suspending the sale or ceasing the trading of securities of the Corporation has been issued and no proceedings for that purpose have been instituted or are pending or to the knowledge of such officer are threatened under Applicable Securities Laws;
(iic) since definitive certificates for the date Convertible Debentures subscribed for pursuant to the Offering, registered in such name or names as the Agent shall notify the Corporation in writing not less than 24 hours prior to the Closing Time, provided such certificates registered in such names may, subject to receipt by the Corporation, be delivered in advance of the Interim Financial Statements Closing Date to the Agent or such other parties in such locations as the Agent may direct and the Agent and the Corporation may agree upon;
(as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets d) executed copies of the Guarantor, Subscription Agreements in form and substance reasonably satisfactory to the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor Agent and the Company Agent's counsel;
(e) payment of all commissions payable by the Corporation to the Agent pursuant to section 8 and all expenses payable by the Corporation pursuant to section 9, provided that such payment may be made by deducting such fees and expenses from the gross proceeds of the Offering in accordance with Section 10(b); and
(f) such other matters as may be reasonably requested by the Agent. The foregoing conditions are for the sole benefit of the Agent and may be waived in whole or in part by the Agent at any time and without limitation, and the Agent shall have executed the Parent Guarantee Agreement right, if any of the foregoing conditions are not met, on behalf of potential Subscribers, to withdraw all Subscription Agreements delivered and delivered same to The Bank not previously accepted by the Corporation or withdrawn or rescinded by such persons. If any of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the foregoing conditions are not met on or before the Closing Date, the Guarantor, the Company and the Trust shall have furnished Agent may terminate its obligations under this Agreement without prejudice to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel any other remedies it may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityhave.
Appears in 2 contracts
Sources: Agency Agreement (Red Mile Entertainment Inc), Agency Agreement (Red Mile Entertainment Inc)
Conditions. 5.1 The obligations agreement of the parties under this Purchase Agreement are Lenders and the Agent contained in clauses 3 and 4 shall be expressly subject to the following conditions:
a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form conditions set out in Annex A-I hereto clauses 5.2 and 5.
5.2 The Borrowers shall deliver to the Agent or its representative not less than three (3) Banking Days prior to the Voluntary Prepayment Date such of the following documents all in form and substance satisfactory to the Agent and its advisers and, if necessary, certified in such manner as the Agent shall in its absolute discretion require:
(a) a certificate duly signed by a director of each of the Borrowers and the Company shall have furnished other Security Parties confirming that there has been no amendment to their respective constitutional documents since they were last submitted to the Purchaser Agent, or a copy certified as a true and complete up-to-date copy by a director of each of the Borrowers and the other Security Parties of their respective constitutional documents and an up-to-date list of their respective of directors, officers and shareholders;
(b) a certificate signed by of resolutions of the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, board of directors and trustees the shareholders of each of the Guarantor, the Company Borrowers and the Trust other Security Parties approving and by government officials (provided, however, that copies of authorising a person or persons to execute this Agreement and any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, the Agent may deem appropriate relevant;
(c) copies of the latest annual reports and audited accounts of the Borrowers;
(d) evidence that a minimum balance of $100,000 has been credited as a basis liquidity reserve to the Operating Account in respect of each Ship;
(e) certified true copies of all approvals, consents, licences and authorisations from all governmental authorities and agencies required for or in connection with the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice execution, delivery, performance, validity and that they are not admitted to practice in enforceability of this Agreement and any other jurisdiction and are documents as the Agent may deem relevant;
(f) (if not experts in already supplied) copies, certified by a director of the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are relevant Borrower to be governed or qualified bytrue, or that they are otherwise subject complete and up-to-date copies, any treatise, written policy or other document relating of a certificate issued pursuant to legal opinions, including, without limitation, the Legal Opinion Accord Article 7 of the ABA International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 of each Ship and, if either Ship enters or trades through the waters of the United States of America, a certificate issued pursuant to Section 1016(a) of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇Oil Pollution ▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLPand Section 108(a) of the Comprehensive Environmental Response, dated the Closing Date, addressed to the Purchaser Compensation and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇Liability ▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for as amended, in accordance with US Coast Guard Regulations, 33 CFR Part 138 of the Property Trustee relevant Ship;
(g) a deed of guarantee in a form acceptable by the Lenders and the Indenture TrusteeAgent, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed duly executed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer Guarantor;
(h) such satisfactory legal opinions of counsel as the Company, and the Trust Agent shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, require; and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) such other documents as the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant Agent may reasonably require.
5.3 The Borrowers shall deliver to the Operative Documents at Agent or its representative on or prior to the Closing DateVoluntary Prepayment Date such of the following documents all in form and substance satisfactory to the Agent and its advisers and, if necessary, certified in such manner as the Agent shall in its absolute discretion require:
(a) evidence that the fees, costs and expenses then due from the Borrowers pursuant to clause 5 of the Loan Agreement have been paid including receipt by the Agent of a restructuring fee of $300,000;
(iib) since the date evidence that each Borrower has made a voluntary prepayment of the Interim Financial Statements relevant Tranche in an amount of not less than $3,085,000;
(as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets c) evidence of the Guarantor, amount in Dollars that the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior has credited to the Closing Dateaccount of Maritime Capital Shipping (HK) Limited, which amount in Dollars shall not be less than the Guarantor, sum transferred by any Borrower from any Account (up to a maximum amount of $500,000 in aggregate as agreed by the Company and the Trust shall have furnished Agent) to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any same account of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.Maritime Capital Shipping (HK)
Appears in 2 contracts
Sources: Loan Agreement (Seanergy Maritime Holdings Corp.), Loan Agreement (Seanergy Maritime Holdings Corp.)
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment is subject to satisfaction of the following conditions:
(a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), Borrowers shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser executed and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion Collateral Agent (or shall not state that they are have caused to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating executed and delivered to legal opinions, including, without limitationthe Collateral Agent by the appropriate Persons), the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trustfollowing, in each case dated in form and substance satisfactory to the Closing Date, andCollateral Agent:
(i) a Secured Promissory Note payable to the order of each of the Lenders, in the case original principal amount equal to such Lender’s Term Loan B Commitment; an amended and restated Secured Promissory Note payable to the order of each of the Guarantor Lenders, in the original principal amount equal to such Lender’s Term Loan A Commitment; and an amended and restated Secured Promissory Note payable to the Companyorder of each of the Lenders, as in the original principal amount equal to (i) and such Lender’s Revolving Credit Commitment;
(ii) below an amendment to the Subordination Agreement acknowledging and permitting the increased Aggregate Revolving Credit Commitments and the increased Aggregate Term Loam Commitments;
(iii) All of the Security Documents, including without limitation, Uniform Commercial Code Financing Statements and Termination Statements, control agreements from depository institutions, amendments to the pledge agreement from EBC to cover the ownership interests of each New Borrower and delivery of all certificates evidencing ownership interests of each New Borrower and all mortgages, deeds of trusts and amendments thereto, lessor consents and waivers and related title insurance policies, if any, required by Collateral Agent or its counsel, in connection with New Borrowers’ compliance with the provisions of Section 2.16 of the Credit Agreement, as amended hereby, to the extent not previously delivered to Collateral Agent;
(iv) Certified copies (attached as required in Part A of the form attached as Schedule 3.01 to the Credit Agreement) of all corporate or other action taken by each New Borrower and the Equity Holders of each New Borrower authorizing the execution and delivery of the Notes to which it is a party (including all resolutions authorizing the execution, delivery and performance of this Amendment by such New Borrower and the transactions contemplated hereby, the incurrence of the Obligations and the granting of the Liens contemplated by the Loan Documents to which it is a party, to the extent required by the Organizational Documents applicable thereto) which have been properly adopted and have not been modified or amended;
(v) A copy of the Organizational Documents of each New Borrower, with any amendments thereto, certified by a Duly Authorized Officer of such New Borrower (attached as required in Part A of the form attached as Schedule 3.01 to the Credit Agreement);
(vi) The names, true signatures and incumbency of all Duly Authorized Officers of each New Borrower which is party to a Loan Document;
(vii) For each New Borrower, certificates of legal existence and good standing (and, if available, tax matters) issued as of a reasonably recent date by the Secretary of State of such New Borrower’s state of formation or organization and of any other state in which such New Borrower is authorized or qualified to transact business or in which any Collateral owned by such New Borrower is located;
(viii) True and correct copies of all Licenses, and all other material governmental licenses, franchises and permits, all material FCC Consents, Final Orders and other third party consents and all other material leases, contracts, agreements, instruments and other documents as the Collateral Agent may require;
(ix) Such Lien Searches with respect to the New Borrowers and any other third parties as Collateral Agent shall require, the results thereof to be satisfactory to Collateral Agent;
(x) The Budget and Projections (each updated to take into account contemplated Acquisitions) and historical financial statements of the New Borrowers, to the extent not previously delivered to the Collateral Agent;
(xi) The Environmental Site Assessments for all owned Properties, the Environmental Questionnaires for all leased Properties (as required by Lenders) and similar diligence referenced to in Section 4.21 of the Credit Agreement, as amended hereby, to the extent not previously delivered;
(xii) Certificates of insurance evidencing the insurance coverage and policy provisions required in the case Credit Agreement, as amended hereby, for the New Borrowers;
(xiii) The Collateral Agent’s receipt of an appraisal of each of the TrustStations owned or to be owned by the Borrowers, setting forth the current fair market value and Compressed Sale Value of such Station and otherwise satisfactory to Collateral Agent and Lenders; and
(xiv) Such other supporting documents and certificates as to the Collateral Agent, the Administrative Agent, or the Lenders may reasonably request.
(ib) belowCollateral Agent shall have received:
(i) the favorable written opinion of general corporate counsel to the New Borrowers dated as of the date hereof, addressed to the Collateral Agent, the Administrative Agent, and Lenders and reasonably satisfactory to the Collateral Agent in scope and substance; and
(ii) the favorable written opinion of special communications counsel to the Borrowers, dated as of the date hereof, addressed to the Collateral Agent, the Administrative Agent, and Lenders and reasonably satisfactory to the Collateral Agent, the Administrative Agent, in scope and substance.
(c) The representations and warranties of each Borrower and its Affiliates set forth in the GuarantorCredit Agreement, as amended hereby, and in the Company and the Trust in this Purchase Agreement are other Loan Documents shall be true and correct in all material respects on and as of the Closing Date with effective date of this Amendment and each Borrower shall have performed all obligations which were to have been performed by it hereunder prior to the same effect as if made on effective date of this Amendment (unless waived by the Closing DateCollateral Agent or the Required Lenders).
(d) As of the effective date of this Amendment, and since the Company dates of those certain Projections attached as Schedule 4.17 to the Credit Agreement and other financial documents delivered to the Trust Collateral Agent prior thereto, no event or circumstance shall have complied occurred which could reasonably be expected to have a Material Adverse Effect.
(e) Collateral Agent shall have completed satisfactory reviews of Borrowers’ business plans and Projections, adjusted for the planned Acquisitions.
(f) Borrowers shall have paid (i) to the Collateral Agent on or before the effective date of this Amendment (A) for the ratable account of each Revolving Credit Lender, a non-refundable fee in the amount of $55,000, and (B) for the ratable account of each Term Loan B Lender, a non-refundable fee in the amount of $95,000, (ii) all material respects with all other fees owed to the agreements Collateral Agent, the Administrative Agent, the Lenders and satisfied in all material respects all the conditions on either of their part to be performed or satisfied respective Affiliates pursuant to the Operative Documents at or prior Credit Agreement, as amended hereby, and (iii) all legal fees and expenses of counsel to Agent and Lenders incurred through the Closing Date;date hereof.
(iig) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same All legal matters incident to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed reasonably satisfactory to be a representation and warranty of counsel for the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityCollateral Agent.
Appears in 2 contracts
Sources: Credit Agreement (Coconut Palm Acquisition Corp.), Credit Agreement (Coconut Palm Acquisition Corp.)
Conditions. (a) The obligation of either party to consummate the transactions contemplated hereunder shall be subject to: (i) the continued accuracy of all the representations and warranties of the other party made hereunder and the performance and satisfaction in all material respects of the agreements and obligations of the parties other party hereunder; (ii) the obtaining of those consents described in Schedule 2.3 hereto; and (iii) the contemporaneous closing of Tracker's purchase of shares of Mako Common Stock under this Purchase Agreement are the Tracker/Mako Agreement.
(b) Unless waived by Tracker, the obligation of Tracker to Close is also subject to the following conditions:
a) The representations and warranties contained herein shall be accurate as Tracker's receipt of the date an opinion of delivery of the Preferred Securities.
b) Winston Stroock & Stroock & ▇▇▇▇▇▇ LLP, counsel for to CAVC in form and substance reasonably satisfactory to Tracker, dated as of the GuarantorClosing Date to the effect that: (i) CAVC is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Florida; (ii) CAVC has full power and authority to make, execute and deliver the Agreement, and to perform all of its obligations thereunder; (iii) the Agreement has been duly authorized and approved by all necessary corporate action of CAVC; (iv) the Agreement has been duly executed and delivered and constitutes the valid and binding obligation of CAVC, enforceable in accordance with its terms, subject to bankruptcy, insolvency and similar laws affecting the enforcement of creditors' rights generally and to the availability of equity remedies in general; and (v) to such counsel's knowledge, there is no litigation or proceeding pending or threatened against CAVC related to the consummation of the transactions contemplated by the Agreement.
(c) Unless waived by CAVC, the Company and the Trust (the “Company Counsel”), shall have delivered obligation of CAVC to Close is also subject to CAVC's receipt of an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP▇, L.L.P., counsel to Tracker in form and substance reasonably satisfactory to CAVC, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to effect that: (i) Tracker is a limited partnership duly organized, validly existing and in good standing under the Closing Date;
laws of the State of Missouri; (ii) since Tracker has full power and authority to make, execute and deliver the date Agreement, and to perform all of its obligations thereunder; (iii) the Interim Financial Statements Agreement has been duly executed and delivered and constitutes the valid and binding obligation of Tracker, enforceable in accordance with its terms, subject to bankruptcy, insolvency and similar laws affecting the enforcement of creditors' rights generally and to the availability of equity remedies in general; (as defined below)iv) the Agreement has been duly authorized and approved by all necessary action of Tracker; and (v) to such counsels' knowledge, there has been is no material adverse change in the condition (financial litigation or other), earnings, business proceeding pending or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior threatened against Tracker related to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any consummation of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of by the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityAgreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Tracker Marine Lp), Stock Purchase Agreement (Mako Marine International Inc)
Conditions. At Closing, the Companies shall deliver to the PaineWebber Parties one or more stock certificates registered in the name of PaineWebber representing the number of Purchase Shares set forth in Section 1 above. The obligations obligation of the parties under this Companies to complete the purchase and sale of the Purchase Agreement are Shares and deliver such stock certificate(s) to the PaineWebber Parties at the Closing shall be subject to the following conditions:
a, any one or more of which may be waived by both of the Companies acting together: (i) The representations and warranties contained herein shall be accurate receipt by the Companies of immediately available funds (or other mutually agreed upon form of payment) in the full amount of the purchase price specified in Section 2 for the Purchase Shares being purchased hereunder, (ii) the accuracy in all material respects as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed of the representations and warranties made by the PaineWebber Parties herein and the fulfillment, in all material respects, of those undertakings of the PaineWebber Parties to be fulfilled prior to the Purchaser Closing, (iii) execution and The Bank delivery of New York Trust Companythe Adjustment Agreement, National Association, in substantially (iv) receipt by the form set out in Annex ACompanies of a cross-I hereto and the Company shall have furnished receipt with respect to the Purchaser Purchase Shares executed by PaineWebber Agent on behalf of PaineWebber and (v) receipt by the Companies of a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer an officer or Assistant Treasurer, dated the Closing Date, addressed authorized representative of PaineWebber Agent to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, effect that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust PaineWebber Parties set forth in this Purchase Agreement Section 5 hereof are true and correct in all material respects on as of the date of this Agreement and as of the Closing Date with Date. The obligation of PaineWebber to accept delivery of such stock certificate(s) and to pay for the same effect Purchase Shares evidenced thereby shall be subject to the following conditions, any one or more of which may be waived by the PaineWebber Parties: (i) the accuracy in all material respects, as if made on of the Closing Date, of the representations and warranties made by the Companies herein and the Company and the Trust have complied fulfillment, in all material respects with all respects, of those undertakings of the agreements and satisfied in all material respects all the conditions on either of their part Companies to be performed or satisfied pursuant to the Operative Documents at or fulfilled prior to the Closing Date;
Closing, (ii) since receipt by the date PaineWebber Parties of all opinions, letters and certificates to be delivered by the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same Companies pursuant to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement (iii) execution and all delivery of the Purchaser’s obligations hereunder may be canceled atAdjustment Agreement, or at any time prior to, the Closing Date and (iv) receipt by the Purchaser. Notice PaineWebber Parties of such cancellation shall be given a cross-receipt with respect to the Company and purchase price for the Trust in writing or Purchase Shares executed by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityCompanies.
Appears in 2 contracts
Sources: Purchase Agreement (Wyndham International Inc), Purchase Agreement (Wyndham International Inc)
Conditions. The obligations This Assumption Agreement shall not become effective until the Additional Guarantor shall have delivered to the Global Administrative Agent a certificate of the parties under this Purchase Agreement are subject Secretary or any Assistant Secretary of the Additional Guarantor (or other officer or director of the Additional Guarantor which is duly authorized to keep the minute book or similar record of the Additional Guarantor), in form and substance satisfactory to the following conditions:
aGlobal Administrative Agent, dated as of the date hereof, certifying as to (i) The representations the resolutions of the Board of Directors (or similar governing body) of the Additional Guarantor authorizing the execution, delivery and warranties contained performance of this Assumption Agreement and of all instruments contemplated herein shall to be accurate executed and delivered by the Additional Guarantor in connection herewith (a copy of such resolutions to be incorporated into or attached as an exhibit to such certificate), such certificate to state that said copy is a true and correct copy of such resolutions and that such resolutions were duly adopted and have not been amended, superseded, revoked or modified in any respect and remain in full force and effect as of the date of delivery such certificate, (ii) the election, incumbency and signatures of the Preferred Securities.
bofficer or officers (or other official) Winston & ▇▇▇▇▇▇ LLPof the Additional Guarantor executing and delivering this Assumption Agreement and each other instrument or document furnished in connection herewith, counsel for (iii) the Additional Guarantor, the Company ’s certificate or articles of incorporation and the Trust bylaws (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed or other organizational and governance documents) with a copy of such documents to be attached to the Purchaser certificate, and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaseriv) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents information as the Purchaser Global Administrative Agent or its counsel may any Lender shall reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 2 contracts
Sources: u.s. Revolving Credit Agreement (Brown Tom Inc /De), Canadian Revolving Credit Agreement (Brown Tom Inc /De)
Conditions. The obligations of the parties Buyer’s obligation to close under this Purchase Agreement are is subject to the satisfaction of all of the following conditionsconditions (any one of which may be waived in whole or in part by Buyer by notice given in accordance with Article 19) at or prior to Closing), which conditions shall be applied to each of the Closings and the particular Projects included therein:
a(i) The Seller shall have performed and satisfied each and all of Seller’s obligations under this Agreement with respect thereto.
(ii) Each and all of Seller’s representations and warranties contained herein set forth in this Agreement shall be accurate as of true and correct in all material respects at the date of delivery of Effective Date and the Preferred SecuritiesClosing Date.
b(iii) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), Seller shall have delivered to Buyer the Tenant Estoppel Certificates from (i) any Tenant that leases 15,000 or more of the rentable square footage in any one Building (collectively, the “Major Tenants”); and (ii) such other Tenants who, together with the Major Tenants, lease at least eighty-five percent (85%) of the leased rentable square feet of the Projects in the aggregate for each Tranche. Each tenant estoppel certificate shall be in the form required by such Tenant’s Lease or substantially in the form attached hereto as Exhibit F (each, a “Tenant Estoppel Certificate”). Any qualification of any assertion in the Tenant Estoppel Certificate regarding the status of the performance of any of landlord’s obligations under a Lease that such assertion is made “to Tenant’s knowledge” or similar qualification made by a Tenant shall be acceptable. A standard Statement of Lease from any GSA Tenant shall be deemed acceptable in lieu of a Tenant Estoppel Certificate. Any Lease that terminates or expires within thirty (30) days after the Closing Date shall not be included in the calculation of the required Tenant Estoppel Certificates, and Seller shall not be required to deliver a Tenant Estoppel Certificate from such Tenants.
(iv) Title Insurer shall be prepared, and irrevocably committed, to issue an opinionALTA Owners Title Insurance Policy for each Project, to be dated effective no earlier than the Closing Date, addressed that (i) is in the form customarily used for similar transactions in state in which the Project is located, (ii) is in at least the face amount of the Purchase Price allocated to such Project, (iii) shows fee title to the Purchaser Project to be vested of record in Buyer (or a SPE owned in its entirety by the Buyer or a DHSPE), and (iv) provides for no title exceptions other than the Permitted Exceptions.
(v) Following the Effective Date, no Major Tenant has commenced a voluntary case or been the subject of a petition for involuntary bankruptcy under the United States Bankruptcy Code (Title 11 of the United States Code).
(vi) The Bank rights of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company third parties to purchase one or more Projects shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinionsbeen waived, including, without limitation, the Legal Opinion Accord right of purchase listed on Exhibit O attached hereto. If any purchase right is exercised by a third party, this Agreement shall terminate as to such Project or Projects and this Agreement shall otherwise continue in full force and effect, and upon such termination Buyer will receive a refund of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated Money allocable to such Project or Projects from Escrow Agent and the Closing Date, addressed parties shall have no further rights or obligations hereunder with respect to the Purchaser and The Bank of New York Trust Companyapplicable Project(s), National Association, in substantially the form set out in Annex B heretoexcept for those which expressly survive such termination.
d(vii) The Purchaser shall have received With respect to each of the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for Tranche 2 Closing and the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National AssociationTranche 3 Closing, the Delaware Trustee and condition more fully described on Exhibit P attached hereto (the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse ChangeCapital Contingency”).
h(viii) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any satisfaction of the conditions specified precedent set forth in Exhibit Q attached hereto (the “Additional Buyer Conditions”). Upon learning of a failure of a condition in this Section 3 shall not have been fulfilled when and as provided Article 8, or any other condition in this Purchase Agreement, this Purchase Agreement Buyer shall promptly notify Seller thereof, and all the Purchaser’s obligations hereunder may be canceled atSeller shall have thirty (30) days to cure said failure, or at any time prior to, in the Closing Date by event that the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee failure of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall condition cannot be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.cured within thirty
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Cb Richard Ellis Realty Trust)
Conditions. The obligations amendments provided for pursuant to Section I hereof shall become effective only upon satisfaction of the parties under this Purchase Agreement are subject to the following conditionsconditions precedent:
(a) The representations Agent shall have received each of the following, in form and warranties contained herein substance satisfactory to the Agent and its counsel.
(i) This Amendment and amended and restated Revolving Credit Notes executed by the Co-Borrowers in favor of each Bank;
(ii) a certificate of the Secretary of Compare Generiks, Inc. (the "New Guarantor") dated the date of this Amendment, attesting to all corporate action taken by such entity, including resolutions of its Board of Directors authorizing the execution, delivery and performance of its Guarantee and each other document to be delivered pursuant to this Agreement, together with certified copies of the certificate or articles of incorporation and the by-laws of the New Guarantor; and, such certificate shall be accurate state that the resolutions and corporate documents thereby certified have not been amended, modified, revoked or rescinded as of the date of delivery such certificate;
(iii) a certificate of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for Secretary of the New Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed certifying the names and true signatures of the officers of such entity authorized to sign the Facility Documents and the other documents to be delivered by such entity under this Agreement;
(iv) a certificate of a duly authorized officer of each of the Co-Borrowers, dated the date of this Agreement, stating that the representations and warranties in Article 6 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(v) a Guarantor Security Agreement duly executed by the New Guarantor, together with (A) fully completed and executed financing statements on Form UCC-1, in proper form for filing duly filed under the Uniform Commercial Code in all jurisdictions necessary or, in the reasonable discretion of the Agent, desirable to perfect the security interests to be granted hereunder and under the Guarantor Security Agreement and (B) UCC search results identifying all of the financing statements on file with respect to the Purchaser and The Bank New Guarantor in all jurisdictions referred to under clause (A) hereof, indicating that no party claims an interest in any of the Collateral;
(vi) a favorable opinion of counsel for the New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, Guarantor dated the Closing Date, addressed in form and substance satisfactory to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors Agent and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Dateits counsel;
(iivii) since satisfactory evidence that the date New Guarantor is duly organized, validly existing and in good standing under the laws of the Interim Financial Statements their respective jurisdictions of incorporation and each other jurisdiction where qualification is necessary; and
(as defined below)viii) such other documents, there has been no material adverse change in the condition (financial or other)instruments, earningsagreements, business or assets of the Guarantorapprovals, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor opinions and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents evidence as the Purchaser or its counsel Agent may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityrequire.
Appears in 2 contracts
Sources: Credit Agreement (Futurebiotics Inc), Credit Agreement (PDK Labs Inc)
Conditions. The obligations
2.1 Completion of this Agreement is conditional upon the fulfilment or waiver (if applicable) of the parties following conditions (“Conditions”):
(i) no indication being received prior to Completion from the Stock Exchange or the SFC to the effect that the listing of the Subscription Shares on the Main Board of Stock Exchange shall or may be withdrawn or objected to, (ii) the trading of the Shares on the Stock Exchange not having been suspended for a period longer than three (3) consecutive trading days, save for any temporary suspension as agreed by the Subscriber, and (iii) neither the Stock Exchange nor the SFC having indicated that the trading of the Shares on the Stock Exchange will be suspended, cancelled or withdrawn before the Completion or that it will object to, or it will impose conditions on, the continued listing of the Shares on the Stock Exchange based on reasons arising from the transactions contemplated in this Agreement;
(b) the listing committee of the Stock Exchange granting listing of and permission to deal in the Subscription Shares and such listing and permission not subsequently revoked prior to Completion (the “Listing Approval”);
(c) the passing of the relevant resolutions by way of poll at the EGM by Shareholders who are entitled to vote and who are not required to abstain from voting under the Listing Rules, the Takeovers Code and other applicable laws and regulations for approving this Purchase Agreement and the transactions contemplated hereunder (including the allotment and issue of the Subscription Shares under a specific mandate);
(d) with respect to Subscriber’s obligations to consummate the Completion only, the Warranties made or given by the Company set forth in clause 3.1 of SCHEDULE 1 to this Agreement are subject to the following conditions:
a) The representations true, accurate, and warranties contained herein shall be accurate not misleading in all respects as of the date of delivery hereof and as of the Preferred Securities.Completion Date;
b(e) Winston & ▇▇▇▇▇▇ LLPwith respect to Subscriber’s obligations to consummate the Completion only, counsel for the Guarantor, any other Warranties made or given by the Company under this Agreement (except for those set forth in clause 3.1 of SCHEDULE 1 to this Agreement) are true, accurate and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, not misleading in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely all material respects as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantordate hereof and as of the Completion Date;
(f) with respect to Subscriber’s obligations to consummate the Completion only, the Company and the Trust and by government officials there shall not been any material adverse change (provided, however, that copies of any such certificates or documents are delivered to the Purchasereffect) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law financial, business or trading position of any other jurisdiction. Such Company Counsel opinion shall not state that they are the Group immediately before Completion;
(g) receipt of all consents, clearances, approvals, permissions, license, authorization and waivers required to be governed obtained from, and all registrations, applications, notices and filings required to be made with or qualified by, or that they are otherwise subject provided to, any treatise, written policy Governmental Authority under or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Associationin connection with any applicable laws, in substantially connection with the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion implementation of ▇▇▇▇▇▇▇▇this Agreement, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:which includes:
(i) filings with and receipt of clearances from the representations and warranties State Administration for Market Regulation of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed PRC or satisfied pursuant to the Operative Documents at or prior to the Closing Date;its local counterparts for merger review; and
(ii) since filings with the date Ministry of Commerce of the Interim Financial Statements PRC, the National Development and Reform Commission of the PRC, State Administration of Foreign Exchange of the PRC or their respective local counterparts for overseas investment (as defined belowif applicable) (all the regulatory clearances referred in Clause 2.1(f), there has been no material adverse change “Regulatory Clearances”); and
(h) Sale and Purchase Completion in accordance with the condition (financial or other), earnings, business or assets terms and conditions under the Share Purchase Agreement.
2.2 None of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company Parties shall have executed the Parent Guarantee Agreement and delivered same right to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If waive any of the conditions specified Conditions under Clauses 2.1(a), 2.1(b), 2.1(c), 2.1(g) and 2.1(h). The Subscriber may in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or its absolute discretion at any time prior tobefore Completion waive the Conditions under Clauses 2.1(d), the Closing Date 2.1(e) and 2.1(f) in part of in full by the Purchaser. Notice of such cancellation shall be given notice in writing to the Company and Company. For the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee avoidance of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.doubt,
Appears in 2 contracts
Sources: Subscription Agreement, Subscription Agreement
Conditions. The following obligations of the parties under this Purchase Agreement are subject Company shall be satisfied or fulfilled on or prior to the following conditionsdate of each Closing, unless otherwise agreed to in writing by the Placement Agent:
(a) The representations 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 warranties contained herein 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) 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, the sale of the Debentures, the Common Stock Warrants and the Placement Agent Warrants, and the registration of the Registrable Securities.
(b) There shall be accurate as have occurred no event which had a Material Adverse Effect on the Company or the Subsidiaries or any of their respective businesses, assets, prospects or the Company's securities since the date of delivery this Agreement.
(c) No litigation or administrative proceeding shall have been threatened or commenced against the Company or any of the Preferred SecuritiesSubsidiaries 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.
b(d) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the The Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser Placement Agent a certificate of its principal executive and The Bank financial officers as to the matters set forth in Paragraphs 8(a), (b) and (c) of New York Trust Company, National Associationthis Agreement and to the further effect that (i) neither the Company nor any Subsidiary is in default, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officerany respect, Presidentunder any note, a Senior Vice Presidentloan agreement, Chief Financial Officersecurity agreement, Treasurer or Assistant Treasurermortgage, dated the Closing Datedeed of trust, addressed to the Purchaserindenture, in substantially the form set out in Annex A-II hereto. In rendering their opinioncontract, the Company Counsel may rely as to factual matters upon certificates alliance agreement, lease, license, joint venture agreement, agreement or other documents furnished by officersinstrument to which it is a party, directors except as disclosed in the Financial Statements or the Memorandum and trustees of the Guarantor, the Company except where such default has not and the Trust and by government officials (provided, will not have a Material Adverse Effect; however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & . ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed has given notice of an event of default related to the Purchaser note payable to him in the amount of $750,000 as a result of an alleged late payment of interest. The Company attempted to deliver the interest and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for refused the Property Trustee check and therefore the Indenture Trustee, dated Company contends that the Closing Date, addressed note is not in default; (ii) the Company's representations and warranties contained in this Agreement are true and correct in all respects on such date with the same force and effect as if made on such date; (iii) there has been no amendment or changes to the PurchaserCompany'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, in substantially with or without the form set out in Annex D heretolapse of time or giving of notice, or both, would constitute a breach or default thereof by the Company or any Subsidiary or would cause acceleration of any obligation of the Company or any Subsidiary, or could adversely affect the business, operations, financial condition or prospects of the Company.
f(e) The Purchaser Placement Agent shall have received the opinion of Friedlob ▇▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & FingerTourtillot, P.A.LLC, special Delaware counsel for the Delaware TrusteeCompany, dated as of the Closing Date, addressed date in form and substance reasonably satisfactory to the Purchaser Placement Agent and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E heretoits counsel.
g(f) Each of the Guarantor and the The Company shall have furnished 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 Purchaser a certificate sale of the Guarantor Debentures and such other documents and certificates as are required.
(g) Subscriptions for at least the Minimum Amount of 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 result of the failure of the Company to comply with any of its obligations set forth in this Agreement, as applicable, signed this Agreement may be terminated by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished Placement Agent by written notice to the Purchaser a certificate of Company at any time prior to the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Initial Closing Date, andif, in the case of the Guarantor and the CompanyPlacement Agent's sole judgment, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all and/or Subsidiaries shall have sustained a loss that is material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries its Subsidiaries, taken as a whole, whether or not arising insured, by reason of fire, earthquake, flood, accident or other calamity, or from transactions occurring 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 ordinary course Company's Common Stock; (iii) material governmental restrictions have been imposed on trading in securities, generally or specifically, with respect to the Company's Common Stock (not in force and effect on the date of business this Agreement); (iv) a “banking moratorium shall have been declared by Federal or New York State authorities; (v) an outbreak of major international hostilities or other national or international calamity shall have occurred; (vi) the 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 Change”).
hEffect on the business, financial condition or financial statements of the Company or the market for the Common Stock; (vii) The Guarantor and the Common Stock shall have been delisted from NASDAQ or the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, received notice from NASDAQ advising the Company and of its intention to have the Trust 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 furnished to been, in the Purchaser and its counsel such further informationPlacement Agent's judgment, certificates and documents as a material decline in the Purchaser Dow ▇▇▇▇▇ Industrial Index or its counsel may reasonably request. If any the market price of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or Common Stock at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given subsequent to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee date of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacitythis Agreement.
Appears in 2 contracts
Sources: Debenture Placement Agreement (Williams Controls Inc), Debenture Placement Agreement (Williams Controls Inc)
Conditions. The obligations obligation of the parties under this Purchase Agreement are Lenders to make the Term Loans is subject to the satisfaction of the following conditions:
(a) The all representations and warranties contained herein of any of the Credit Parties set forth in this Agreement and in any other Loan Document shall be accurate true and correct in all material respects with the same effect as though made on and as of such date, except for (i) those representations and warranties which relate only to the Closing Date and (ii) those changes in such representations and warranties otherwise permitted by the terms of this Agreement;
(b) there shall have occurred no Material Adverse Effect, after giving effect to the Term Loans;
(c) no Default or Event of Default shall have occurred and be continuing;
(d) if requested by the Agent, it shall have received a certificate executed by a Responsible Officer of the Borrower as to the compliance with subparagraphs (a) through (c) above;
(e) the making of the Term Loans shall not be prohibited by, or subject the Agent or any Lender to, any penalty or onerous condition under any Legal Requirement; and
(f) the Borrower shall have paid all legal fees and other expenses of the type described in Section 10.9 hereof for which invoices have been presented through the date of the Term Loans;
(g) the Agent and the Lenders shall have received the following which shall be duly executed and in Proper Form:
(1) the Loan Documents executed by the applicable Credit Parties;
(2) a certificate of corporate resolutions and incumbency executed by the Secretary or an Assistant Secretary of the Borrower dated as of the date of hereof, authorizing (i) the Borrower’s entering into the transactions contemplated hereby and (ii) the delivery by the Borrower of the Preferred Securities.Loan Documents to be executed and delivered by the Borrower;
b(3) Winston & a certificate of corporate resolutions and incumbency executed by the Secretary or an Assistant Secretary of the Parent and each of the Guarantors dated as of the date hereof, authorizing the Parent and each of the Guarantors to (i) enter into the transactions contemplated hereby and (ii) deliver the Loan Documents to be executed and delivered by the Parent and each of the Guarantors;
(4) certified copies of the Organizational Documents of the Borrower, each of the Borrower’s Subsidiaries, and the Parent;
(5) certificates from the Secretary of State or other appropriate public official of the State of Delaware as to the continued existence and good standing of the Borrower in the State of Delaware;
(6) certificates from the Secretary of State or other appropriate public official as to the continued existence and good standing of the Parent and each of the Guarantors in its applicable State of formation;
(7) certificates from the appropriate public officials of the States of Texas, California, Colorado, Florida, Idaho, Iowa, Kansas, Nebraska, Oklahoma, Tennessee, Utah and Wisconsin for the Borrower as to the good standing and qualification as a foreign corporation, to the extent it is necessary to be qualified to do business as a foreign corporation in these jurisdictions;
(8) [intentionally omitted];
(9) copies of the following financial information: (i) audited consolidated financial statements of the Parent and its Subsidiaries for the two most recent fiscal years ended prior to the Closing Date as to which such financial statements are available, (ii) unaudited interim consolidated financial statements of the Parent and its Subsidiaries for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this paragraph and (iii) the most recent projected income statement, balance sheet and cash flows for each of the Parent’s fiscal years through June 30, 2015 (setting forth such projections on both an annual basis and on a monthly basis for the fiscal year ending June 30, 2011 and on an annual basis only for the 2012 fiscal year);
(10) the Intercreditor Agreement;
(11) a payoff letter from ▇▇▇▇▇ Fargo Bank, National Association, indicating the amount of the obligations of the Credit Parties to ▇▇▇▇▇ Fargo Bank, National Association and certain other lenders under the Term Loan Agreement dated as of August 10, 2007, as previously amended, and an acknowledgment by ▇▇▇▇▇ Fargo Bank, National Association (on behalf of itself and such lenders) that upon receipt of such funds neither ▇▇▇▇▇ Fargo Bank, National Association nor any such lender will have any rights or interests under the Security Documents or that certain Intercreditor and Collateral Agency Agreement, dated as of August 10, 2007, by and among the Credit Parties, the Revolving Credit Agent, the Collateral Agent and ▇▇▇▇▇ Fargo Bank, National Association , as previously amended;
(12) evidence that all legal (including tax implications) and regulatory matters in connection with the Term Loans are satisfactory to the Agent and the Lenders;
(13) a legal opinion from ▇▇▇▇▇▇▇ Procter LLP, the independent counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinionCredit Parties, dated as of the Closing Date, addressed to the Purchaser Agent and The Bank of New York Trust Company, National Association, acceptable in substantially all respects to the form set out in Annex A-I hereto Agent and the Company Lenders in their sole reasonable discretion;
(14) certificates of insurance satisfactory to the Collateral Agent in all respects evidencing the existence of all insurance required to be maintained by the Borrower and its Subsidiaries pursuant to the terms of this Agreement and the Security Documents;
(15) copies of all material employment agreements, management fee agreements and tax sharing agreements with respect to any of the Credit Parties which the Agent shall have furnished requested;
(h) payment by the Borrower to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinionLenders, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company Agent and the Trust and by government officials (provided, however, that copies Agent’s applicable Affiliates of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are all fees required to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating paid under the Loan Documents and all expenses required to legal opinions, including, without limitation, be paid under the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall Loan Documents for which invoices have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, presented; and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) receipt by the representations and warranties of the Guarantor, the Company Agent and the Trust in this Purchase Agreement are true Lenders of all other Loan Documents and correct in all material respects on and as of the Closing Date any other instruments or documents consistent with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either terms of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee this Agreement and delivered same relating to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case Agent may bereasonably request, and not executed by such trustee the Credit Parties or officer in any individual capacityother Person required by the Agent.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Animal Health International, Inc.)
Conditions. The obligations consummation of the parties under this Purchase Agreement are Merger is subject to satisfaction of the following conditionsconditions prior to the Effective Time:
a) a. The representations and warranties contained herein Merger shall be accurate as have received the required approval of the date CMA Board of delivery Overseers and the CSE Board of Stewards; and
b. The Merger shall have received the required approval of a majority the CSE Delegates entitled to vote on a plan of merger who are present and voting at a properly called Annual or Special Meeting of CSE, as required by the section 617.1103 of the Preferred SecuritiesFlorida Not-for-Profit Corporation Act.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), c. The Merger shall have delivered an opinionreceived the required approval of the CMA Delegates, dated which is the Closing Dateaffirmative vote of seventy-five (75) percent or more of the Delegates present and voting at a properly noticed and called Annual or Special Meeting of CMA; and
d. All approvals and consents necessary or desirable, addressed to the Purchaser and The Bank of New York Trust Company, National Associationif any, in substantially connection with the form set out in Annex A-I hereto and consummation of the Company Merger shall have furnished been obtained, including without limitation, approval of any governmental or regulatory authority or lender; and
e. No suit, action, proceeding or other litigation shall have been commenced or threatened to the Purchaser be commenced, nor facts nor circumstances existing which are likely to lead to such a certificate signed by the Company’s Chief Executive Officersuit, Presidentaction, a Senior Vice Presidentproceeding or other litigation, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaserwhich, in substantially the form set out in Annex A-II hereto. In rendering opinion of CSE or CMA would pose a material restriction on or impair consummation of the Merger, performance of this Merger Agreement or the conduct of the business of CMA at the Effective Time or create a risk of subjecting CMA or CSE or their opinionrespective Members, the Company Counsel may rely as officers or directors to factual matters upon certificates material damages, costs, liability or other documents furnished by officers, directors and trustees of relief in connection with the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates Merger or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinionsthis Merger Agreement, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991)in connection with any accepted assets or liabilities.
c) f. The Purchaser CSE Board of Stewards shall adopt a resolution affirming that CSE, its officers, directors, employees, agents and representatives have been furnished not and shall take any action between July 13, 2020 (the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated date CSE adopted the Closing Date, addressed to Board Resolution regarding the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the CompanyMerger), and the Trust shall have furnished to the Purchaser a certificate meetings of the Trust, signed by an Administrative Trustee members of CMA and CSE wherein the Trust, in each case dated the Closing Date, and, in the case of the Guarantor final votes on this Merger Agreement and the Company, as to Plan shall take place (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part scheduled to be performed held in August and September 2020) to cause any CSE indebtedness or satisfied pursuant liabilities to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring occur other than in the ordinary course of business business, or plans to adopted that cannot be fully implemented prior to the Effective Time without prior written agreement from CMA or written agreement between the parties. Further CSE such resolution shall affirm that there has been no significant change in the financial condition of CSE or in its exposure to risk of litigation of loss during such time period (a “Material Adverse Change”i.e., between July 13, 2020, and the Effective Time).
h) The Guarantor g. All unaccepted assets and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank liabilities of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not CSE have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice finally disposed of such cancellation shall be given without continuing liability to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityCMA.
Appears in 1 contract
Sources: Merger Agreement
Conditions. The This Amendment shall be effective once
(a) this Amendment has been executed and delivered by Borrower, Lenders and Agent,
(b) a replacement Note is executed by Borrower and delivered to Bank of America, N.A. in form and substance satisfactory to Bank of America, N.A.,
(c) a Deed of Trust, Mortgage, Security Agreement, Financing Statement and Assignment of Production (the “Deed of Trust”) for each Property has been executed, notarized, and delivered to Agent;
(d) a Security Agreement has been executed and delivered by Borrower,
(e) an Officer’s Certificate from Borrower certifying as to incumbency of officers, no changes to certificate of incorporation and bylaws since the date of the certificate delivered in connection with the Credit Agreement (or the most recent amendment), and resolutions adopted by the Board of Directors authorizing this Amendment,
(f) evidence satisfactory to Agent that (i) all conditions to the obligations of the parties buyers and sellers to close the acquisition under this that certain Purchase and Sale Agreement are subject dated November 28, 2007 (as amended by First Amendment to Purchase and Sale Agreement dated December 3, 2007, Second Amendment to Purchase and Sale Agreement dated December 18, 2007, and as further amended, restated, or supplemented, the following conditions:
a) The representations “Purchase Agreement”), by and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & between ▇▇▇▇▇▇▇ LLPEnergy I, counsel for Ltd., a Texas limited partnership, and certain other persons, as sellers, and Windsor Permian LLC, a Delaware limited liability company, and Borrower, as buyers, have been fully satisfied (other than the Guarantor, payment of the Company and the Trust (the “Company Counsel”purchase price), shall have delivered and (ii) Borrower has been granted an opinion, dated undivided 50% interest in and to all of the Closing Date, addressed assets and properties described more particularly in Exhibit A to the Purchaser and The Bank Deed of New York Trust CompanyTrust, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials and
(provided, however, that copies of any such certificates or documents are delivered to the Purchaserg) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel Agent may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. 4.1 The obligations agreements of the parties under Lender contained in Clause 3.1 of this Purchase First Supplemental Agreement are shall all be expressly subject to the following conditions:
a) The representations condition that the Lender shall have received in form and warranties contained herein shall be accurate as of substance satisfactory to the Lender and its legal advisers on or before the date of delivery this First Supplemental Agreement:
(a) evidence that the persons executing this First Supplemental Agreement on behalf of each Borrower are duly authorised to execute the same on behalf of such Borrower;
(b) a certificate from an officer of each Additional Owner confirming the names of all the directors and Shareholders of that Additional Owner and having attached thereto true and complete copies of its incorporation and constitutional documents;
(c) true and complete copies of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for resolutions passed at separate meetings of all the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees shareholders of each Borrower and each Additional Owner authorising and approving the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, andexecution of, in the case of each Borrower the Guarantor Mortgage Addendum and in the Company, as case of each Additional Owner the Additional Finance Documents to which it is a party and any other document or action to which it is or is to be a party and authorising its directors or other representatives to execute the same on its behalf;
(d) the original of any power of attorney issued by each Borrrower and each Additional Owner pursuant to such resolutions aforesaid;
(e) evidence that each Additional Ship is:
(i) registered in the ownership of the relevant Additional Owner under the laws and flag of the Malta; and
(ii) below insured in accordance with the relevant provisions of the Additional Deed of Covenant relative to that Additional Ship and all requirements thereof in respect of such insurance have been fulfilled; and
(f) the Additional Finance Documents and the Mortgage Addenda, duly executed by the Additional Owners or, in the case of the Trusteach Mortgage Addendum, as to (i) beloweach Borrower together with evidence that:
(i) each Additional Mortgage has been registered against the representations and warranties of the Guarantor, the Company and the Trust relevant Additional Ship with first priority in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date accordance with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either laws of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing DateMalta;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel each Mortgage Addendum in connection with the Operative Documents and relevant Original Ship has been duly registered in accordance with the transactions contemplated hereby and thereby shall be deemed laws of Malta;
(iii) all notices required to be given under each Additional Deed of Covenant, each Additional General Assignment and each Additional Charterparty Assignment have been given and acknowledged in the manner therein provided (other than in the case of a representation and warranty of Charterparty Assignment in which case the Trust and/or the Guarantor or the CompanyBorrower or, as the case may be, Additional Owner which is a party thereto shall procure that the Lender receives the relevant acknowledgement only if an Event of Default has occurred); and
(iv) save for the charges created by or pursuant to:
(A) any Finance Document (as defined in the Collateral Loan Agreement) which has been executed pursuant to the Collateral Loan Agreement; and
(B) the Additional Mortgages, the Additional Deeds of Covenant, the Additional General Assignments and the Additional Charterparty Assignments, there is no lien, charge or encumbrance of any kind whatsoever on either Additional Ship or her Earnings, Insurances or Requisition Compensation.
(g) a certified true copy of any Approved Charter entered into in respect of either Additional Ship;
(h) the original of any mandates or other documents required in connection with the opening or operation of the Additional Accounts;
(i) documents establishing that each Additional Ship is managed by the Approved Manager;
(j) a letter of undertaking executed by the Approved Manager in favour of the Lender in the terms required by the Lender agreeing certain matters in relation to the management of each Additional Ship and subordinating the rights of the Approved Manager against that Additional Ship and the Additional Owner owning that Additional Ship to the rights of the Lender under the Finance Documents;
(k) copies of ISM DOC and SMC and the International Ship Security Certificate under the ISPS Code in respect of each Additional Ship;
(l) each Additional Ship maintains the highest available class with such first-class classification society which is a member of the IACS as the Lender may approve free of all recommendations and conditions of such classification society;
(m) evidence that each Additional Owner is a direct or indirect subsidiary of the Corporate Guarantor;
(n) certified copies of all documents (with a certified translation if an original is not by in English) evidencing any other necessary action, approvals or consents with respect to this First Supplemental Agreement and the Additional Finance Documents (including without limitation) all necessary governmental and other official approvals and consents in such trustee or officer pertinent jurisdictions as the Lender deems appropriate;
(o) such legal opinions as the Lender may require in any individual capacityrespect of the matters contained in this First Supplemental Agreement and the Additional Finance Documents and the Mortgage Addenda; and
(p) evidence that the agent referred to in Clause 9.4 has accepted its appointment as agent for service of process under this First Supplemental Agreement and the Additional Finance Documents.
Appears in 1 contract
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment is subject to the following conditionsconditions precedent:
(a) The representations each Loan Party shall have executed and warranties contained herein delivered this Amendment;
(b) Borrower shall have delivered evidence satisfactory to Agent and each of the Buyers, in their sole discretion, that the Restructuring shall have been consummated;
(c) Gastar Exploration USA, Inc., as the successor-in-interest to FSW, as the successor-in-interest to FAD, shall have executed and delivered a Confirmatory Deed with regard to each of the Mortgages of record in the State of West Virginia made by FAD in favor of the Agent, for the benefit of the Buyers, giving effect to the merger of FAD with and into FSW, with FSW as the surviving corporation, and the change in the legal name of FSW to Gastar Exploration USA, Inc., in each case pursuant to the Restructuring, each of which Confirmatory Deeds shall be accurate as in form and substance satisfactory to Agent and each of the date of delivery Buyers;
(d) each Loan Party that has changed its legal name as a result of the Preferred Securities.Restructuring shall have delivered written notice of such name change to each depository bank that is a party to a Deposit Account Control Agreement of which such Loan Party is also a party in accordance with the terms of such Deposit Account Control Agreement, copies of which notices shall have been delivered to Agent and each of the Buyers;
b(e) Winston & ▇▇▇▇▇▇ LLP1212117 shall have executed and delivered a Joinder to Guaranty, counsel for in the Guarantorform of Exhibit E attached hereto, and a Joinder to Security Agreement, in the Company form of Exhibit F attached hereto;
(f) Borrower shall have caused each of its Subsidiaries (other than Gastar Exploration Texas LLC and Gastar Exploration Texas LP) to issue replacement stock certificates evidencing one hundred percent (100%) of the Trust (issued and outstanding capital stock of such Subsidiary after giving effect to the “Company Counsel”)consummation of the Restructuring, shall have delivered an opinionsuch stock certificates, dated along with assignments separate from certificate executed in blank and irrevocable proxies executed by the Closing Dateapplicable Loan Party, addressed to the Purchaser Agent in accordance with the Pledge Agreements, and The Bank shall have stamped each of New York Trust Companythe original stock certificates of which such replacement certificates are being issued “cancelled”;
(g) all proceedings taken in connection with the transactions contemplated by this Amendment and the Restructuring, National Associationand all documents, instruments and other legal matters incident thereto, shall be satisfactory to Agent, its legal counsel, and each of the Buyers;
(h) no Event of Default (as defined in the Initial Notes) shall have occurred and be continuing or would arise from the Loan Parties entering into this Amendment or any of the other agreements, documents and instruments to be executed by each such Person pursuant to this Amendment (collectively, the “Other Amendment Documents”) or, after giving effect to the consent set forth in Section 1 above, from the consummation of the Restructuring;
(i) all of the representations and warranties set forth in Section 6 below shall be true, complete and correct;
(j) Borrower shall have delivered such evidence of the authority of the Loan Parties to execute, deliver and perform its obligations under this Amendment and all of the Other Amendment Documents, and such evidence of the authority of the Borrower and its Subsidiaries to consummate the Restructuring, as the Agent and each of the Buyers may require, including but not limited to (i) a copy of resolutions duly adopted by the board of directors (or other governing authority) of each such Person, authorizing the execution by each such Person of this Amendment and the Other Amendment Documents, as well as all agreements, documents and instruments to be executed by each such Person in connection with the consummation of the Restructuring, in substantially each case certified as complete and correct by the form set out in Annex A-I hereto corporate secretary or similar officer of each such Person, (ii) such other approvals and/or consents as may be required from all other Persons whose approval or consent is necessary or required to enable the Loan Parties to enter into this Amendment and the Company Other Amendment Documents, to perform their respective obligations hereunder and thereunder and to consummate the Restructuring, (iii) certificates of merger or amalgamation or other evidence that the transactions contemplated by the Restructuring have been approved by applicable governmental authorities and (iv) a certificate of the secretary of each of the Loan Parties attaching and certifying as to each of the organizational documents of such Loan Party, as such organizational documents are in effect after giving effect to the consummation of the Restructuring, in each case certified by the Secretary of State (or similar, applicable governmental authority) of the state of incorporation or formation of each Loan Party, if and as applicable;
(k) Borrower shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors paid all fees and trustees expenses of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, Agent in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinionsconnection with this Amendment, including, without limitation, attorneys’ fees and expenses; and
(l) each Loan Party shall have delivered such other instruments, documents, certificates, consents, waivers and opinions as the Legal Opinion Accord Agent and any of the ABA Section of Business Law (1991).
c) Buyers may request. The Purchaser date on which the foregoing conditions shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed satisfied shall be referred to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents herein as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity“Omnibus Amendment Effective Date.”
Appears in 1 contract
Sources: Consent and Omnibus Amendment to Transaction Documents (Gastar Exploration LTD)
Conditions. The obligations obligation of the parties under this Purchase Agreement are Bank to make the Loan is ---------- subject to the satisfaction of the following conditions:
(a) The representations and warranties contained herein shall be accurate as receipt by the Bank from the Borrower of a duly executed counterpart of this Agreement signed by the Borrower;
(b) receipt by the Bank of the date duly executed Note;
(c) receipt by the Bank of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed satisfactory to the Purchaser and The Bank Bank, of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇Mu▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ Fa▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture TrusteeBorrower, dated the Closing Date, addressed substantially in the form of Exhibit D, and covering such additional matters relating to the Purchaser, in substantially transactions contemplated hereby as the form set out in Annex D hereto.Bank may reasonably request and as shall be reasonably agreed to by the Borrower;
f(d) The Purchaser shall have received receipt by the opinion Bank of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trusteea certificate, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, substantially in substantially the form set out in Annex E of Exhibit C hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer a principal officer of the CompanyBorrower, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated effect that (i) no Default has occurred and is continuing on the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust Borrower contained in this Purchase Agreement Article IV hereof are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(iie) since receipt by the date Bank of a properly executed Securities Pledge Agreement and any other documents reasonably required by the Interim Financial Statements (as defined below), there has been no material adverse change Bank or required by law to properly perfect the Bank's interest in the condition Collateral;
(financial or other), earnings, business or assets of f) the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior Collateral must be provided to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, Bank on the Closing Date and be properly pledged to the Bank to secure this Loan and must be accompanied by a separate stock power duly executed in blank;
(g) receipt by the Purchaser. Notice Bank of such cancellation shall be given all documents which the Bank may reasonably request relating to the Company existence of the Borrower, the corporate authority for and the Trust validity of this Agreement, the Note, any other matter relevant hereto, all in writing or by telephone or facsimile confirmed in writing. Each form and substance satisfactory to the Bank, including without limitation a certificate of incumbency of the Borrower, signed by any trustee the Secretary or an Assistant Secretary of the Trust or any officer Borrower, substantially in the form of Exhibit E hereto, certifying as to the names, true signatures and incumbency of the Guarantor officer or officers of the Company Borrower authorized to execute and delivered deliver the Loan Documents, and certified copies of the following items: (i) the Borrower's Certificate of Incorporation, (ii) the Borrower's Bylaws, (iii) a certificate of the Secretary of State of the State of Delaware as to the Purchaser or good standing of the Purchaser’s counsel in connection with Borrower as a Delaware corporation, and (iv) the Operative Documents action taken by the Board of Directors of the Borrower authorizing the Borrower's execution, delivery and performance of this Agreement, the Note and the transactions contemplated hereby and thereby shall be deemed other Loan Documents to be which the Borrower is a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityparty.
Appears in 1 contract
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are shall be subject to fulfillment of the following conditions:
(a) The Agent shall have received on the date hereof, in form and substance satisfactory to the Agent, the following:
(i) a fully-executed original of this Agreement;
(ii) a fully executed original of the LJH Intercreditor Agreement (as redefined herein);
(iii) the payment of a $40,000 amendment fee to the Agent;
(iv) evidence of the payment of all fees and amounts set forth in Exhibit G attached hereto;
(v) a copy of an amendment, waiver and consent executed by the required lenders under the Citicorp Loan Agreement (the "Citicorp Amendment"), in form and substance satisfactory to the Agent, and all documents required to be delivered prior to the effectiveness of the Citicorp Amendment; and
(vi) a fully executed copy of each of the LJH Note Documents;
(vii) a certificate of the Secretary or an Assistant Secretary of each of the Lessee and each Guarantor, in such form as is reasonably acceptable to the Agent attaching and certifying as to (A) the resolutions of the Board of Directors of Lessee or such Guarantor (as the case may be) duly authorizing the execution, delivery and performance by Lessee or such Guarantor (as the case may be) of this Amendment and each of the other Operative Agreements delivered in connection with this Amendment to which such Lessee or Guarantor is or will be a party, (B) the fact that neither its certificate of incorporation nor its bylaws have been changed from the versions that were certified and delivered to the Agent on the Initial Closing Date (or if the certificate of incorporation has been changed, such certificate of incorporation certified as of a recent date by the Secretary of State of the State of its incorporation or, if the by-laws have been changed, such by-laws certified by the secretary of the Lessee or the applicable Guarantor), and (C) the incumbency and signature of persons authorized to execute and deliver on its behalf this Amendment and each of the other Operative Agreements delivered in connection with this Amendment to which such Lessee or Guarantor is a party;
(viii) all agreements, documents and instruments delivered to the obligees under the BofA Note and the guaranties executed and delivered in connection therewith as a result of the LJH Note Documents or this Agreement, in form and substance satisfactory the Agent;
(ix) the annual report, financial statements, report of KPMG Peat Marwick LLP and other reports for Fiscal Year ended December 31, 2002 required to be delivered pursuant to Section 28.1.1 of the Lease Agreement (after giving effect to the waiver with respect thereto in Section 4(b) above);
(x) any additional agreements, instruments or documents which it may reasonably request in connection herewith;
(b) The correctness in all material respects of the representations and warranties of the Owner Trustee, the Construction Agent and the Lessee contained herein and in each of the Operative Agreements;
(c) No material adverse change shall have occurred in the business, assets, management, operations, financial condition or prospects of Aviation Sales or any Guarantor or any Subsidiary of Aviation Sales since December 31, 2002;
(d) Since December 31, 2002, no permit, agreement, lease, or license which, in the judgment of the Agent, is material to the business, operations or employee relations of Aviation Sales or any Guarantor or any Subsidiary of Aviation Sales, shall have been terminated, modified, revoked, breached, or declared to be accurate in default, or if breached or declared to be in default during such period, such breach or default shall have been cured or waived on terms satisfactory to the Agent and Lenders;
(e) None of the members of Aviation Sales' Board of Directors as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇December 31, 2000 (except ▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee ▇▇▇▇▇ and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP▇), special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, ceased acting as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice members of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee Board of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityDirectors.
Appears in 1 contract
Conditions. The obligations of the parties under this Purchase Agreement are subject to the following conditions:
a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form agreement set out in Annex A-I hereto and the Company Clause 1 of this Second Supplemental Letter, shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made become effective on the Closing Date, and the Company and the Trust have complied in all material respects with date all the agreements and following conditions are either satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Companyor, as the case may be in respect of certain conditions, waived (such date being the “Second Effective Date”):
3.1 the Borrower, the Existing Owners, the New Ship Owners and the Approved Manager hereby declare and acknowledge that as at the date hereof the outstanding principal amount of the Facility is Thirty Six Million Three Hundred and Seventy Five Thousand Dollars ($36,375,000) and further confirm their obligations under the Finance Documents to which they are a party and their agreement to the arrangements of this Second Supplemental Letter by accepting and counter-signing this Second Supplemental Letter by a duly authorised signatory or (as the case may be) by a director acceptable to us in all respects;
3.2 on or before the date of signing of this Second Supplemental Letter the Borrower deliver to us in form and substance as may be approved or required by us:
(a) a recent certificate of good standing in relation to each of the Borrower, each Existing Owner, each New Ship Owner and not the Approved Manager issued by such trustee the relevant authorities of the country of its incorporation and a recent certificate of the Ministry of Shipping and Insular’s Policy, certifying the due establishment of an office in Greece of the Approved Manager and its good standing;
(b) an original certificate of a duly authorised officer of the Borrower, each Existing Owner, each New Ship Owner and the Approved Manager, certifying that none of the documents delivered to us pursuant to the Principal Agreement has been amended or officer modified in any individual capacity.way since the date of their delivery and remains correct, complete and in full force and effect, or copies, certified by a duly authorized officer of each of the above parties as true, complete, accurate and neither amended nor revoked, of any which have been amended or modified;
(c) originals of duly legalised resolutions of the directors of the Borrower evidencing approval to the variation of the Principal Agreement pursuant to this Second Supplemental Letter and the execution of same and all documents contemplated hereby to which it is a party and authorising appropriate officers or attorneys to execute the same and to sign any other documents, notices, letters or other communications required to be given by it pursuant hereto and thereto or other evidence of such approvals and authorisations
(d) original of any power of attorney under which any of the documents referred to at (c) above is executed on behalf of the Borrower;
(e) a first priority deed of pledge over the Reserve Account;
(f) copies of all governmental and other consents, licences, approvals and authorisations as may be necessary to authorise the performance by the Borrower and the other Obligors of their obligations under this Second Supplemental Letter and all documents contemplated hereby to which each of them is a party and the execution, validity and enforceability of this Second Supplemental Letter and all documents contemplated hereby;
(g) evidence that each Mortgaged Ship is definitively and permanently registered in the absolute and unencumbered ownership of the relevant Owner under the Approved Flag save for the relevant Mortgage in our favour, remains insured in accordance with the respective terms of the Finance Documents and that such insurances have been assigned to us and continues to trade in full compliance with all applicable laws and managed by the Approved Manager pursuant to the terms of the relevant management agreement;
(h) evidence that each Owner and the Approved Manager are in current compliance with the requirements of the International Management Code for the Safe Operation of Ships and for Pollution Prevention (as adopted by the International Maritime Organisation as Resolution A.741 (18) (the “ISM Code”);
(i) evidence that each Owner and the Approved Manager are in current compliance with the provisions of the International Ship and Port Facilities Security (ISPS) Code and the other respective amendments of SOLAS and will maintain at all times throughout the Facility Period a valid International Ship Security Certificate (ISSC) in respect of each Ship and all other valid certificates evidencing compliance with this sub-clause;
(j) updated class maintenance certificate or survey status issued by the classification society of each Ship which will be at all terms satisfactory to us; and
(k) favourable legal opinion in connection with the due execution an enforceability of the Account Pledge on the Reserve Account;
Appears in 1 contract
Sources: Facility Agreement (Euroseas Ltd.)
Conditions. The obligations consummation of the parties under transactions set forth in Sections 3 and 4 of this Purchase Agreement are shall be subject to the satisfaction of the following conditionsconditions precedent:
(a) The representations and warranties contained herein Administrative Agent (or its counsel) shall be accurate as have received from each of the date Borrower, the Subsidiary Loan Parties and the Restatement Lenders either (i) a counterpart of delivery this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Revolving Agent (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement, in each case evidencing the consent of the Preferred SecuritiesRestatement Lenders to the amendments reflected in the Restated Credit Agreement (without respect to the amendments reflected in the Restated Credit Agreement that relate to the extension of the maturity of the Revolving Commitments).
(b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust The Administrative Agent (the “Company Counsel”), or its counsel) shall have delivered an opinionreceived from Revolving Lenders having Revolving Exposures (as defined in the Existing Credit Agreement) and unused Revolving Commitments (as defined in the Existing Credit Agreement) representing, dated in the Closing aggregate, not less than $20.0 million of the total Revolving Exposures (as defined in the Existing Credit Agreement) and unused Revolving Commitments (as defined in the Existing Credit Agreement) on the Restatement Effective Date, either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement, in each case evidencing the consent of such Revolving Lenders to the amendments reflected in the Restated Credit Agreement that relate to the extension of the maturity of the Revolving Commitments.
(c) The Administrative Agent (or its counsel) shall have received from the Swingline Lender, either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement, in each case evidencing the consent of the Swingline Lender to the amendments reflected in the Restated Credit Agreement that relate to the extension of the maturity of the Swingline Loans.
(d) The Administrative Agent shall have received a favorable written opinion (addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto Administrative Agent and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, Lenders and dated the Closing Restatement Effective Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees ) of the Guarantor, the Company and the Trust and by government officials each of (provided, however, that copies of any such certificates or documents are delivered to the Purchaseri) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the PurchaserBorrower, in substantially the form set out forth in Annex D Exhibit B hereto, and (ii) Colorado, Louisiana, Nevada, Ohio and Virginia counsel, in each case in form and substance reasonably satisfactory to the Administrative Agent and its counsel and in each case covering such other matters relating to the Loan Parties, the Loan Documents or the Restatement Transactions as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsel to deliver such opinions.
f(e) The Purchaser Administrative Agent shall have received such documents and certificates as the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware Administrative Agent or its counsel for the Delaware Trustee, dated the Closing Date, addressed may reasonably request relating to the Purchaser organization, existence and The Bank good standing of New York Trust Companyeach Loan Party, National Associationthe authorization of the Restatement Transactions and any other customary legal matters relating to the Loan Parties, the Loan Documents or the Restatement Transactions, all in substantially form and substance reasonably satisfactory to the form set out in Annex E heretoAdministrative Agent and its counsel.
g(f) Each of the Guarantor conditions set forth in clauses (a)-(d) of Section 4.02 of the Restated Credit Agreement shall be satisfied as of the Restatement Effective Date (as though (i) a Borrowing were being made on the Restatement Effective Date, (ii) in Article III of the Restated Credit Agreement, the term “Closing Date” refers to the “Restatement Effective Date” and (iii) in Section 3.04 of the Restated Credit Agreement, “fiscal years ended December 31, 2005, 2004 and 2003” refers to “fiscal years ended December 31, 2009, 2008 and 2007”) and the Company Administrative Agent shall have furnished to received a certificate, dated the Purchaser a certificate of the Guarantor Restatement Effective Date and the Company, as applicable, signed by the Chief Executive OfficerPresident, a Vice President or an Executive Vice President, and Chief a Financial Officer, Treasurer or Assistant Treasurer Officer of the CompanyBorrower, and confirming satisfaction of the Trust condition in this paragraph.
(g) The Administrative Agent shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to received (i) all fees and other amounts due and payable in connection with this Agreement and the Existing Credit Agreement on or prior to the Restatement Effective Date, including, to the extent invoiced in writing at least one Business Day prior to the Restatement Effective Date, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document, (ii) below and, all accrued and unpaid interest under the Existing Credit Agreement in the case respect of the Trust, as to Loans and all accrued and unpaid fees under paragraph (a) and clause (i) below:of paragraph (c) of Section 2.15 of the Existing Credit Agreement and (iii) any prepayment required by Section 4(e) hereof. If any LC Disbursements are outstanding as of the Restatement Effective Date, such LC Disbursements shall be repaid, together with any interest accrued thereon.
(ih) After giving effect to the representations and warranties of the GuarantorRestatement Transactions, the Company and the Trust Guarantors shall be in this Purchase Agreement are true compliance with the requirements of Sections 5.11, 5.12 and correct in all material respects on and as 5.13 of the Closing Date with Restated Credit Agreement, and in connection therewith, the same effect as if made on Administrative Agent shall have received any related documentation that the Closing Administrative Agent or its counsel reasonably requests in form and substance reasonably satisfactory to the Administrative Agent and its counsel. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the Company foregoing, the consummation of the amendment and restatement of the Trust have complied in all material respects with all Existing Credit Agreement shall not become effective unless each of the agreements and foregoing conditions is satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents waived at or prior to the Closing Date;
5:00 p.m., New York City time, on March 31, 2010 (ii) since the date of the Interim Financial Statements (as defined below)and, there has been no material adverse change in the condition (financial event such conditions are not so satisfied or other), earnings, business or assets of the Guarantorwaived, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring Existing Credit Agreement shall remain in the ordinary course effect without giving effect to any provisions of business (a “Material Adverse Change”this Agreement).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Jacobs Entertainment Inc)
Conditions. The obligations funding of the parties under this Purchase Agreement are incremental term loan contemplated by the Debt Commitment Letter is subject to certain closing conditions, including, without limitation: • the following conditions:
a) The Merger shall have been consummated prior to or substantially simultaneously with the initial borrowing of the incremental term loan in accordance with the terms of the Merger Agreement, which shall not have been amended, waived or otherwise modified in any material respect in a manner materially adverse to the lenders under the incremental term loan without the consent of the Commitment Parties (such consent not to be unreasonably withheld, conditioned or delayed); • since the date of the Merger Agreement, there shall not have occurred a Company Material Adverse Effect; • the Commitment Parties will have received reasonably satisfactory evidence that all amounts outstanding under Boulder’s and its subsidiaries’ existing credit facilities and, subject to certain exceptions, other third party debt for borrowed money of Boulder and its subsidiaries has been repaid in full or will be repaid in full substantially concurrently with the borrowing of the incremental term loan, and all commitments, guarantees and security interests in respect of such existing credit facilities and other debt shall have been terminated or will be terminated upon such concurrent repayment; • the execution and delivery of definitive documentation by PFF with respect to the incremental term loan consistent with the Debt Commitment Letter; • the accuracy of certain representations and warranties contained herein shall be accurate as in the Merger Agreement and the representations and warranties in the Credit Agreement; • the delivery of a solvency certificate from the chief financial officer of PFF and certain other customary closing documents and documentation required under applicable “know your customer” and anti-money laundering laws; • there having occurred at least 10 business days from the date of delivery of certain materials referred to in the Preferred Securities.
Debt Commitment Letter; and • the payment of fees and the reimbursement of expenses required to be paid or reimbursed pursuant to the Debt Commitment Letter. The Debt Commitment Letter will terminate if the initial borrowing under the incremental term loan does not occur on or before March 23, 2016 (or, if earlier, the date of termination of the Merger Agreement). Subject to the terms and conditions of the Merger Agreement, Pinnacle will use its reasonable best efforts to obtain the Financing (as defined in the Merger Agreement) on the terms and conditions described in the Debt Commitment Letter and will not, subject to certain exceptions, permit any amendment or modification to be made to, or any waiver of any provision or rights under, the Debt Commitment Letter if such amendment, modification or waiver would (a) reduce the aggregate amount of the Financing below the amount that would be required to consummate the Transactions (as defined in the Merger Agreement), (b) Winston & ▇▇▇▇▇▇ LLPimpose new or additional conditions or otherwise expand, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed amend or modify any conditions to the Purchaser and The Bank Financing in a manner that would be more onerous than those conditions to funding contained in the Debt Commitment Letter on the date of New York Trust Companythe Merger Agreement, National Association(c) adversely impact the ability of Pinnacle, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer PFF or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by to enforce its rights against the Chief Executive Officerother parties to the Debt Commitment Letter or the definitive agreements with respect to the Financing or (d) prevent, President impede or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer delay the consummation of the Company, and Financing or the Trust shall have furnished to the Purchaser a certificate consummation of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse ChangeTransactions. See Section 12—“The Transaction Agreement—The Merger Agreement—Financing.”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations of Purchasers’ obligation to purchase and pay for the parties under this Purchase Agreement are Notes issued on the Issue Date is subject to the satisfaction, prior to or on the Issue Date, of the following conditions:
(a) The representations Company shall deliver to the Purchaser Advisor copies of the following documents, executed by each party thereto:
(i) this Note Purchase Agreement;
(ii) the Notes;
(iii) the Intercreditor Agreements;
(iv) the Security Agreement, together with (A) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Purchaser Advisor may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described therein, and warranties contained herein shall (B) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Purchaser Advisor may deem necessary or desirable in order to perfect the Liens created thereby;
(v) intellectual property security agreements with respect to all Collateral consisting of registered or applied for patents, copyrights, trademarks or, in each case, exclusive licenses therefor, together with evidence of the completion of all other actions (other than any recordings or filings of such intellectual property security agreements with the United States Patent and Trademark Office and United States Copyright Office that will be accurate filed promptly after the issuance of the Notes) with respect to such intellectual property security agreements that the Purchaser Advisor may deem necessary or desirable in order to perfect the Liens created thereby;
(vi) a customary perfection certificate, in form and substance reasonably satisfactory to the Purchaser Advisor, setting forth all information with respect to the Collateral requested therein (the “Perfection Certificate”);
(vii) customary secretary’s certificates attaching, with respect to the Company and each Guarantor, (A) authorizing resolutions, (B) charter and governing documents (if applicable, certified by the secretary of state or other applicable governmental authority of the state of the Company’s or such Guarantor’s formation), (C) incumbency information relating to the Company and each Guarantor and (D) evidence that each of the Company and each Guarantor is in good standing as of the date Issue Date in the state of delivery its formation, in each case, in form and substance reasonably satisfactory to the Purchaser Advisor;
(viii) a customary certificate of the Preferred Securities.
bchief financial officer of the Company, certifying that (i) Winston & ▇▇▇▇▇▇ LLPimmediately after the Issue Date, counsel for the GuarantorParent Company, the Company and the Trust Guarantors, on a consolidated basis, will be Solvent and (ii) on the “Company Counsel”Issue Date, the conditions set forth in clauses (b), shall have delivered an opinion(e), dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaserf) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law (h) of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA this Section of Business Law (1991).
c) The Purchaser 1.3 shall have been furnished the satisfied;
(ix) a customary favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, New York counsel for the Company and the Guarantors, dated the Closing as of such Issue Date, addressed in form and substance reasonably satisfactory to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.Advisor; and
d(x) The Purchaser shall have received the a customary favorable opinion of ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & FingerEsq., P.A.Senior Vice President, special Delaware counsel for the Delaware TrusteeLegal Affairs of Parent Company, dated the Closing as of such Issue Date, addressed in form and substance reasonably satisfactory to the PurchaserPurchaser Advisor.
(b) All necessary governmental and third party approvals and/or consents required with respect to the Company and the Guarantors in connection with the transactions contemplated herein and in the other Note Purchase Documents shall have been obtained and remain in effect.
(c) Delivery of certified copies of UCC, The Bank United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches and bankruptcy searches or equivalent reports or searches, each as of New York Trust Companya recent date listing all effective financing statements, National Associationlien notices or comparable documents that name the Company or any Guarantor as debtor and that are filed in those state or, to the extent applicable, county jurisdictions in which any Loan Party is organized or maintains its principal place of business, in each case, to the extent requested at least 10 (ten) days prior to the Issue Date.
(d) Delivery of customary insurance certificates and endorsements naming the Collateral Agent (on behalf of the Noteholders) as an additional insured or loss payee, as the case may be, under all insurance policies to the extent insurance certificates and endorsements in respect of such insurance policies have been delivered to the ABL Agent, the Delaware Trustee and Senior Priority Agent or the CompanyJunior Priority Agent, in substantially form and substance reasonably satisfactory to the form set out in Annex C heretoPurchaser Advisor.
(e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust Guarantors set forth herein and in this the other Note Purchase Agreement are Documents shall be true and correct in all material respects on and as of the Closing Issue Date with the same effect as if made on the Closing Date(or, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at extent qualified by “materiality” or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”, in all respects).
(f) No Default or Event of Default shall exist, or would result from the issuance of the Notes on the Issue Date, or from the application of proceeds thereof.
(g) At least two (2) days prior to the Issue Date, delivery of all documentation and other information requested by the Purchasers at least seven (7) days prior to the Issue Date that is required by applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations.
(h) The Guarantor conditions for the consummation of the 11.5% Notes Exchange and the conditions for the effectiveness of the ABL Amendment (other than conditions relating to the transactions under this Note Purchase Agreement) shall have been satisfied or waived such that concurrently with the Issue Date, (i) the 11.5% Notes Exchange will concurrently be consummated and (ii) the ABL Amendment will concurrently become effective.
(i) The Company shall have executed reimbursed all expenses of the Parent Guarantee Agreement and delivered same Purchaser Advisor required to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior be reimbursed on the Issue Date pursuant to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Support Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Indenture and Note Purchase Agreement (Cenveo, Inc)
Conditions. The obligations registration rights of the parties Holders under this Purchase Agreement Section 1.4 and the ability to offer and sell Registrable Securities pursuant to a Shelf Registration are subject to the following conditions:
a) The representations conditions and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) belowlimitations:
(i) the representations and warranties of Company shall not be obligated to effect any such Shelf Registration if the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part Holders propose to be performed or satisfied pursuant sell Registrable Securities at an aggregate price to the Operative Documents at or prior to the Closing Date;public of less than $500,000; and
(ii) since the date each of the Interim Financial Statements (as defined below), there has been no material adverse change in Holders agrees with the condition (financial or other), earnings, business or assets Company that if the board of directors of the GuarantorCompany determines in its good faith judgment, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior toto or during the effectiveness of the filing of a Shelf Registration pursuant to this Section 1.4, that the Closing Date Company possesses material non-public information relating to a pending or imminent event or announcement or is engaged in confidential negotiations or other confidential business activities that are material to its business and that would be interfered with in any material respect by such Shelf Registration (including, without limitation, information related to any pending or proposed consolidation, merger, reorganization, recapitalization or other similar transaction and any pending discussions related thereto), upon written notice of such determination by the Purchaser. Notice board of such cancellation shall be given to directors of the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser Holders (evidenced by its resolution to such effect), the rights of each of the Holders to publicly offer, publicly sell or publicly distribute any Registrable Securities pursuant to such Shelf Registration or to require the Purchaser’s counsel Company to take action with respect to the registration or sale of any Registrable Securities pursuant to such Shelf Registration (including any action contemplated by Section 1.6 hereof) will be suspended until the Company notifies the Holders in connection with writing that suspension of such rights for the Operative Documents and grounds set forth in this Section 1.4 is no longer necessary; provided, however, that the transactions contemplated hereby and thereby Company shall not be permitted to suspend the rights of the Holders pursuant to this Section 1.4 for more than ninety (90) days after receipt of the request by the Holders under this Section 1.4; provided, further, that such right to delay a request shall be deemed to be a representation and warranty of exercised by the Trust and/or the Guarantor or the Company, as the case may be, and Company not by such trustee or officer more than once in any individual capacitytwelve (12) month period.
Appears in 1 contract
Sources: Registration Rights Agreement (Prometheus Laboratories Inc)
Conditions. The obligations of the parties under this Purchase Agreement are subject In addition to any other conditions to the following conditions:
a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form Loan set out in Annex A-I hereto and this Agreement, PFG will not make the Company Loan until PFG shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaserreceived, in substantially form and substance satisfactory to PFG, such documents, and completion of such other matters, as PFG may reasonably deem necessary or appropriate, including that there shall be no discovery of any facts or circumstances which would, as determined by PFG in its sole discretion, negatively affect or be reasonably expected to negatively affect the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees collectability of the GuarantorObligations, PFG’s security interest in Borrower’s Collateral or the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinionsvalue thereof, including, without limitation, :
(a) duly executed original signatures of Borrower to the Legal Opinion Accord Loan Documents to which Borrower is a party;
(b) Borrower’s respective constitutional documents and a good standing certificate of each Borrower certified by the Secretary of State of the ABA Section State of Business Law Colorado as of a date no earlier than thirty (1991).
c30) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed days prior to the Purchaser and The Bank date hereof, together with a foreign qualification certificate from the State of New York Trust CompanyCalifornia with respect to Borrower, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇.▇▇▇▇▇▇ & Finger, P.A.Inc.;
(c) duly executed original signatures to borrowing resolutions for each Borrower;
(d) account control agreements as required by Section 8(b) of this Schedule, special Delaware counsel for the Delaware Trusteeduly executed by Borrower and each depositary institution of Borrower in favor of PFG;
(e) certified copies, dated as of a recent date, of financing statement searches, as PFG shall request, accompanied by written evidence (including any UCC termination statements) that the Closing Date, addressed Liens indicated in any such financing statements either Partners for Growth Schedule to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee Loan and the CompanySecurity Agreement ____________________________________________________________________________________________________________________ constitute Permitted Liens or have been or, in substantially connection with the form set out in Annex C hereto.Loan, will be terminated or released;
e(f) The Purchaser Senior Lender and PFG shall have received entered into a subordination the opinion Representations, duly executed by Borrower;
(g) a landlord consent executed in favor of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for PFG by the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of Borrower ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.’s principal office lessor in respect of Borrower’s premises in California;
(h) a pledge agreement pursuant to which Borrower pledges the equity interests in its Subsidiaries and 65% of the equity interests in Foreign Subsidiaries, together with an assignment or irrevocable stock power and such other documentation as PFG may reasonably require to effect a legally-binding pledge of such Collateral and, subject to the rights of the Senior Lender, certificates for shares representing such equity interests;
(i) a duly executed warrant purchase agreement and warrant in favor of PFG to purchase 105,000 shares of Borrower’s common stock at a price equal to the lower of $1.45 of the 5- day trading average closing price in agreed form (the “PFG Warrant”);
(j) the insurance policies and/or endorsements required pursuant to Section 4.3;
(k) payment of the Fee specified in Section 3 of this Schedule and PFG’s expenses incurred in connection with the Loan;
(l) [INTENTIONALLY LEFT BLANK];
(m) such subordination agreements as PFG may require in its discretion by which secured creditors, other than the Senior Lender, subordinate their liens and repayment to the lien and prior repayment of PFG;
(n) a cross-corporate continuing guaranty from Global Med Technologies, Inc. and ▇▇▇▇▇▇ & Finger▇▇▇▇.▇▇▇, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:Inc.;
(io) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as copies of the Closing Date with Senior Loan Documents, as amended through the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Datedate hereof;
(iip) since the date Senior Lender and PFG shall have entered into a subordination agreement in respect of the Interim Financial Statements (as defined below)relative priorities of their liens and repayment. Partners for Growth Schedule to Loan and Security Agreement ____________________________________________________________________________________________________________________ GLOBAL MED TECHNOLOGIES, there has been no material adverse change in the condition (financial or other)INC. PARTNERS FOR GROWTH II, earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.L.P.
Appears in 1 contract
Sources: Loan and Security Agreement (Global Med Technologies Inc)
Conditions. The obligations This Amendment shall become effective on the date (the "AMENDMENT EFFECTIVE DATE") as of which each of the parties under following conditions precedent shall have been satisfied in a manner satisfactory to the Bank:
(a) The Bank shall have received the following documents, each in form and substance satisfactory to the Bank:
(i) this Purchase Agreement Amendment, duly executed by the Borrowers;
(ii) the Fourth Amended and Restated Revolving A Note, dated the Amendment Effective Date, in substantially the form attached hereto as ANNEX B, made by the Borrowers to the order of the Bank and in the original principal amount of $65,000,000 (the "NEW NOTE"); and
(iii) Federal Reserve Form U-1 provided for in Regulation U issued by the Board of Governors of the Federal Reserve System, the statements made in which shall be such, in the opinion of the Bank, as to permit the transactions contemplated hereby in accordance with such Regulation;
(iv) UCC Financing Statement Amendment, amending Schedule A to UCC-1 Financing Statement to reflect the pledge by the Pledgor of the Additional Collateral;
(v) certified copies of requests for copies or information on Form UCC-11 or other recent UCC search results, listing all effective financing statements which name a Borrower as debtor, together with search results with respect to judgment and tax liens searches and copies of such financing statements and any other lien, none of which, except as otherwise agreed to in writing by the Bank, shall cover any of the Collateral;
(vi) the original stock certificates representing 100% of the Pledged Shares that are not subject to the following conditions:BA Control Agreement and 15 undated stock powers executed in blank and other proper instruments of transfer for the stock certificates pledged by the Pledgor to the Bank;
a(vii) The representations and warranties contained herein shall be accurate as an issuer's letter from Triarc with respect to the pledge of the date Pledged Shares by the Pledgor;
(viii) an irrevocable letter, duly executed by the Pledgor, authorizing the payment of delivery all dividends payable on the Pledged Shares directly to the Bank without further consent from the Pledgor;
(ix) a certified copy of each Registration Rights Agreement, if any, together with any consent from Triarc that the Bank may reasonably require in order to enjoy the benefits of any Registration Rights Agreement in respect of the Preferred Securities.Pledged Shares;
b(x) Winston a restricted securities statement, duly executed by the Pledgor;
(xi) an opinion, dated the Amendment Effective Date, of the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel to the Borrowers, ▇▇ form and substanc▇ ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇nab▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed factory to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser Bank and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Dateits counsel;
(iixii) since the date of BA Control Agreement, duly executed by the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the GuarantorSecurities Intermediary, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor Bank and the Company shall have executed the Parent Guarantee Agreement Pledgor; and
(xiii) such other agreements, instruments, opinions and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and other documents as the Purchaser or its counsel Bank may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Pledge and Security Agreement (Triarc Companies Inc)
Conditions. The obligations Any payments or benefits upon termination of the parties Employee's employment under this Purchase Agreement Section V of the Employment Contract (including but not limited to the Accrued Amounts, the Severance Amount and any equity awards the Employee has received pursuant to the 2012 LTIP), are subject to the following conditions:
a) The representations and warranties contained herein shall be accurate as a unilateral right of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, set-off by the Company and Parent, during and following the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank period of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed any breach or violation by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees Employee of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties protective covenants under Sections
6.1 to 6.5 of the Guarantor, the Company Employment Contract during and the Trust in this Purchase Agreement are true and correct in all material respects on and as after expiration of the Closing Date with Employment Contract (i.e. covenants regarding non-competition, including but not limited to the same effect as if made on terms of the Closing DateNon-Competition Agreement, no solicitation or interference, confidential information, inventions, return of documents and property), (ii) Section 9 of the Change in Control and Severance Agreement, and (iii) the Company and Employee's fiduciary obligations to members of the Trust have complied in all material respects with all Orthofix Group under applicable law, including but not limited to the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied Employee's fiduciary duties under Delaware law pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since Employee's status as an executive officer of Parent through the date of the Interim Financial Statements Employee's resignation from such office. In particular, the Employee further understands and agrees that payment to him of the Accrued Amounts and Severance Amount (each, as defined in Section 3 of the Change in Control and Severance Agreement, and in the amounts described in Exhibit A hereto) is conditioned upon and subject to, among other things, (i) the Employee's effective delivery and non-revocation of the Release (as defined below)in Section 5 of the Change in Control and Severance Agreement, there has been no material adverse change and in the condition (financial or other), earnings, business or assets form of Exhibit B hereto) following the Termination Effective Date in accordance with the terms of the GuarantorChange in Control and Severance Agreement, (ii) the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in Employee's full compliance with all the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any terms of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Non-Competition Agreement and all terms of Section 9 of the Purchaser’s obligations hereunder may be canceled atChange in Control and Severance Agreement, or at any time prior to, and (iii) the Closing Date by the Purchaser. Notice of such cancellation shall be given Employee's continued compliance with all fiduciary duties (including but not limited to the Company and duty of loyalty) applicable to the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee Employee under the laws of the Trust or any officer State of the Guarantor or the Company and delivered Delaware pursuant to the Purchaser Employee's status as an executive officer (or, following the Employee's resignation or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be removal as an officer, a representation and warranty former executive officer) of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityParent.
Appears in 1 contract
Conditions. The obligations of the parties under this Purchase Agreement are subject to the following conditions:
a) The representations and warranties contained herein This Amendment shall be accurate become effective as of the first date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company CounselSixth Amendment Date”), ) when each of the following conditions shall have delivered an opinionbeen satisfied:
(a) the Administrative Agent (or its counsel) shall have received from each party hereto (including the Required Lenders and each Revolving Lender continuing as such after the Sixth Amendment Date) either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy, portable document format (.pdf) or email transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(b) no Default or Event of Default shall have occurred and be continuing or shall result from any extension of credit requested to be made on the Sixth Amendment Date;
(c) the Administrative Agent shall have received a certificate, dated the Closing Date, addressed to the Purchaser Sixth Amendment Date and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees Responsible Officer of the GuarantorParent Borrower, confirming compliance with the Company and the Trust and by government officials conditions set forth in clause (provided, however, that copies b) of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice this Section 5.1 and that they are not admitted to practice in any other jurisdiction and are not experts in the law each of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust made by any Loan Party contained in this Purchase Agreement are Section 4.1 above shall be true and correct in all material respects on and as of the Closing Sixth Amendment Date after giving effect to the Amendment and to any extension of credit requested to be made on the Sixth Amendment Date with the same effect as if though such representations and warranties had been made on and as of such date;
(d) the Closing Administrative Agent shall have received, for the benefit of each Revolving Lender that is a party hereto on the Sixth Amendment Date, the fees separately agreed in writing between the Parent Borrower and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant Administrative Agent;
(e) to the Operative Documents extent invoiced at least one (1) Business Day prior to the Sixth Amendment Date, the Administrative Agent shall have received all fees and other amounts due and payable to it or its Affiliates on or prior to the Closing Sixth Amendment Date, including, to the extent invoiced, reimbursement or payment of all of such Persons’ reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iif) since the date Administrative Agent shall have received a written opinion or opinions (addressed to the Administrative Agent and the Lenders and dated the Sixth Amendment Date) of counsel for the Loan Parties or the Administrative Agent, as applicable, covering such matters relating to the Loan Parties and the Loan Documents as of the Interim Financial Statements Sixth Amendment Date as are customary for financings of this type. The Parent Borrower hereby requests such counsel to deliver such opinions;
(as defined below), there has been no material adverse change in g) the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company Administrative Agent shall have executed the Parent Guarantee Agreement received such documents and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser Administrative Agent or its counsel may reasonably request. If any request relating to the organization, existence and good standing of each Loan Party, the authorization of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may Transactions to be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel consummated in connection with the Operative execution and delivery hereof and any other legal matters relating to the Loan Parties, the Loan Documents or such Transactions as are customary for financings of this type, all in form and substance reasonably satisfactory to the transactions contemplated hereby Administrative Agent and thereby its counsel;
(i) the Administrative Agent shall have received, at least 3 days prior to the Sixth Amendment Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, with respect to the Loan Parties as of the Sixth Amendment Date that has been reasonably requested by the Administrative Agent at least 10 days prior to the Sixth Amendment Date and (ii) to the extent the Parent Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least 3 days prior to the Sixth Amendment Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Sixth Amendment Date, a Beneficial Ownership Certification in relation to the Parent Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Amendment, the condition set forth in this clause (ii) shall be deemed to be satisfied);
(k) all actions necessary to establish that the Administrative Agent will have a representation and warranty perfected first priority security interest in the Collateral (subject to Liens permitted under the Credit Agreement as amended hereby); provided that the items on Annex VII hereto may instead be provided after the Sixth Amendment Date pursuant to the timing set forth on such Annex (or such later date as the Administrative Agent shall reasonably agree); and
(l) the Administrative Agent shall have received, for the account of the Trust and/or Revolving Lenders, immediately prior to the Guarantor or Amendment, all accrued interest and fees on the Company, Revolving Commitments and Revolving Loans outstanding as of the case may beSixth Amendment date, and not by such trustee or officer in if applicable, the Revolving Lenders shall have received any individual capacitypayments of principal on the Revolving Loans from the other applicable Revolving Lenders to affect the provisions of Section 2(b) hereto.
Appears in 1 contract
Conditions. The obligations This Amendment shall become effective as of the parties under this Purchase Agreement are subject to first date (the “First Incremental Facility Closing Date”) when each of the following conditionsconditions shall have been satisfied:
a(i) The Administrative Agent shall have received from each Loan Party and each Lender party hereto an executed counterpart hereof.
(ii) The representations and warranties contained herein shall be accurate of each Loan Party set forth in Article 5 of the Credit Agreement and in each other Loan Document are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” are true and correct in all respects as so qualified) on and as of the date First Incremental Facility Closing Date with the same effect as though made on and as of delivery such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they are true and correct in all material respects as of such earlier date.
(iii) As of the Preferred Securitiesdate hereof and immediately after giving effect to the First Incremental Facility Closing Date, No Default or Event of Default has occurred and is, or shall be, continuing.
b(iv) Winston & The Administrative Agent shall have received documents and certificates relating to (A) the good standing of Holdings and the Borrower and organization and existence of the each of the Loan Parties, (B) the corporate or other authority to execute this Amendment and (C) the incumbency of the Responsible Officers of each of the Loan Parties executing this Amendment, and other matters relevant hereto, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received for the benefit of each Lender party hereto a fee equal to 2.00% of such ▇▇▇▇▇▇ LLP, counsel for ▇’s Increased Commitment Amount (as defined in the Guarantor, recitals to this Amendment) and all reasonable and documented out-of-pocket costs and expenses required to be paid pursuant to Section 10.04 of the Company and Credit Agreement to the Trust extent invoiced no later than three (3) Business Days immediately preceding the “Company Counsel”), date of this Amendment.
(vi) The Administrative Agent shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser received a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel legal opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated New York counsel to the Loan Parties.
(vii) The Administrative Agent shall have received a solvency certificate from the chief financial officer, chief accounting officer or other officer with equivalent duties of the Borrower (after giving effect to the Revolving Credit Commitments) substantially in the form attached as Exhibit E-2 to the Credit Agreement.
(viii) The Borrower shall have paid to the Administrative Agent, for the ratable account of the Lenders holding Revolving Credit Loans and Revolving Credit Commitments immediately prior to the First Incremental Facility Closing Date, addressed to all accrued and unpaid interest and Revolving Committee Fees to, but not including, the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the First Incremental Facility Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Credit Agreement (Legence Corp.)
Conditions. The obligations NovaCal shall, unless otherwise agreed by the Parties, only have the right to grant such appointments pursuant to this Section 5.4.1 if all of the parties under this Purchase Agreement following conditions are subject to the following conditions:
a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) belowsatisfied:
(i) the representations and warranties Any such appointment of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date a Co-Marketing Partner shall be pursuant to a written agreement that is consistent with the same effect as if made on the Closing Dateterms hereof, and NovaCal shall be responsible for the Company compliance of such Co-Marketing Partner with the applicable terms of such agreement and of this Agreement; [***] Confidential treatment has been requested for the Trust have complied in all material respects bracketed portions. The confidential redacted portion has been omitted and filed separately with all the agreements Securities and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;Exchange Commission.
(ii) since Each Co-Marketing Partner will have the date right to Commercialize Licensed Products under its own and NovaCal’s trademarks and logos but not Alcon’s trademarks and logos;
(iii) Each such Co-Marketing Partner shall (A) perform any Development of Licensed Products in the applicable territory in Asia in coordination with and subject to the oversight of the Interim Financial Statements Coordination Committee and approval of Alcon (as defined belowwhich approval shall not be unreasonably withheld, delayed or conditioned) and (B) agree to be responsible for [***]of all costs of the Development of such Licensed Products specific to such territory (before and after the execution of the agreement with such Co-Marketing Partner), there including reimbursement of Alcon of appropriate amounts therefor;
(iv) Each such Co-Marketing Partner shall have the right to (A) use or cross-reference Alcon’s Regulatory Filings for such Licensed Products in such territory and (B) launch such Licensed Products simultaneously with or after Alcon’s launch of such Licensed Products in such territory;
(v) Each such Co-Marketing Partner (or NovaCal on its behalf) shall pay Alcon a royalty for so long as royalties are due to NovaCal for such Licensed Product under Section 8.4.5 and on terms and conditions substantially identical to those in Sections 8.4.6 – 8.10 (mutatis mutandis), and such royalty rate shall be [***] of such Co-Marketing Partners’ Net Sales of Licensed Product;
(vi) Alcon shall supply to NovaCal each such Co-Marketing Partner’s requirements of formulated and packaged (labeled or unlabeled, at Alcon’s discretion) Licensed Product in accordance with Section 6.1.3;
(vii) NovaCal’s co-marketing agreement with each such Co-Marketing Partner will ensure consistency and coordination of the Co-Marketing Partner’s marketing efforts and messages with respect to Licensed Products with that of Alcon (or its allowed designee);
(viii) The Co-Marketing Partner shall be subject to approval by Alcon, with such approval not to be unreasonably conditioned or delayed and may only be withheld [***] Confidential treatment has been no requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. if Alcon reasonably believes that NovaCal’s appointment of such Third Party is likely to put Alcon at a material adverse change in the condition (financial or other), earnings, business or assets commercial disadvantage with respect to other potential Co-Promotion Partners and provides NovaCal with reasonable written explanation of the Guarantor, the Company or their subsidiaries taken basis for such belief within thirty (30) days of NovaCal notifying Alcon that it is contemplating such Third Party as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in Co-Promotion Partner under this Section 3 5.4.1; and
(ix) NovaCal shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaserpromptly provide Alcon with aggregate quarterly sales data that NovaCal receives from each Co-Marketing Partner for such Co-Marketing Partner’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice sales of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityLicensed Product.
Appears in 1 contract
Sources: Collaboration and License Agreement (NovaBay Pharmaceuticals, Inc.)
Conditions. 9.1 The Agent’s obligations hereunder shall be subject to the accuracy of the parties representations and warranties of the Corporation contained in this Agreement as of the date of this Agreement and as of the Closing Date, the performance by the Corporation of its obligations under this Purchase Agreement are subject to and the following conditions:
(a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), Agent shall have delivered an opinion, received at the Closing Time a certificate dated the Closing Date, addressed to the Purchaser Agent and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished counsel to the Purchaser a certificate Agent and signed by the Company’s Chief Executive OfficerSecretary of the Corporation or another officer of the Corporation acceptable to the Agent, Presidentwith respect to the articles of continuation or other constating documents and by-laws of the Corporation, all resolutions of the board of directors of the Corporation relating to this Agreement and the placing of New Shares contemplated hereby, the incumbency and specimen signatures of signing officers of the Corporation and with respect to such other matters as the Agent may reasonably request;
(b) the Agent shall have received at the Closing Time a Senior Vice President, Chief Financial Officer, Treasurer certificate or Assistant Treasurer, certificates dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors Agent and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by each of the Chief Executive Officer, President or an Executive Vice President, Officer and Chief Financial Officer, Treasurer or Assistant Treasurer Officer of the Company, and Corporation or other officers of the Trust shall have furnished Corporation acceptable to the Purchaser a certificate Agent, certifying for and on behalf of the TrustCorporation after having made due enquiry, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) belowthat:
(i) since the respective dates as of which information is given in the Public Record (A) there has been no material change (actual, anticipated, contemplated, proposed or threatened, whether financial or otherwise) in the business, financial condition, affairs, operations, business prospects, assets, liabilities or obligations (contingent or otherwise) or capital of the Corporation and (B) no transaction has been entered into by the Corporation which is material to the Corporation other than as disclosed in the Public Record;
(ii) there are no contingent liabilities affecting the Corporation which are material to the Corporation on a consolidated basis, other than as disclosed in the Public Record;
(iii) no order, ruling or determination having the effect of suspending the issuance, sale, exercise or conversion or ceasing the trading of any other securities of the Corporation has been issued or made by any court or regulatory authority (including the TSX) and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened under any Canadian Securities Laws or by any other regulatory authority;
(iv) the Corporation is a “reporting issuer” not in material default under the Canadian Securities Laws applicable to the provinces of Alberta, British Columbia and Ontario;
(v) the Corporation has complied with and satisfied in all material respects the covenants, terms and conditions of this Agreement on its part to be complied with and satisfied up to the Closing Time; and
(vi) the representations and warranties of the Guarantor, the Company and the Trust Corporation contained in this Purchase Agreement are true and correct in all material respects on as of the Closing Time with the same force and effect as if made at and as of the Closing Date with Time after giving effect to the same effect as if made on transactions contemplated by this Agreement.
(c) the Agent shall have received at the Closing Time a legal opinion dated the Closing Date, in form and substance satisfactory to Canadian counsel to the Agent, addressed to the Agent and the Company Agent’s Canadian and UK counsel, from Canadian counsel to the Corporation, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ of Northwest Law Group, or other counsel acceptable to the Agent, as to the laws of Canada, which counsel in turn may rely upon the opinions of local counsel where they deem such reliance proper as to the laws other than those of Canada and British Columbia, Alberta and Ontario and, as to matters of fact, on certificates of the auditors of the Corporation, public officials and officers of the Corporation and correspondence between public and stock exchange officials;
(d) the Corporation shall have received the conditional approval of the TSX to the listing of the New Shares issuable pursuant to the Placing, subject to compliance with all requirements of the TSX; and
(e) the Agent not having exercised their right to terminate this Agreement pursuant to clause 11.
9.2 The Corporation agrees with the Agent to use its best efforts to procure satisfaction of the conditions contained in this clause 9 by the times and dates stated therein. Any condition may be waived, in whole or in part, and the Trust have complied time of satisfaction of any condition may be extended, by the Agent (acting in all material respects with all their absolute discretion and without any obligation to make any such waiver or extension) by written notice to the agreements and Corporation.
9.3 If any condition is not satisfied in all material respects all or (where applicable) waived by the conditions on either Agent or becomes incapable of their part to be performed being satisfied (and is not so waived) by the required time (or satisfied pursuant to such later time as the Operative Documents at Agent and the Corporation may agree), the obligations of the Agent under this Agreement and accordingly of the Placees shall cease and determine and no party shall have any claim against the others for costs, damages, compensation or prior to otherwise except:
(a) in respect of a breach by any party of the Closing Dateterms of this Agreement;
(iib) since the date provisions of clauses 3 (with respect to reimbursement of the Interim Financial Statements (as defined belowAgent’s reasonable expenses only), there has been no material adverse change 7, 12, 13, 14, 15 and 16 shall remain in full force and effect; and
(c) the condition (financial or other), earnings, business or assets of Corporation shall reimburse the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring Agent for its reasonable costs and expenses referred to in the ordinary course of business (a “Material Adverse Change”)clause 3 and clause 15.
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations willingness of the parties under this Purchase Agreement are Bank to agree to the foregoing is subject to the satisfaction of the following conditionsconditions precedent and subsequent:
aA. On or before the date of this Amendment, the Companies shall have executed and delivered to the Bank (or shall have caused to be executed and delivered to the Bank by the appropriate persons) the following:
1. This Amendment;
2. The representations joint and warranties contained herein shall be accurate several $6,000,000 Term Note of the Companies in the form attached as EXHIBIT A hereto (as hereafter amended, restated, supplemented, renewed or otherwise modified from time to time, together with any and all replacements and substitutions therefor (whether in connection with assignments by the Bank or otherwise, the "New Note").
3. The First Amendment to Leasehold Mortgage of even date herewith, together with the title certification and opinion required by SECTION 3.2A.
4. The letter executed as of the date of delivery of hereof by Forest City Cambridge, Inc. with respect to the Preferred Securitieslessor's consent signed in connection with the Mortgage.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company 5. True and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that complete copies of any required stockholders' and directors' consents and/or resolutions, authorizing the execution and delivery of such documents, certified by the Secretary of the appropriate company;
6. Certified copies of articles of incorporation and bylaws, certificates or documents are delivered to the Purchaser) of legal existence and by good standing and upon such other supporting documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser Bank or its counsel may reasonably request. If any .
B. On or before the date of this Amendment, the conditions specified in Borrower shall have delivered to the Bank the opinion of its counsel, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo with respect to this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled atother documents executed in connection herewith, satisfactory in form and substance to the Bank.
C. On or at any time prior tobefore the date of this Amendment, the Closing Date by Borrower shall have paid the Purchaser. Notice Bank a non-refundable amendment fee in the amount of such cancellation $60,000.
D. On or before July 14, 1997, the Companies shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company have executed and delivered to the Purchaser Bank (or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed have caused to be a representation executed and warranty delivered to the Bank by the appropriate persons) the following:
1. A Collateral Assignment of Leases and Rents with respect to the Trust and/or the Guarantor Leased Premises.
2. A First Amendment to Lessor's Consent and Waiver, executed by Forest City Cambridge, Inc.
3. UCC financing statements in proper form for filing with respect to AGT.
4. Such other supporting documents and certificates with respect to AGT or the Company, otherwise as the case Bank or its counsel may be, and not by such trustee or officer in any individual capacityreasonably request.
Appears in 1 contract
Sources: Loan and Security Agreement (Ariad Pharmaceuticals Inc)
Conditions. The Bank's obligations of under the parties under this Purchase Agreement Agreement, as hereby amended, are subject to the following conditions:
a) The 1. Bank and Borrowers shall have executed and delivered this Amendment.
2. Borrowers shall have paid Bank an amendment fee in the amount of $5,000.00.
3. Borrowers shall have executed and delivered such mortgages or deeds of trust as are necessary, in Bank's discretion, to mortgage to Bank 100% of all of Borrowers' Oil and Gas Properties given value by Bank in the Borrowing Base.
4. Borrowers shall, or will from time to time, have executed such additional mortgages, deeds of trust, financing statements and such other documents as are deemed necessary by Bank in order to perfect a lien in favor of Bank in and to those Oil and Gas Properties necessary to achieve the percentages required by the covenants set forth herein.
5. Each Borrower's representations and warranties contained herein set forth in Section B hereof shall be accurate true and correct on and as of the date hereof, and the date of any subsequent advance with the same effect as though such representation and warranty had been on and as of such date.
6. Each Borrower shall have delivered copies of any amendments to each such Borrower's Articles of Incorporation and/or Certificate of Incorporation and all amendments to each such Borrower's by-laws occurring subsequent to the date of the Original Agreement accompanied by a certificate issued by the secretary or an assistant secretary of the Borrowers, to the effect that each such copy is correct and complete or a certificate that no such amendments have occurred.
7. Each Borrower shall have delivered a current certificate of incumbency and signature of all of each Borrower's officers who are authorized to execute Loan Documents on behalf of such Borrower, executed by the secretary or an assistant secretary of such Borrower.
8. Each Borrower shall have delivered copies of corporate resolutions approving this Seventh Amendment, the Replacement Note and any other documents required by Bank to be executed by each Borrower authorizing the transactions contemplated herein and therein, duly adopted by the board of directors of each of the Borrowers, accompanied by a certificate of the respective secretary or an assistant secretary of each Borrower, to the effect that such copies are true and correct copies of resolutions duly adopted at a meeting or by unanimous consent of the board of directors of each Borrower and that such resolutions constitute all the resolutions adopted with respect to such transactions, have not been amended, modified, or revoked in any respect, and are in full force and effect as of the date of delivery such certificate.
9. Borrowers shall have satisfied all conditions set forth in the Agreement.
10. As of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Companydate hereof, and the Trust date of any subsequent Advance, no Event of Default nor any event which, with the giving of notice or lapse of time, would constitute an Event of Default shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor occurred and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)continuing.
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Credit Agreement (GMX Resources Inc)
Conditions. The obligations of the parties under this Purchase Agreement are subject to the following conditions:
(a) The the representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
(b) Winston & the Purchaser shall have sold securities issued by it in such an amount that the net proceeds therefrom shall be available on the Closing Date and shall be sufficient to purchase the Preferred Securities and all other preferred securities contemplated in agreements similar to this Agreement.
(c) ▇▇▇▇▇▇▇ LLP▇. ▇▇▇▇▇▇▇▇, counsel Senior Vice President, General Counsel and Secretary for the Guarantor, the Company and the Trust (the “"Company Counsel”), ") shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National AssociationJPMorgan Chase Bank, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser the opinion of the Company's General Counsel or a certificate signed by the Company’s 's Chief Executive Officer, President, a Senior President or an Executive Vice President, President and its Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s 's opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. If the Company Counsel is not admitted to practice in the State of New York, the opinion of the Company Counsel may assume, for purposes of the opinion, that the laws of the State of New York are substantively identical, in all respects material to the opinion, to the internal laws of the state in which such counsel is admitted to practice. Such Company Counsel opinion Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c(d) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ Mayer, Brown, ▇▇▇▇ & ▇▇▇▇▇▇ Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National AssociationJPMorgan Chase Bank, in substantially the form set out in Annex B hereto.
d(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Purchaser and the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National AssociationJPMorgan Chase Bank, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Guarantee Trustee, the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National AssociationJPMorgan Chase Bank, in substantially the form set out in Annex E hereto.
g(h) Each of the Guarantor and the The Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, President and by the Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:.
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;; and
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a wholeand its subsidiaries, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)business.
h(i) The Guarantor and Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Company shall have executed and its subsidiaries, whether or not occurring in the Parent Guarantee Agreement ordinary course of business, the effect of which is, in the Purchaser's judgment, so material and delivered same adverse as to The Bank make it impractical or inadvisable to proceed with the purchase of New York Trust Company, National Association, as Guarantee Trusteethe Preferred Securities.
i(j) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s 's obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s 's counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Purchase Agreement (Meadowbrook Insurance Group Inc)
Conditions. The obligations obligation of Chase, as Lender, Swingline Lender, Issuing Bank and the Administrative Agent, to execute and to perform this Amendment shall be subject to full satisfaction of the parties under this Purchase Agreement are subject to following conditions precedent on or before the following conditionsExecution Date:
(a) This Amendment shall have been executed by the Borrower and each Loan Party, and delivered to Chase, and executed by Chase, as Lender, Swingline Lender, Issuing Bank and Administrative Agent;
(b) The representations Second Amendment to Pledge and warranties contained herein shall be accurate Security Agreement, dated as of the date hereof, executed by Wedcor in favor of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”)Chase, shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser been executed by Wedcor and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law Chase;
(1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser Chase shall have received the opinion a Certificate of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel Existence for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee Borrower and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the each Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed issued by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer Secretary of the Company, and the Trust shall have furnished to the Purchaser a certificate State of the Trust, signed by an Administrative Trustee its jurisdiction of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to organization not more than thirty (i30) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or days prior to the Closing Execution Date;
(iid) since Chase shall have received copies, certified as of the Execution Date, of such corporate documents or resolutions of the Borrower and each Guarantor as Chase may request evidencing necessary corporate action by the Borrower and each Guarantor with respect to this Amendment and all other agreements or documents delivered pursuant hereto as Chase may request;
(e) Chase shall have obtained a UCC search certificate for the Borrower and each Guarantor issued by the Secretary of State of the jurisdiction where such Person is located (as such term is used in Article 9 of the UCC) not more than thirty (30) days prior to the Execution Date which certificates shall show the Administrative Agent having a first priority security interest in substantially all of the assets of each of the Borrower and the Guarantors subject only to Liens permitted by the Credit Agreement;
(f) Chase shall have received a fully executed copy of the Asset Sale and Purchase Agreement by and between Wedcor Holdings, Inc. ("Wedcor") and Olympia Business Systems, Inc. ("Olympia"), dated as of the date hereof, including all exhibits and schedules thereto, in form and substance acceptable to Lenders and evidence that all conditions precedent to the sale of certain assets of Wedcor to Olympia are satisfied and all legal matters incident to the sale of certain assets of Wedcor to Olympia are reasonably satisfactory to the Lender and its counsel; and
(g) Chase shall have received a fully executed copy of the Interim Financial Statements (as defined below), there has been no material adverse change in Agreement for the condition (financial or other), earnings, business or assets Sale and Purchase of all of the GuarantorShares in intimus International GmbH ("intimus") and Olympia, dated as of the Company or their subsidiaries taken as a wholedate hereof, whether or not arising from transactions occurring including all exhibits and schedules thereto, in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor form and the Company shall have executed the Parent Guarantee Agreement substance acceptable to Lenders and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior evidence that all conditions precedent to the Closing Datesale by Wedcor of all of the issued shares in intimus and Olympia are satisfied, the Guarantor, the Company and the Trust shall have furnished all legal matters incident to the Purchaser sale by Wedcor of all of the issued shares in intimus and Olympia are reasonably satisfactory to the Lender and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacitycounsel.
Appears in 1 contract
Sources: Credit Agreement (Escalade Inc)
Conditions. 3.1 The obligations of the parties under to this Purchase Agreement to enter into the Nuclear Liabilities Agreements are subject to the following conditionsconditional on:
a(A) The representations and warranties contained herein shall be accurate the Creditor Restructuring Agreement becoming effective pursuant to clause 1.5 thereof by not later than 31 October 2003, or such later date as the Secretary of State may in writing agree;
(B) there having been no waiver (other than a waiver approved in writing by the Secretary of State) of any Initial Condition (as defined in the Creditor Restructuring Agreement) of the date Creditor Restructuring Agreement (other than pursuant to clause 3.3 thereof) or of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company any Restructuring Condition and the Trust Creditor Restructuring Agreement having been neither amended in a manner that the Secretary of State considers to be material nor terminated;
(C) the “Company Counsel”), shall have delivered an opinion, dated Secretary of State not having determined and notified British Energy before the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National AssociationNotified Filing Date in writing that, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their her opinion, the Company Counsel may rely as Group (including for this purpose Newco 1 and Newco 2) will not be viable in all reasonably foreseeable conditions without access to factual matters upon certificates or additional financing (other documents furnished by officersthan financing which the Secretary of State is satisfied has been committed and will continue to be available when required);
(D) without prejudice to the generality of paragraph (C), directors the Secretary of State having received a copy of letters from the auditors and trustees financial advisers of Newco 1 addressed to Newco 1 giving the confirmations referred to in Rule 2.18 of the GuarantorListing Rules of the UK Listing Authority without qualification (whether or not Newco 1 is to be listed on the Official List of the UK Listing Authority), provided that the Company and delivery of copy letters pursuant to this paragraph (D) shall not impose duties upon, or increase the Trust and by government officials liabilities of, those advisers beyond what would otherwise be the case;
(provided, however, that copies E) there being no Event of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents Default (as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts defined in the law of any other jurisdiction. Such Company Counsel opinion shall not state Credit Facility Agreement) that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:is continuing;
(iF) the representations and warranties of the GuarantorBritish Energy Parties, Newco 1 and Newco 2 set out in clause 5.1 (Representations and Warranties) being true and accurate and not misleading when given and no circumstances having arisen as a result of which any of those representations and warranties would be untrue, inaccurate or misleading if repeated as at the Company and date when the Trust Nuclear Liabilities Agreements would be entered into;
(G) there having been no breach of any undertaking given in this Purchase Agreement are true and correct by any British Energy Party, Newco 1 or Newco 2 which, in all material respects on and as the reasonable opinion of the Closing Date Secretary of State, is, or is likely to be, material in the context of the Restructuring;
(H) it being the case that as at the date when the other conditions set out in this clause 3.1 have been satisfied:
(i) none of the representations and warranties to be given by British Energy Parties, Newco 1 or Newco 2 in the Nuclear Liabilities Agreements (with the same effect exception of the Acquisition Warranties (as if made on defined in the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to Option Agreement)) would be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;untrue; and
(ii) since the date none of the Interim Financial Statements undertakings to be given by British Energy Parties, Newco 1 or Newco 2 in the Nuclear Liabilities Agreements would be materially breached, were those agreements to be entered into;
(I) the initial Conditions set out in clause 3 of the Creditor Restructuring Agreement (other than any Initial Condition that refers to the satisfaction or waiver of the conditions in this clause 3.1) having been satisfied on or before 31 January 2005, or such later date as the Secretary of State may in writing agree;
(J) the Secretary of State, acting reasonably, being satisfied that:
(i) valid fixed and floating security has been granted by each of the British Energy Parties and Newco 1 and Newco 2 in favour of NLF to secure the Decommissioning Default Payment (as defined belowin the Contribution Agreement), there has been no material adverse change such security to be in form and substance reasonably comparable to the condition (financial or other), earnings, business or assets security granted in favour of the Guarantor, the Company Secretary of State under or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents Credit Facility Agreement (with such amendments as NLF may reasonably require) and shall not include as assets the subject of the security the benefits and rights of the Group under the Historic Liabilities Funding Agreement and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty Nuclear Liabilities Funding Agreement (the “Security”); and
(ii) each of the Trust and/or British Energy Parties and Newco 1 and Newco 2 have entered into such other security documentation as NLF may have reasonably required for the Guarantor purpose of creating the Security over any or all of the Companyassets and undertaking of each of those persons, on such terms as NLF may have reasonably required for the case may bepurpose of securing the Decommissioning Default Payment;
(iii) all consents and approvals for the creation of the Security have been obtained;
(iv) the Security will, and not by such trustee after it becomes effective, rank ahead of any other mortgage, pledge, lien, charge, assignment, hypothecation, or officer security interest or any other agreement or arrangement having the effect of conferring security granted by, or which has been created in respect of the assets of, any individual capacity.of the British Energy Parties, Newco 1 or Newco 2 (except for the exceptions to the negative pledge set out in paragraph 14.8 of the New Bond Term Sheet set out as Schedule 9 to the Creditor Restructuring Agreement); and
Appears in 1 contract
Sources: Government Restructuring Agreement (British Energy PLC)
Conditions. 4.1 The obligations agreements of the parties under Bank contained in Clause 3.1 of this Purchase First Supplemental Agreement are shall all be expressly subject to the following conditions:
a) The representations condition that the Bank shall have received in form and warranties contained herein shall be accurate as of substance satisfactory to the Bank and its legal advisers on or before the date of delivery this First Supplemental Agreement:
(a) evidence that the persons executing this First Supplemental Agreement on behalf of each Borrower are duly authorised to execute the Preferred Securities.same on behalf of such Borrower;
(b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of an Officer of the Guarantor New Owner confirming the names of all the Directors and Shareholders of the Company, as applicable, signed New Owner and having attached thereto true and complete copies of its incorporation and constitutional documents;
(c) true and complete copies of the resolutions passed at separate meetings of the Sole Director and Shareholders of the New Owner authorising and approving the execution of the New Finance Documents and any other document or action to which it is or is to be a party and authorising its directors or other representatives to execute the same on its behalf;
(d) the original of any power of attorney issued by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished New Owner pursuant to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to such resolutions aforesaid;
(e) evidence that “DELRAY” is:
(i) registered in the name of New Owner under the laws and flag of the Malta; and
(ii) below and, insured in accordance with the case relevant provisions of the TrustNew Mortgage and all requirements thereof in respect of such insurance have been fulfilled; and
(f) the New Finance Documents, as to (i) belowduly executed by the New Owner together with evidence that:
(i) the representations and warranties of the Guarantor, the Company and the Trust New Mortgage has been registered against “DELRAY” with first priority in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date accordance with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either laws of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing DateMalta;
(ii) since all notices required to be given under the date New Deed of Covenant, the New General Assignment and the New Charterparty Assignment have been given and acknowledged in the manner therein provided; and
(iii) save for the charges created by or created by or pursuant to the New Mortgage, the New Deed of Covenant, the New General Assignment and the New Charterparty Assignment there is no lien, charge or encumbrance of any kind whatsoever on “DELRAY” or her Earnings, Insurances or Requisition Compensation.
(g) a certified true copy of any Approved Charter entered into in respect of “DELRAY”;
(h) evidence that the New Earnings Account has been opened;
(i) documents establishing that “DELRAY” is managed by the Approved Manager;
(j) a letter of undertaking executed by the Approved Manager in favour of the Interim Financial Statements (as defined below), there has been no material adverse change Bank in the condition (financial or other), earnings, business or assets terms required by the Bank agreeing certain matters in relation to the management of “DELRAY” and subordinating the rights of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a Approved Manager against “Material Adverse Change”).
h) The Guarantor DELRAY” and the Company shall have executed New Owner to the Parent Guarantee rights of the Bank under the Finance Documents;
(k) copies of ISM DOC and SMC and the International Ship Security Certificate under the ISPS Code in respect of “DELRAY”;
(l) certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action, approvals or consents with respect to this First Supplemental Agreement and delivered same to The the New Finance Documents (including without limitation) all necessary governmental and other official approvals and consents in such pertinent jurisdictions as the Bank deems appropriate;
(m) such legal opinions as the Bank may require in respect of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company matters contained in this First Supplemental Agreement and the Trust shall have furnished New Finance Documents; and
(n) evidence that the agent referred to the Purchaser and in Clause 9.4 has accepted its counsel such further information, certificates and documents appointment as the Purchaser or its counsel may reasonably request. If any agent for service of the conditions specified in process under this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase First Supplemental Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityNew Finance Documents.
Appears in 1 contract
Sources: Loan Agreement (DryShips Inc.)
Conditions. The obligations 3.1 Completion of the parties under this Purchase Agreement are subject to Debt Restructuring is conditional, inter alia, upon the following conditions:
a) The representations and warranties contained herein shall be accurate as of having been obtained, performed or satisfied by the date of delivery completion of the Preferred Securities.Settlement Agreement ("Completion Date"):
b) Winston & ▇▇▇▇▇▇ LLP, counsel for 3.1.1 the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees approval of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements Shareholders (as defined below) at a general meeting for (a) the allotment and issuance of the Conversion Shares to Wintercrest (b) a whitewash resolution ("Whitewash Resolution"), there has been no material adverse change in waiving the condition Shareholders' (financial or other)as defined below) right to receive an offer by Wintercrest to acquire all of their Shares, earnings, business or assets and (c) all other transactions under the Debt Restructuring;
3.1.2 the approval in-principle of the GuarantorSingapore Exchange Securities Trading Limited ("SGX-ST") for the listing and quotation of the Conversion Shares on the Official List of the mainboard of the SGX-ST having been obtained from the SGX-ST and not having been revoked or amended, and where such approval is subject to conditions, to the extent that any such conditions are required to be fulfilled on or before Completion Date, they are so fulfilled;
3.1.3 the issue of the Conversion Shares not being prohibited by any statute, order, rule or regulation promulgated after the date of this Agreement by any legislative, executive or regulatory body or authority of Singapore or elsewhere;
3.1.4 a waiver in writing being obtained from the Securities Industry Council of Singapore ("SIC") waiving the requirement of Wintercrest to make a mandatory takeover offer under Rule 14 of the Code of Takeovers and Mergers of Singapore arising from the issuance of the Conversion Shares ("Whitewash Waiver");
3.1.5 a written legal opinion issued by the Company's Australian legal advisers that a mandatory takeover offer bid for all other shares not owned or agreed to be owned (under the Settlement Agreement) by Wintercrest in Cokal Limited will not be required by Australian Securities and Investments Commission; and
3.1.6 all other approval and consent necessary or desirable having been received by the Company and/or Wintercrest under all applicable laws and regulations in respect of the Debt Restructuring.
3.2 Under the Settlement Agreement, the Company or their subsidiaries taken as a whole, whether or not arising from Facility Agreement shall continue to be in full force and effect until all transactions occurring in contemplated under the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not Debt Restructuring have been fulfilled when approved and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacitycompleted.
Appears in 1 contract
Sources: Settlement Agreement
Conditions. (a) The obligations of each party hereto to take the actions to be taken by it at the Closing as provided in Section 2 hereof shall be subject to the performance by the other parties under this Purchase Agreement hereto of the actions to be taken by such other parties in connection with the Restructuring, it being understood that the actions to be taken at the Closing pursuant to Section 2 hereof are mutually dependent and shall be taken substantially simultaneously.
(b) In addition, the obligations of each Holder to take the actions to be taken by such Holder at the Closing as provided in Section 2 hereof shall be subject to the following conditions:
a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are contained herein shall be true and correct in all material respects on and as of the Closing Date with the same effect as if though made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either as of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have delivered to such Holder (A) certified copies of its Restated Certificate of Incorporation and Restated By-laws, (B) certified copies of resolutions evidencing the due authorization of all actions to be taken by the Company in connection with the Restructuring and (C) a certificate regarding the incumbency of all officers of the Company executing any agreement or instrument to be executed by the Parent Guarantee Agreement Company as provided in Section 2 hereof;
(iii) the Manager shall have delivered to such Holder (A) certified copies of its certificate of incorporation and other organizational documentation, which shall be substantially in the form of Exhibit A hereto (including the resolutions provided for therein authorizing the actions to be taken by the Manager in connection with the Restructuring) and (B) a certificate regarding the incumbency of all officers of the Manager executing any agreement or instrument to be executed by the Manager as provided in Section 2 hereof;
(iv) the Company shall have delivered same to The Bank such Holder evidence reasonably satisfactory to such Holder that any required consent or approval of New York Trust the FCC to the Restructuring has been obtained and that such consent or approval has become final on or before the Closing Date (such consent, including consent duly granted by the FCC staff pursuant to delegated authority, shall be deemed to have become final if (i) it has not been reversed, stayed, enjoined or set aside, (ii) no timely request for stay, rehearing or reconsideration of, or appeal from, that consent is pending before the FCC or any court of competent jurisdiction and (iii) the time for filing any such request, petition or appeal, or for sua sponte review by the FCC, has expired);
(v) such Holder shall have received from Cravath, Swaine & Moor▇, ▇▇unsel to the Company, National Associationand Wilm▇▇, as Guarantee Trustee.
i) Prior ▇▇tl▇▇ & ▇ick▇▇▇▇▇, ▇▇ecial FCC counsel to the Company, their respective opinions, dated the Closing Date, substantially in the Guarantorforms attached hereto as Exhibits M-1 and M-2, respectively;
(vi) the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and duly paid all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel expenses incurred in connection with the Operative Documents negotiation, preparation, execution and delivery of this Agreement and the transactions contemplated hereby Restructuring Documents (as hereinafter defined), including, but not limited to, all fees and thereby expenses referred to in Section 6 hereof;
(vii) such Holder shall have received written confirmation, in form and substance reasonably satisfactory to it, that the title insurance insuring the lien of the Mortgage remains in full force and effect after giving effect to the First Amendment to Mortgage;
(viii) a Private Placement Number relating to each series of Preferred Stock shall have been duly ordered from Standard & Poor's Corporation; and
(ix) all documents and instruments to be executed and delivered in connection with the Restructuring, the forms and terms of which are not otherwise provided for herein, shall be deemed reasonably satisfactory in form and substance to be a representation such Holder and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityits counsel.
Appears in 1 contract
Sources: Restructuring Agreement (King World Productions Inc)
Conditions. 9.1 The Agent’s obligations hereunder shall be subject to the accuracy of the parties representations and warranties of the Corporation contained in this Agreement as of the date of this Agreement and as of the Closing Date, the performance by the Corporation of its obligations under this Purchase Agreement are subject to and the following conditions:
(a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), Agent shall have delivered an opinion, received at the Closing Time a certificate dated the Closing Date, addressed to the Purchaser Agent and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished counsel to the Purchaser a certificate Agent and signed by the Company’s Chief Executive OfficerSecretary of the Corporation or another officer of the Corporation acceptable to the Agent, Presidentwith respect to the articles of continuation or other constating documents and by-laws of the Corporation, all resolutions of the board of directors of the Corporation relating to this Agreement and the Placing of the Flow-Through Shares contemplated hereby, the incumbency and specimen signatures of signing officers of the Corporation and with respect to such other matters as the Agent may reasonably request;
(b) the Agent shall have received at the Closing Time a Senior Vice President, Chief Financial Officer, Treasurer certificate or Assistant Treasurer, certificates dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors Agent and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by each of the Chief Executive Officer, President or an Executive Vice President, Officer and Chief Financial Officer, Treasurer or Assistant Treasurer Officer of the Company, and Corporation or other officers of the Trust shall have furnished Corporation acceptable to the Purchaser a certificate Agent, certifying for and on behalf of the TrustCorporation after having made due enquiry, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) belowthat:
(i) since the respective dates as of which information is given in the Public Record (A) there has been no material change (actual, anticipated, contemplated, proposed or threatened, whether financial or otherwise) in the business, financial condition, affairs, operations, business prospects, assets, liabilities or obligations (contingent or otherwise) or capital of the Corporation and (B) no transaction has been entered into by the Corporation which is material to the Corporation other than as disclosed in the Public Record;
(ii) there are no contingent liabilities affecting the Corporation which are material to the Corporation on a consolidated basis, other than as disclosed in the Public Record;
(iii) no order, ruling or determination having the effect of suspending the issuance, sale, exercise or conversion or ceasing the trading of any other securities of the Corporation has been issued or made by any court or regulatory authority (including the TSX) and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened under any Canadian Securities Laws or by any other regulatory authority;
(iv) the Corporation is a “reporting issuer” not in material default under the Canadian Securities Laws applicable to the provinces of Alberta, British Columbia and Ontario;
(v) the Corporation has complied with and satisfied in all material respects the covenants, terms and conditions of this Agreement on its part to be complied with and satisfied up to the Closing Time; and
(vi) the representations and warranties of the Guarantor, the Company and the Trust Corporation contained in this Purchase Agreement are true and correct in all material respects on as of the Closing Time with the same force and effect as if made at and as of the Closing Date with Time after giving effect to the same effect as if made on transactions contemplated by this Agreement.
(c) the Agent shall have received at the Closing Time a legal opinion dated the Closing Date, in form and substance satisfactory to Canadian counsel to the Agent, addressed to the Agent and the Company Agent’s Canadian and UK counsel, from Canadian counsel to the Corporation, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ of Northwest Law Group, or other counsel acceptable to the Agent, as to the laws of British Columbia, Canada, which counsel in turn may rely upon the opinions of local counsel where they deem such reliance proper as to the laws other than those of British Columbia, Canada and with respect to matters of fact on the certificates of the auditors of the Corporation, public officials and officers of the Corporation and correspondence between public and stock exchange officials;
(d) the Corporation shall have received the conditional approval of the TSX to the listing of the Flow-Through Shares issuable pursuant to the Placing, subject to compliance with all requirements of the TSX; and
(e) the Agent not having exercised their right to terminate this Agreement pursuant to clause 11.
9.2 The Corporation agrees with the Agent to use its best efforts to procure satisfaction of the conditions contained in this clause 9 by the times and dates stated therein. Any condition may be waived, in whole or in part, and the Trust have complied time of satisfaction of any condition may be extended, by the Agent (acting in all material respects with all their absolute discretion and without any obligation to make any such waiver or extension) by written notice to the agreements and Corporation.
9.3 If any condition is not satisfied in all material respects all or (where applicable) waived by the conditions on either Agent or becomes incapable of their part to be performed being satisfied (and is not so waived) by the required time (or satisfied pursuant to such later time as the Operative Documents at Agent and the Corporation may agree), the obligations of the Agent under this Agreement and accordingly of the Subscribers shall cease and determine and no party shall have any claim against the others for costs, damages, compensation or prior to otherwise except:
(a) in respect of a breach by any party of the Closing Dateterms of this Agreement;
(iib) since the date provisions of clauses 3 (with respect to reimbursement of the Interim Financial Statements (as defined belowAgent’s reasonable expenses only), there has been no material adverse change 7, 12, 13, 14, 15 and 16 shall remain in full force and effect; and
(c) the condition (financial or other), earnings, business or assets of Corporation shall reimburse the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring Agent for its reasonable costs and expenses referred to in the ordinary course of business (a “Material Adverse Change”)clause 3 and clause 15.
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations of the parties under this Purchase Agreement are subject to the following conditions:
a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated acknowledge that Noteholder has required that on or before the Closing Date, addressed to (i) the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company Borrower shall have furnished to paid the Purchaser a certificate signed by Noteholder all payments under the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated Loan Documents which shall have become due and payable as of the Closing Date, addressed (ii) the Assumptor shall have deposited such sums with the Noteholder to comply with the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors impound and trustees reserve funds provisions of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinionsLoan Documents, including, without limitationbut not limited to, the Legal Opinion Accord Section 1.6 & 1.7 of the ABA Section Deed of Business Law Trust, (1991).
ciii) The Purchaser fee simple title to the Property shall have been furnished conveyed by Borrower to Assumptor, with the opinion conveyance instrument recorded with the land records recording officer of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLPDouglas County, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇C▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel (iv) all taxes due and payable for the Delaware Trustee, dated Property must be paid current as of the Closing Date, addressed (v) the Assumptor shall cause to be delivered to the PurchaserNoteholder (a) an opinion of counsel, The Bank of New York Trust Company, National Association, satisfactory to the Delaware Trustee and the CompanyNoteholder, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Companyits sole discretion, as to (i) form, substance and rendering attorney, opining to the validity and enforceability of this Assumption Agreement and the terms and provisions hereof, and any other agreement executed in connection with the transactions contemplated hereby, the authority of the Assumptor and Substitute Indemnitor and any constituents of the Assumptor and Substitute Indemnitor, to execute and deliver this Assumption Agreement and perform their obligations under the Note and other Loan Documents, and such other matters as reasonably requested by the Noteholder, and (iib) below anda “state law non-dissolution” opinion of counsel from Delaware counsel satisfactory to Noteholder in its sole discretion,, in (vi) Assumptor and Borrower shall cause to be delivered to Noteholder, at Borrower’s and Assumptor’s expense, a lender’s title policy, or an endorsement to an existing lender’s policy, insuring the case Deed of Trust as modified by this Assumption Agreement as a valid first lien on the Property, naming the Noteholder as the insured thereunder, and naming the Assumptor as owner of the TrustProperty, which policy shall insure that, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below)recording of this Assumption Agreement, there has been no material adverse change the Property shall not be subject to any additional exceptions or liens other than those conditions in the condition (financial or other), earnings, business or assets original title policy insuring the lien of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course Deed of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement Trust and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents Deed of Trust, (vii) Assumptor shall obtain, and provide Noteholder with proof thereof satisfactory to Noteholder, insurance for the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty Property which satisfies the requirements of the Deed of Trust and/or the Guarantor or the Company, as the case may beand Assumptor shall have paid one year’s premium in advance on such insurance, and not by (viii) Assumptor shall deliver to Noteholder such trustee other documents as Noteholder shall reasonably request such as new financing statements or officer in any individual capacityamendments to existing financing statements. Upon Noteholder’s authorization of the recording of this Assumption Agreement, Noteholder acknowledges that the above requirements have been waived or satisfied.
Appears in 1 contract
Sources: Consent and Assumption Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Conditions. The obligations (a) This Agreement will become effective on the date on which this Agreement shall have been executed and delivered by the Borrower, the other Loan Parties, the Administrative Agent and the 2017-1 Incremental Term Loan Lenders; provided that the amendments to the Credit Agreement contemplated by Section 2 hereof shall only become effective upon the satisfaction (or waiver by the 2017-1 Incremental Term Loan Lenders) of the parties under this Purchase Agreement are subject conditions set forth in Section 3(b) below and the funding of the 2017-1 Incremental Term Loans.
(b) Each 2017-1 Incremental Term Loan Lender shall be required to fund its 2017-1 Incremental Term Loan Commitment when the following conditions:conditions shall have been satisfied (or waived by the 2017-1 Incremental Term Loan Lenders) (such date, the “Effective Date”):
a(i) The representations and warranties contained herein the Administrative Agent shall be accurate have received a certificate of the Borrower dated as of the date of delivery Effective Date signed by a Responsible Officer of the Preferred Securities.
bBorrower (i) Winston & ▇▇▇▇▇▇ LLP, counsel for (A) certifying and attaching the Guarantor, resolutions or similar consents adopted by the Company Borrower approving or consenting to this Agreement and the Trust incurrence of the 2017-1 Incremental Term Loans, (B) certifying that the “Company Counsel”certificate or articles of incorporation and by-laws of the Borrower either (x) has not been amended since the Closing Date or (y) is attached as an exhibit to such certificate, and (C) certifying as to the incumbency and specimen signature of each officer executing this Agreement and any related documents on behalf of the Borrower and (ii) certifying as to the matters set forth in clauses (iv), shall (v) and (vi) below;
(ii) all fees and out-of-pocket expenses for which invoices have delivered an opinion, dated the Closing Date, addressed been presented prior to the Purchaser Effective Date (including the reasonable fees and The Bank expenses of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished legal counsel) required to the Purchaser a certificate signed be paid or reimbursed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed Borrower pursuant to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees Section 10.5 of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates Credit Agreement or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts letter agreement in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser connection with this Agreement shall have been furnished paid or reimbursed;
(iii) the Administrative Agent shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed in form and substance reasonably satisfactory to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:Agent;
(iiv) each of the representations and warranties of made by each Loan Party contained in the Guarantor, Credit Agreement and in the Company and the Trust in this Purchase Agreement are other Loan Documents shall be true and correct in all material respects as of the Effective Date as if made on and as of such date (other than representations and warranties which speak only as of a certain date, which representations and warranties shall be made only on such date);
(v) the Closing Date with the same effect as if made on the Closing Date, representations and the Company warranties in Section 5 of this Agreement shall be true and the Trust have complied correct in all material respects with all as of the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Effective Date;
(iivi) since no Event of Default shall exist on the date of Effective Date immediately before and after giving effect to the Interim Financial Statements effectiveness hereof; and
(as defined below), there has been no material adverse change in vii) the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company Borrower shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel Administrative Agent a Borrowing Notice in connection accordance with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty Section 2.2 of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityCredit Agreement.
Appears in 1 contract
Conditions. The obligations This Amendment (other than Section 10 below, which is effective immediately upon execution and delivery) will be effective as of the parties under this Purchase Agreement are subject to Effective Date, but only upon satisfaction of the following conditionsconditions precedent:
(a) The representations and warranties contained herein shall be accurate Agent’s receipt of original or facsimile or portable document format (PDF) copies (followed promptly by originals) of each of the following, each properly executed, each dated as of the Effective Date (or, in the case of certificates of governmental officials, a recent date before the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the PurchaserAmendment) and by each in form and upon such other documents as such counsel may, substance satisfactory to Agent and its legal counsel:
(i) this Amendment;
(ii) promissory notes in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions favor of each New Lender;
(iii) an amended and restated promissory note in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion favor of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated Bank;
(iv) mortgages encumbering the Closing Date, addressed Borrowing Base Properties in the State of Oklahoma Borrower is acquiring pursuant to the Purchaser Cimarex Acquisition (the “Cimarex Mortgages”);
(v) title opinions or other information in form and The Bank substance reasonably acceptable to the Administrative Agent demonstrating satisfactory title to at least 90% of New York Trust Companythe PV-8 of the Credit Parties’ total Proved Developed Producing Reserves (after giving effect to the Cimarex Acquisition);
(vi) a certificate from Borrower, National Associationcertifying that (A) the copy of the Cimarex PSA attached to the certificate is true and complete, in substantially full force and effect, without amendment except as shown, and (B) Borrower and the form set out in Annex B hereto.
dCimarex Sellers either (1) The Purchaser shall have received consummated, or (2) are ready, able and willing to consummate the opinion of ▇▇▇▇▇▇▇▇Cimarex Acquisition, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed subject only to the Purchaserexecution and delivery of this Amendment by Agent, The Bank of New York Trust Company, National Association, the Delaware Trustee Lenders and the CompanyCredit Parties and the funding of any Loans to be used by Borrower to finance the Cimarex Acquisition pursuant to the Cimarex PSA, in substantially the form set out in Annex C hereto.either case without waiver of any material condition precedent;
e(vii) The Purchaser shall have received the opinion certificates of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLPresolutions or other action, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
fincumbency certificates and/or other certificate(s) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee officer of any Credit Party that is other than a natural person, as required by the Agent, to evidence the identity, authority and capacity of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor signatory(ies) to this Amendment and the Companyother Credit Documents; and
(b) If required by Agent, as to (ithe payment by Borrower of all amounts described in Sections 5(d) and (ii) below and, in the case 11 below. The Agent’s declination to require Borrower to pay all or a portion of the Trust, these amounts as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant a condition to the Operative Documents at or prior effectiveness of this Amendment will not excuse Borrower’s obligation to do so immediately upon the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)Agent’s demand.
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The As a condition precedent to the effectiveness of this Amendment, the Amended and Restated Note, the First Amendments to Mortgage and the First Amendment to and Reaffirmation of Guaranty, and to the Administrative Agent’s and the Lenders’ obligations hereunder, each of the parties under this Purchase Agreement are subject to following conditions precedent shall have been satisfied (as determined by the following conditions:
aAdministrative Agent in its sole and absolute discretion) The representations and warranties contained herein shall be accurate as of the date of delivery of this Amendment:
(a) All parties shall have executed and delivered this Amendment and the Preferred SecuritiesFirst Amendment to Mortgages.
(b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company The Borrower shall executed and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) Administrative Agent the Amended and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991)Restated Note.
(c) The Purchaser Guarantor shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed executed and delivered to the Purchaser Administrative Agent the First Amendment to and The Bank Reaffirmation of New York Trust Company, National Association, in substantially the form set out in Annex B heretoGuaranty.
(d) The Purchaser Borrower shall have paid to the Administrative Agent, for the benefit of the Lenders, a loan modification fee in the amount of $75,000.00.
(e) The Administrative Agent shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed an endorsement to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel title policy for the each Borrowing Base Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) extending the effective date of such policy to the date and time of the recording of the applicable First Amendment to Mortgage, and reflecting the recordation of such First Amendment to Mortgage, (ii) below andincreasing the insured amount to $45,000,000.00, in (iii) showing that there have been no changes to the case state of the Trust, title as to (i) below:
(i) such Borrowing Base Property or exceptions not previously approved by the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) Administrative Agent since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets issuance of the Guarantororiginal title policy for such Borrowing Base Property, and showing that all real estate taxes and assessments which are due and payable (but not delinquent) have been paid in full, and (iv) insuring the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in continuing first priority lien of the ordinary course of business (a “Material Adverse Change”)applicable Mortgage.
h(f) The Guarantor and the Company Administrative Agent shall have executed received the Parent Guarantee Agreement following for each Borrower: (i) current certificates of existence from the Delaware Secretary of State, and delivered same to The Bank for each Borrower other than the G&E Healthcare Borrower, from the Secretary of New York Trust CompanyState where such Borrower’s Borrowing Base Property is located; (ii) current certified copies of certificate of limited partnership or certificate of formation, National Associationfrom the Delaware Secretary of State, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled atcase be, or at any time prior to, the Closing Date by the Purchaser. Notice a certificate of no change from such cancellation shall be given to the Company and the Trust in writing Borrower’s general partner or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Companymanager, as the case may be, and (iii) the limited partnership agreement or operating agreement, as the case may be, or a certificate of no change from such Borrower’s general partner or manager, as the case may be.
(g) The Administrative Agent shall have received the following for the Guarantor: (i) current certificate of good standing from the Maryland Secretary of State; (ii) current certified copy of the articles of organization from the Maryland Secretary of State, or a certificate of no change from an officer of the Guarantor, and (iii) the by-laws, or a certificate of no change from an officer of the Guarantor.
(h) The Administrative Agent shall have received consents or resolutions, each with a certificate of incumbency, from the general partner or manager of each Borrower, as the case may be, authorizing (i) the increase in the amount of the Aggregate Commitments, (ii) the modifications to the terms of the Borrowing Base, (iii) the modification of the interest rate, (iv) all other modifications to the Credit Agreement and the other Loan Documents as set forth in this Amendment, and (v) the execution and delivery by the Borrower of this Amendment, the Amended and Restated Note, the First Amendments to Mortgage, and any other documents or instruments required or requested by the Administrative Agent.
(i) The Administrative Agent shall have received consents or resolutions, each with a certificate of incumbency, from an officer of the Guarantor authorizing (i) the increase in the amount of the Aggregate Commitments, (ii) the modifications to the Borrowing Base Conditions, (iii) the modification of the interest rate, (iv) all other modifications to the Credit Agreement and the other Loan Documents as set forth in this Amendment, (v) the execution and delivery by the Borrower of this Amendment, the Amended and Restated Note, the First Amendments to Mortgage, and any other documents or instruments required or requested by the Administrative Agent, and (vi) the execution and delivery by the Guarantor of the First Amendment to and Reaffirmation of Guaranty, and any other documents or instruments required or requested by the Administrative Agent.
(j) The Administrative Agent shall have received opinions of counsel for each Borrower and the Guarantor as to (i) the enforceability and binding effect of this Amendment, the Amended and Restated Note, the First Amendments to Mortgage, the First Amendment to and Reaffirmation of Guaranty, and any other documents or instrument required or requested by the Administrative Agent, as applicable, (ii) the due authority, execution and delivery of this Amendment, the Amended and Restated Note, the First Amendments to Mortgage, the First Amendment to and Reaffirmation of Guaranty, and any other documents or instrument required or requested by the Administrative Agent, as applicable, and (iii) such other matters as the Administrative Agent may reasonably require.
(k) The Administrative Agent shall have received with respect to each Borrowing Base Property certificates of insurance, together with evidence satisfactory to the Administrative Agent, evidencing that the insurance policies in coverages, the amounts and form, and otherwise in accordance with the terms and provisions of the Loan Documents, are in full force and effect.
(l) The Administrative Agent shall have received from the G&E Healthcare Borrower a current Borrowing Base Certificate dated as of the date hereof.
(m) The Administrative Agent shall have received from the Guarantor a financial covenant compliance certificate dated no more than sixty (60) days prior to the date hereof in conformance with the requirements set forth in the Credit Agreement or the Guaranty.
(n) The Administrative Agent shall have received such other documents or instruments as are required under this Amendment or as may otherwise be requested by the Administrative Agent.
(o) The Administrative Agent shall have been reimbursed by the Borrower in the full amount of the Administrative Agent’s costs and expenses incurred in connection with this Amendment and the transactions, documents and instruments contemplated hereby, including, without limitation, title insurance costs, recording fees and reasonable attorneys’ fees and expenses.
(p) The representations and warranties set forth in this Amendment and all of the Loan Documents shall continue to remain true and correct in all respects.
(q) As of the date hereof, there shall not by have been a Default or Event of Default on the part of any Borrower or the Guarantor under any of the Loan Documents. The parties agree that this Amendment will not be binding upon or enforceable against the Administrative Agent or any Lender until such trustee or officer time as each of the conditions precedent set forth above have been satisfied in any individual capacitythe Administrative Agent’s sole and absolute determination, and then only after the Borrower has fully complied with all of the other terms and conditions set forth in this Amendment.
Appears in 1 contract
Sources: Credit Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment is subject to the satisfaction of the following conditionsconditions precedent, unless specifically waived by Agent:
(a) Agent shall have received the following documents, each in form and substance satisfactory to Agent:
(i) This Amendment, duly executed by Borrowers, together with the Consent and Ratification (the “Ratification”) hereto, duly executed by the Guarantors;
(ii) Officers’ Certificates dated as of the date of this Amendment, in form and substance satisfactory to Agent, certified by the Secretary of the Borrowers and the Guarantors certifying among other things, that the Borrowers’ and Guarantors’ Board of Directors have met and have adopted, approved, consented to and ratified resolutions which authorize the execution, delivery and performance by Borrowers of this Amendment, and the Guarantors of the Ratification, and each other document, instrument and agreement executed in connection with or relating to the Agreement, this Amendment or the Ratification (hereinafter individually referred to as a “Loan Document” and collectively referred to as the “Loan Documents”);
(b) The representations and warranties contained herein herein, in the Agreement, as amended hereby, and/or in each other Loan Document shall be accurate true and correct as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLPhereof, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Datedate hereof;
(iic) since the date No Event of the Interim Financial Statements (as defined below)Default shall have occurred and be continuing and no Default shall exist, there unless such Event of Default or Default has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust specifically waived in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel Agent; and
(d) All corporate proceedings taken in connection with the Operative Documents transactions contemplated by this Amendment and all documents, instruments and other legal matters incident thereto, shall be satisfactory to Agent.
(e) The terms of subordination of the 2007 Subordinated Notes contained in the 2007 Indenture are consistent with, and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty other terms of the Trust and/or 2007 Indenture are materially consistent with, the Guarantor or terms set forth in the CompanyMarch 15, as 2007 draft of the case may be, and not by such trustee or officer in any individual capacityDescription of the Notes previously provided to the Lender.
Appears in 1 contract
Sources: Loan and Security Agreement (Pioneer Companies Inc)
Conditions. 4.1 The obligations obligation of the parties under this Purchase Agreement are Purchasers to consummate the Closing is subject to the following conditions:
a) The representations and warranties contained herein shall be accurate as fulfilment of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust following conditions (the “Company CounselPurchaser Conditions”), any of which may be waived by Purchaser 1:
4.1.1 Sale Company having issued and allotted new shares to Seller such that the total issued share capital of Sale Company shall have delivered an opinionat Closing be 1,000 (for the avoidance of doubt, dated all such issued and outstanding shares of Sale Company immediately prior to the Closing DateDate shall be deemed the Sale Shares under this Agreement);
4.1.2 Subject to Section 4.5, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are Seller having delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to Purchasers (i) the audited accounts of the Sale Company for the financial years ended 31 December 2016 and 31 December 2017 and for the six months ended 30 June 2018, each of which shall be covered by an unqualified opinion of one of the Big 4 Accountants that the financial statements of Sale Company give a true and fair view of the financial position, financial performance and cash flows of Sale Company as at and for the periods ending on the aforementioned dates (the “Audited Accounts”); and (ii) below and, in management accounts for the case of period from 1 July 2018 to the Trust, as to Closing Date (i) below:
(i) the representations “Management Accounts” and warranties of together with the GuarantorAudited Accounts, the “Accounts”);
4.1.3 Seller and Sale Company having performed and complied with all obligations under this Agreement that are required to be performed or complied with by it on or before the Trust Closing in this Purchase Agreement are all material respects; and
4.1.4 the Seller’s Warranties remaining true and correct in all material respects on and as of the Closing Date as though made on such date in all material respects.
4.2 The obligation of Seller to consummate the Closing is subject to the fulfilment of the following conditions (the “Seller Conditions”, and together with Purchaser Conditions, the same “Conditions”), any of which may be waived by Seller:
4.2.1 the Purchasers having performed and complied with all obligations under this Agreement that are required to be performed or complied with by each of them on or before the Closing Date in all material respects; and
4.2.2 the Purchasers’ Warranties remaining true and correct as of the Closing Date as though made on such date in all material respects.
4.3 Purchaser 1 may, at any time, waive in whole or in part any of the Purchaser Conditions by written notice to the Seller and Seller may, at any time, waive in whole or in part any of its Seller Conditions by written notice to Purchaser 1.
4.4 Subject to Section 4.5, if, in respect of the Closing, Seller, on one hand, or the Purchasers, on the other hand, fail(s) to comply on the Closing Date with any obligation in Section 3.2 and/or Schedule G, the non-defaulting Party shall be entitled (in addition to and without prejudice to all other rights and remedies available, including the right to claim damages) by written notice to such defaulting Party to effect Closing so far as if made reasonably practicable having regard to the defaults which have occurred, or to fix a new date for Closing which is no later than reasonably necessary for such defaulting Party to remedy such default and in any event no later than thirty (30) calendar days following the original Closing Date, in which case the provision of Section 3.2 and/or Schedule G shall apply to the Closing as so deferred provided that such deferral may only occur once.
4.5 Notwithstanding anything to the contrary in this Agreement, if, on the Closing Date, and Seller is unable to or fails to deliver the Company and the Trust have complied in Accounts, Seller shall be entitled to, by written notice to Purchasers, to fix a new date for Closing, at its discretion, which is no later than reasonably necessary for Seller to deliver all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements Accounts and in any event no later than thirty (as defined below), there has been no material adverse change in 30) calendar days following the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the original Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel provided that such further information, certificates and documents as the Purchaser or its counsel deferral may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityonly occur once.
Appears in 1 contract
Sources: Share Purchase Agreement (Alibaba Group Holding LTD)
Conditions. The obligations of This Amendment Agreement shall become effective upon the parties under this Purchase Agreement are subject Borrower delivering to the following conditions:
a) The representations and warranties contained herein shall be accurate as of Administrative Agent the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (following; provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitationdelivery, the Legal Opinion Accord amendment set forth in Section 2(r) hereof shall be deemed effective as of September 30, 2004:
(a) ten (10) counterparts of this Amendment Agreement duly executed by the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National AssociationAdministrative Agent, the Delaware Trustee Lenders, the Borrower and the Company, in substantially the form set out in Annex C hereto.Subsidiary Guarantors;
e(b) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President secretary or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer assistant secretary of each of the CompanyBorrower and each Subsidiary Guarantor, in form and the Trust shall have furnished substance satisfactory to the Purchaser a certificate of the TrustAdministrative Agent, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to certifying (i) and (ii) below and, in that the case articles or certificate of incorporation or articles or certificate of organization of the Trust, as to (i) below:
(i) the representations and warranties of the Borrower or such Subsidiary Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, have not been amended since such articles or certificate were delivered on the Effective Date or attaching any amendments thereto since the Effective Date, as each may be certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, (ii) that the bylaws, operating agreement, partnership agreement or other comparable document of the Borrower or such Subsidiary Guarantor, as the case may be, have not been amended since such bylaws, operating agreement, partnership agreement or other comparable document was delivered on the Effective Date, and not that such document has been in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors, managers, general partners or other comparable governing body of the Borrower or such Subsidiary Guarantor, as the case may be, authorizing the execution, delivery and performance of this Amendment Agreement and the amendments contemplated herein, and as to the incumbency and genuineness of the signature of each officer of the Borrower or such Subsidiary Guarantor, as the case may be, executing this Amendment Agreement, and attaching all such copies of the documents described above;
(c) amendments or modifications to the existing Mortgages, in form and substance reasonably satisfactory to the Administrative Agent, dated as of the date hereof and duly executed by the Borrower, a Subsidiary Guarantor and the trustee thereunder, as applicable, together in each case with the Mortgaged Property Support Documents and any additional title policy endorsements required by the Administrative Agent in its reasonable discretion;
(d) all fees and expenses payable by the Borrower by reason of this Amendment Agreement;
(e) such other documentation, instruments, consents and agreements as the Administrative Agent shall reasonably request including those described in paragraph 8 of this Amendment Agreement;
(f) amended and restated or officer replacement Revolving Notes for each Revolving Lender whose Revolving Credit Commitment is increasing as a result of this Amendment Agreement and amended and restated or replacement Term Loan A Notes reflecting the re-advance of a portion of the Term Loan A pursuant to this Amendment Agreement; and
(g) irrevocable notice shall have been given to the Administrative Agent that the Term Loan B will be prepaid in full on or about the Amendment No. 1 Effective Date but in any individual capacityevent not later than the third Business Day following the Amendment No. 1 Effective Date, with proceeds of the Amendment No. 1 Advance and $9,010,000 drawn under the Revolving Credit Facility.
Appears in 1 contract
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment is subject to the satisfaction of the following conditionsconditions precedent (such date on which such conditions are satisfied being the “Effective Date”), unless specifically waived by Agent and Lenders.
(a) Agent shall have received all of the following documents, each document (unless otherwise indicated) being dated the date hereof, duly authorized, executed and delivered by the parties thereto, and in form and substance reasonably satisfactory to Agent and Lenders:
a(i) this Amendment;
(ii) that certain First Amendment to Pledge and Security Agreement dated as of June ___, 2007 between Borrower and Agent.
(iii) a certified copy of the resolutions of the Directors of the Borrower authorizing the execution, delivery and performance of this Amendment and any and all other Loan Documents executed by the Borrower in connection therewith, along with a certificate of incumbency certified by the secretary of the Borrower with specimen signatures of the officers of the Borrower who are authorized to sign such documents (such certificates of incumbency to be bring down certificates of incumbency for Borrower);
(iv) that certain Reaffirmation of Loan Documents, dated as of June ___, 2007 among Borrower, Agent and Lenders;
(v) an executed copy of (i) the First Amendment to Preferred Fleet Mortgage, Covering the Vessel SUPERIOR ENDEAVOR, Official Number 1646 and (ii) the First Amendment to Preferred Fleet Mortgage, Covering the Vessels GULF DIVER III, Official Number 576020, GULF DIVER IV, Official Number 553457, GULF DIVER V, Official Number 555837 and GULF DIVER VI, Official Number 589812;
(vi) such additional documents, instruments and information as Agent or Lenders or their legal counsel may reasonably request.
(b) Agent shall have received a closing fee in the amount of $45,000, which shall be fully earned, nonrefundable and payable on the Effective Date.
(c) The representations and warranties contained in the Credit Agreement and/or in the other Loan Documents in each case, as Modified (hereinafter defined) hereby and as contained herein shall be accurate true and correct as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Effective Date with the same effect as if made on such date, except to the Closing Date, extent such representations and the Company and the Trust have complied in all material respects warranties (i) relate to any matter with all the agreements and satisfied in all material respects all the conditions on either of their part respect to be performed or satisfied which written notice has been given to Agent and/or Lenders by Loan Parties pursuant to and in accordance with the Operative Documents at Credit Agreement or prior to the Closing Date(ii) which by their terms expressly speak as of an earlier date;
(iid) since the date No Default or Event of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)Default shall have occurred and be continuing.
h(e) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel All corporate proceedings taken in connection with the Operative Documents and the transactions contemplated hereby by this Amendment and thereby all documents, instruments and other legal matters incident thereto shall be deemed reasonably satisfactory to be a representation Agent, Lenders and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacitytheir legal counsel.
Appears in 1 contract
Sources: Credit Agreement (Superior Offshore International Inc.)
Conditions. 5.1 e-VideoTV's Conditions. The obligations of e-VideoTV to complete the parties under this Purchase Agreement transactions contemplated hereby are subject to the following conditionsconditions (which are for the exclusive benefit of e-VideoTV) having been satisfied or expressly waived in writing by e- VideoTV on or before the Closing Date or such other date as may be specified in this Section 5.1, and Ziracom will use its commercially reasonable best efforts to ensure that such conditions are fulfilled:
(a) The Ziracom will have delivered the disclosure schedule to this Agreement (the "Disclosure Schedule"). e-VideoTV shall have seven (7) days after its receipt of the Disclosure Schedule to determine, in its sole discretion, if it shall accept the representations and warranties contained herein shall be accurate as modified by the Schedules. If e-VideoTV determines that any part of the date of delivery of Schedules are unacceptable, e-VideoTV may provide Ziracom additional time to remedy the Preferred Securitiesmatter or may terminate this Agreement in accordance with the termination provisions hereunder.
(b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the All representations and warranties of the Guarantor, the Company Shareholders and the Trust Ziracom contained in this Purchase Agreement are shall have been true and correct in all material respects when made on the date of execution of this Agreement, and also at and as of the Closing Date with the same effect as if such representations and warranties were made on at and as of the Closing Date. Ziracom shall furnish e-VideoTV with a certificate, dated the Closing Date and signed on behalf of Ziracom by a duly authorized officer thereof stating the above in such form as e-VideoTV may reasonably request.
(c) Ziracom and the Company Shareholders shall hav performed and the Trust have complied in all material respects with all the agreements agreements, terms and satisfied in all material respects all the conditions on either of their part required by this Agreement to be performed or satisfied pursuant complied with by them, and Ziracom shall deliver a certificate, in form and substance satisfactory to the Operative Documents at or prior e-VideoTV, to that effect, dated the Closing Date;.
(iid) since The Shareholders shall deliver to e- VideoTV the date Ziracom Shares free and clear of any liens, encumbrances and other obligations.
(e) Ziracom shall have no contingent or other liabilities connected with its business, except as disclosed in its financial statements. The review of the Interim Financial Statements business, premises and operations of Ziracom and the financial statements by e-VideoTV at its expense shall not have revealed any matter which, in the commercially reasonable judgment of e-VideoTV, makes the transaction on the terms herein set forth inadvisable for e-VideoTV.
(as defined below)f) There shall exist no injunction or final judgment, there has law or regulation prohibiting the consummation of the transactions contemplated by this Agreement. Any required governmental or regulatory consents shall have been no obtained.
(g) There shall not have occurred any material adverse change in the assets, business, condition (financial or other), earnings, business or assets prospects of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)Ziracom.
(h) The Guarantor and the Company Ziracom shall have executed the Parent Guarantee Agreement and delivered same provided, to The Bank of New York Trust Companye- VideoTV's full satisfaction, National Association, evidence that Ziracom's technology performs both as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when advertised and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given stated to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacitye- VideoTV.
Appears in 1 contract
Conditions. 4.1 The obligations agreements of the parties under Lenders contained in Clause 3.1 of this Purchase First Supplemental Agreement are shall all be expressly subject to the following conditions:
a) The representations and warranties contained herein shall be accurate as of condition that the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser Agent shall have received in form and substance satisfactory to it and its legal advisers on or before on or before the opinion Effective Date:
(a) evidence that the persons executing this First Supplemental Agreement on behalf of the Borrower and the Existing Owners are duly authorised to execute the same;
(b) a certificate of an officer of the New Owner confirming the names of all its directors and shareholders and having attached thereto true and complete copies of its incorporation and constitutional documents;
(c) true and complete copy of the resolution passed at a meeting of the directors of the Borrower authorising and approving the execution of this First Supplemental Agreement, each New Finance Document to which it is a party and any other document or action to which it is or is to be a party and authorising its directors or other representatives to execute the same on its behalf;
(d) true and complete copies of the resolutions passed at separate meetings of the sole director and shareholders of the New Owner and each Existing Owner authorising and approving the execution of the New Finance Documents to which each is a party or, as the case may be, this First Supplemental Agreement and the relevant Mortgage Addendum and any other document or action to which each is or is to be a party and authorising its sole director or other representatives to execute the same on its behalf;
(e) the original of any power of attorney issued by the Borrower, the New Owner and each Existing Owner pursuant to such resolutions aforesaid;
(f) the fees referred to in Clause 7.2 of this First Supplemental Agreement have been received in full by the Agent;
(g) evidence that “ALPHA” is:
(i) registered in the name of the New Owner under the laws and flag of the ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for Islands; and
(ii) insured in accordance with the Delaware Trustee, dated relevant provisions of the Closing Date, addressed New Mortgage and all requirements thereof in respect of such insurances have been fulfilled;
(h) each New Finance Document and each Mortgage Addendum has been duly executed (and of each document to be delivered under each of them) by the Purchaser, The Bank of New York Trust Company, National AssociationBorrower, the Delaware Trustee and New Owner or, as the Companycase may be, the relevant Existing Owner together with evidence that:
(i) the New Mortgage has been registered against “ALPHA” with first priority in substantially accordance with the form set out in Annex C hereto.
e) The Purchaser shall have received laws of the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇ Islands;
(ii) each Mortgage Addendum has been duly registered as an addendum to the Mortgage to which it relates in accordance with the laws of the ▇, ▇▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel Islands;
(iii) all notices required to be served under each New General Assignment and any New Charterparty Assignment have been served and acknowledged in the manner therein provided; and
(iv) save for the Delaware Trustee, dated the Closing Date, addressed Security Interests created by or pursuant to the Purchaser New Mortgage, the New General Assignment and The Bank any Charterparty Assignment, there are no Security Interests of New York Trust Companyany kind whatsoever on “ALPHA” or her Earnings, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President Insurances or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:Requisition Compensation;
(i) the representations and warranties a certified true copy of the Guarantor, the Company and the Trust Initial Charterparty entered into in this Purchase Agreement are true and correct in all material respects on and as respect of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date ALPHA” duly signed by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.parties thereof;
Appears in 1 contract
Sources: First Supplemental Agreement (Star Bulk Carriers Corp.)
Conditions. The obligations This Amendment shall become effective on the date (the "AMENDMENT EFFECTIVE DATE") as of which each of the parties under following conditions precedent shall have been satisfied in a manner satisfactory to the Bank:
(a) The Bank shall have received the following documents, each in form and substance satisfactory to the Bank:
(i) this Purchase Agreement Amendment, duly executed by the Borrowers;
(ii) the Fourth Amended and Restated Revolving A Note, dated the Amendment Effective Date, in substantially the form attached hereto as ANNEX B, made by the Borrowers to the order of the Bank and in the original principal amount of $65,000,000 (the "NEW NOTE"); and
(iii) Federal Reserve Form U-1 provided for in Regulation U issued by the Board of Governors of the Federal Reserve System, the statements made in which shall be such, in the opinion of the Bank, as to permit the transactions contemplated hereby in accordance with such Regulation;
(iv) UCC Financing Statement Amendment, amending Schedule A to UCC-1 Financing Statement to reflect the pledge by the Pledgor of the Additional Collateral;
(v) certified copies of requests for copies or information on Form UCC-11 or other recent UCC search results, listing all effective financing statements which name a Borrower as debtor, together with search results with respect to judgment and tax liens searches and copies of such financing statements and any other lien, none of which, except as otherwise agreed to in writing by the Bank, shall cover any of the Collateral;
(vi) the original stock certificates representing 100% of the Pledged Shares that are not subject to the following conditions:BA Control Agreement and 15 undated stock powers executed in blank and other proper instruments of transfer for the stock certificates pledged by the Pledgor to the Bank;
a(vii) The representations and warranties contained herein shall be accurate as an issuer's letter from Triarc with respect to the pledge of the date Pledged Shares by the Pledgor;
(viii) an irrevocable letter, duly executed by the Pledgor, authorizing the payment of delivery all dividends payable on the Pledged Shares directly to the Bank without further consent from the Pledgor;
(ix) a certified copy of each Registration Rights Agreement, if any, together with any consent from Triarc that the Bank may reasonably require in order to enjoy the benefits of any Registration Rights Agreement in respect of the Preferred Securities.Pledged Shares;
b(x) Winston a restricted securities statement, duly executed by the Pledgor;
(xi) an opinion, dated the Amendment Effective Date, of the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel to the Borrowers, ▇▇ form and substanc▇ ▇▇▇▇▇nab▇▇ LLP▇▇▇▇▇factory to the Bank and its counsel;
(xii) the BA Control Agreement, counsel for duly executed by the GuarantorSecurities Intermediary, the Company Bank and the Trust Pledgor; and
(the “Company Counsel”)xiii) such other agreements, shall have delivered an opinioninstruments, dated the Closing Date, addressed to the Purchaser opinions and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. Bank may reasonably request.
(b) The Company Counsel may specify Bank shall have received all fees and other amounts due and payable to the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinionsBank, including, without limitation, the Legal Opinion Accord Commitment Fee referred to in Section 4 hereof and all legal fees, costs and expenses of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished Bank in connection with the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLPCredit Agreement, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee this Amendment and the Company, in substantially the form set out in Annex C heretoother related agreements and documents.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the The representations and warranties by each Borrower contained in this Section 5 of this Amendment and in Article IV of the GuarantorCredit Agreement, as amended hereby, and of each Loan Party in each other Loan Document and certificate or other writing delivered to the Company and Bank pursuant hereto or thereto on or prior to the Trust in this Purchase Agreement date hereof are true and correct in all material respects on and as of the Closing Date with the same effect such date as if though made on the Closing Dateand as of such date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant except to the Operative Documents at or prior extent that any such representation and warranty expressly relates solely to the Closing Date;
an earlier date (in which case such representation and warranty shall be true and correct on and as of such earlier date); (ii) no Event of Default or Default has occurred and is continuing or would result from the effectiveness of this Amendment; and (iii) since the date of the Interim Financial Statements (as defined below)Credit Agreement, there has been no material adverse change in the operations, condition (financial or otherotherwise), earningsbusiness, business assets, income or assets prospects of the Guarantorsuch Borrower has occurred and is continuing, the Company or their subsidiaries taken except as a whole, whether or not arising from transactions occurring previously disclosed in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior writing to the Closing Date, the Guarantor, the Company Bank and the Trust shall have furnished consented to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date writing by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityBank.
Appears in 1 contract
Sources: Pledge and Security Agreement (Triarc Companies Inc)
Conditions. The obligations of the parties under this Purchase Agreement are subject to the following conditions:
a) The representations and warranties contained herein This Amendment shall be accurate become effective as of the date of delivery Amendment Effective Date upon the satisfaction of the Preferred Securities.following conditions precedent:
b(a) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company this Amendment and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Companyall related documents, as applicable, signed shall have been duly executed and delivered by the Chief Executive OfficerBorrowers, President or an Executive Vice Presidenteach Obligor, the Required Lenders, the Agent and each other party thereto, as applicable, and Chief Financial Officershall be in full force and effect; and
(b) all corporate action necessary for the valid execution, Treasurer or Assistant Treasurer delivery and performance by the Borrowers of this Amendment and each of the Companyrelated documents to which it is or is to become a party, shall have been duly and effectively taken, and evidence thereof reasonably satisfactory to the Trust Agent shall have furnished been provided to the Purchaser Agent.
(c) Agent shall have received a certificate of the Trusta duly authorized officer of each Borrower (with such certification to be in such Person’s capacity as an officer of such Borrower and not in such Person’s individual capacity), signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to certifying (i) that attached copies of such Borrower’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown, (ii) below and, in the case that an attached copy of resolutions authorizing execution and delivery of the TrustAmendment is true and complete, as and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility, and (iiii) below:to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Borrower in writing.
(id) the representations and warranties Agent shall have received copies of the Guarantorcharter documents of each Borrower, certified as appropriate by the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as Secretary of the Closing Date State or another official of such Borrower’s jurisdiction of organization, or with the same effect as if made on the Closing Daterespect to one or more Borrowers, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either a certificate of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date a duly authorized officer of the Interim Financial Statements (as defined below), such Borrower specifying that there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising such Borrower’s charter documents from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior those attached to the Closing DateSecretary’s Certificate for such Borrower dated as of March 6, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company 2006 and delivered to the Purchaser or the Purchaser’s counsel Agent in connection with the Operative Documents and the transactions contemplated hereby and thereby Loan Agreement. Agent shall be deemed to be a representation and warranty of the Trust and/or the Guarantor have received good standing or the Companysubsistence certificates, as applicable, for each Borrower, issued by the case may be, and not by Secretary of State or other appropriate official of such trustee or officer in any individual capacityBorrower’s jurisdiction of organization.
Appears in 1 contract
Conditions. The obligations obligation of FMS to consummate the parties under this Purchase Agreement are Transaction on the Closing Date is subject to the following conditions:
a) The representations and warranties contained herein shall be accurate as satisfaction of the date following conditions (any or all of delivery which may be waived by FMS, at the sole option of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLPFMS, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed in whole or in part to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed extent permitted by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:applicable law):
(i) each of the representations and warranties of the Guarantoreach of HOLL, the Company Baseline and the Trust in this Purchase Agreement are Newco contained herein shall be true and correct in ▇▇ all material respects on and as of the Closing Date with the same force and effect as if though the same had been made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either as of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since Each of HOLL, Baseline and Newco shall have performed and complied, ▇▇ all material respects, with the covenants and provisions of this Agreement required to be performed or complied with by it between the date hereof and the Closing Date;
(iii) FMS shall have received from each of HOLL, Baseline and Newco a certificate to the effect set f▇▇▇▇ in clauses (i) and (ii) above, dated the Closing Date and signed by a duly authorized officer of such parties;
(iv) FMS shall have received a certificate of the Interim Financial Statements Secretary of each of HOLL, Baseline and Newco, dated the Closing Date, setting forth resolutions of the Board of Directors of each or such parties authorizing the execution and delivery of this Agreement and each document and instrument required to be executed and delivered by such parties hereunder and the consummation of the transactions contemplated hereby and thereby, and certifying that such resolutions were duly adopted and have not been rescinded or amended as of the Closing Date;
(as defined below)A) no Legal Proceeding shall have been instituted or threatened or claim or demand made against HOLL or Baseline seeking to restrain or prohibit or to obt▇▇▇ damages with respect to the consummation of the transactions contemplated by this Agreement, there has been no or which might, in the reasonable opinion of FMS, result in a material adverse change in the business, assets, properties, liabilities, financial condition or results of operations of Baseline and (financial B) there shall not be in effect any Order of a Government Body of competent jurisdiction restraining, enjoining or other), earnings, business or assets otherwise prohibiting the consummation of the Guarantortransactions contemplated by this Agreement;
(vi) Each of HOLL, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor Baseline and the Company Newco shall have executed the Parent Guarantee Agreement and delivered same ▇▇ FMS (A) all documents to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to be delivered at the Closing Datein accordance with the terms of this Agreement, including, without limitation, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Stock Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, stock certificate representing the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company Purchased Stock and the Trust other agreements and documents with respect thereto and (B) such other documents and instruments as FMS may reasonably request and which each of HOLL, Baseline or Newco can obtain with reasonable commerc▇▇▇ efforts in writing or order to consummate the transactions contemplated by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company this Agreement; and
(vii) Baseline shall have executed and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents each of Rafi Gordon, Alex Amin, Yash Dhillon and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityLauren Boudreau employment ▇gr▇▇▇▇▇▇▇ ▇n ▇▇▇ ▇▇▇▇ ▇▇ Exhib▇▇ ▇-▇ ▇▇▇ ▇-▇ hereto.
Appears in 1 contract
Sources: Transfer and Shareholders Agreement (Hollywood Media Corp)
Conditions. 4.1 The obligations agreement of the parties under Creditor Parties contained in Clause 3.1 of this Purchase Third Supplemental Agreement are shall be subject to the following conditions:
a) The representations and warranties contained herein shall be accurate as of condition that the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser Creditor Parties shall have received in form and substance satisfactory to the opinion Security Trustee on behalf of the Lenders and their legal advisers on or before the signature hereof:
(a) a certificate of a Director of the Borrower confirming the names and offices of all the Directors and/or Officers of the Borrower, and confirming that the Borrower's incorporation and constitutional documents have not been altered or amended since 23 March 2009;
(b) true and complete copies of the resolutions passed at a meeting of the Board of Directors of the Borrower, authorising and approving the execution of this Third Supplemental Agreement and any other document or action to which the Borrower is a party, and authorising its appropriate officer or officers or other representatives to execute the same on its behalf;
(c) the original of any power of attorney issued by the Borrower pursuant to such resolutions aforesaid;
(d) true and complete copies of the resolutions passed at a meeting of the Board of Directors of the Corporate Guarantor, authorising and approving the execution of the Third Mortgage Addendum and any other document or action to which the Corporate Guarantor is a party, and authorising its appropriate officer or officers or other representatives to execute the same on its behalf;
(e) the original of any power of attorney issued by the Corporate Guarantor pursuant to such resolutions aforesaid;
(f) certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action, approvals or consents with respect to this Third Supplemental Agreement and the Third Mortgage Addendum (including without limitation) all necessary governmental and other official approvals and consents in such pertinent jurisdictions as the Security Trustee deems appropriate;
(g) a duly executed original of this Third Supplemental Agreement and the Third Mortgage Addendum, together with evidence that the Third Mortgage Addendum has been duly registered against the Ship in accordance with the laws of the Republic of The ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for Islands;
(h) such legal opinions as the Delaware Trustee, dated Security Trustee may require in respect of the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee matters contained in this Third Supplemental Agreement and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:Third Mortgage Addendum;
(i) a duly executed confirmation from each Security Party in the representations and warranties form of Schedule 3 hereto, confirming that (notwithstanding the Guarantor, amendments made to the Company and the Trust in this Purchase Loan Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to this Agreement) the Operative Finance Documents at or prior to the Closing Datewhich it is a party and its obligations thereunder remain valid and binding;
(iij) since receipt by the Lenders of the sum of $4,000,000 by way of prepayment of the Loan, to be applied in accordance with Clause 8 of the Loan Agreement; and
(k) receipt by the Lenders of the expenses referred to in Clause 7.1.
4.2 The agreement of the Creditor Parties contained in Clause 3.1 of this Third Supplemental Agreement shall be further subject to the condition that the Creditor Parties shall receive evidence satisfactory to the Agent of the agreement of the relevant banks and financial institutions to similar amendments (as set out in Clause 5 hereof) to the other loan facilities currently in place with Paragon Shipping Inc. as borrower within 90 days from the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)this Third Supplemental Agreement.
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations effectiveness of the parties under transactions set forth in Section 3 of this Purchase Agreement are shall be subject to the satisfaction (or waiver by the applicable beneficiary thereof) of the following conditionsconditions precedent:
(a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
bAgent (or its counsel) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) belowreceived:
(i) from the representations and warranties Borrower, either a counterpart of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects signed on and as behalf of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed such party or satisfied pursuant written evidence satisfactory to the Operative Documents at Agent (which may include facsimile or prior to the Closing Dateother electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) since the date from each of the Interim Financial Statements Borrower and the Guarantors, either a counterpart of the Security Agreement Reaffirmation and the Guaranty Reaffirmation, signed on behalf of such party or written evidence satisfactory to the Agent (which may include facsimile or other electronic transmission of a signed signature page of such agreements) that such party has signed a counterpart of such agreements;
(iii) from the Required Lenders, the Required Revolving Lenders and the Required Term A Lenders under the Existing Credit Agreement, a duly completed Lender Election signed on behalf of such party or written evidence satisfactory to the Agent (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a duly completed Lender Election;
(b) The Agent shall have received from the Borrower an amount equal to $523,231.80, representing the aggregate amount owing of all accrued and unpaid fees and other amounts owing to all Lenders, which amount the Agent is irrevocably authorized to distribute to the Lenders in like funds as defined belowreceived;
(c) The Agent shall have received a fee on behalf of each Continuing Lender (including the Agent), there has been no material adverse change which fee shall be in the condition (financial or other), earnings, business or assets an amount equal to 1.00% of the Guarantoramount that such Continuing Lender’s aggregate Commitment would be under the Amended Credit Agreement (after giving effect to the repayment and Commitment reductions contemplated hereunder); provided that if such Continuing Lender’s Commitment under the Amended Credit Agreement shall be greater than its Revolving Credit Commitment under the Existing Credit Agreement, each such Lender shall be entitled to an additional fee in an amount equal to 1.50% of the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course amount of business such increase;
(a “Material Adverse Change”).
hd) The Guarantor and aggregate Commitments of the Company Continuing Lenders shall be an amount that is acceptable to the Borrower in its discretion;
(e) The conditions set forth in Section 4.01 of the Amended Credit Agreement shall have executed the Parent Guarantee Agreement been satisfied; and
(f) The Agent shall have received all fees and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior other amounts due and payable on or prior to the Closing Effective Date, the Guarantorincluding, the Company and the Trust shall have furnished to the Purchaser extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Loan Documents; whereupon the “Effective Date” shall be deemed to have occurred. For the avoidance of doubt, (A) the fee referred to in clause (c) above shall be paid by the Agent to the Continuing Lenders promptly after, and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date Effective Date, and (B) the amount referred to in clause (b) above shall be paid by the Purchaser. Notice of such cancellation shall be given Agent to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may beWithdrawing Lenders promptly after, and not by prior to, the Effective Date, in such trustee or officer in any individual capacityproportions as reflect such Withdrawing Lenders’ respective pro rata entitlements thereto. The Agent shall notify the Borrower and the Lenders of the Effective Date, and, subject to the foregoing paragraph, such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Commitment Reduction and Amendment and Restatement Agreement (McClatchy Co)
Conditions. The obligations This Amendment shall become effective on the date each of the parties under this Purchase Agreement are subject to following conditions have been met (such date, the following conditions:“Amendment Effective Date”):
(a) The representations this Amendment shall have been executed and warranties contained herein shall be accurate as of delivered by Agent, the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇▇ LLP, counsel for identified on the Guarantorsignature pages hereof, the Company Voting Participant(s) identified on the signature pages hereof, and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for and acknowledged by the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.Guarantor(s);
e(b) The Purchaser Agent shall have received that certain Omnibus Amendment and Reaffirmation Agreement dated as of the opinion of Gardere date hereof (the “Omnibus Amendment”), duly executed by ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, Guarantors, and Agent, in form and substance reasonably satisfactory to Agent;
(c) Agent shall have received that certain Patent Security Agreement dated as of the date hereof, duly executed by each of the Grantors identified on the signature pages thereof, in form and substance reasonably satisfactory to Agent;
(d) Agent shall have received that certain Trademark Security Agreement dated as of the date hereof, duly executed by each of the Grantors identified on the signature pages thereof, in form and substance reasonably satisfactory to Agent;
(e) Agent shall have received (i) a duly-executed copy of that certain fee letter, dated as of the date hereof (the “Eighth Amendment Fee Letter”), among Borrowers and Agent, in form and substance reasonably satisfactory to Agent, and (ii) payment in immediately available funds of the fees set forth in the Eighth Amendment Fee Letter that are due and payable on the date hereof;
(f) Term Loan Sub-Agent shall have received (i) a duly-executed copy of that certain fee letter, dated as of the date hereof (the “Eighth Amendment Term Loan Sub-Agent Fee Letter”), among Boise Cascade and American AgCredit, PCA, in form and substance reasonably satisfactory to Term Loan Sub-Agent, and (ii) payment in immediately available funds of the fees set forth in the Eighth Amendment Term Loan Sub-Agent Fee Letter that are due and payable on the date hereof;
(g) Agent shall have received a certificate from the Secretary of each Loan Party dated as of the date hereof (i) certifying the resolutions of such Loan Party authorizing its execution, delivery, and performance of this Amendment and the other Loan Documents to which such Loan Party is a party as true, complete, and correct on the date hereof; (ii) authorizing specific officers of such Loan Party to execute this Amendment and the other Loan Documents to which such Loan Party is a party; (iii) attesting to the incumbency and signatures of such specific officers of such Loan Party; and (iv) certifying such Loan Party’s Governing Documents as true, complete, and correct and as (x) in effect on the date hereof and
(y) not having been amended, restated, supplemented, or modified in any respect on the date hereof;
(h) Agent shall have received a certificate of status with respect to each Loan Party, dated within 10 days of the Amendment Effective Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Loan Party, which certificate shall indicate that such Loan Party is in good standing in such jurisdiction;
(i) Agent shall have received certificates of status with respect to each Loan Party, each dated within 30 days of the Amendment Effective Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Loan Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Loan Party is in good standing in such jurisdictions;
(j) Agent shall have received an opinion from ▇▇▇▇▇▇▇ & FingerCoie LLP, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National AssociationLoan Parties, in substantially form and substance reasonably satisfactory to Agent;
(k) Agent shall have received, and be reasonably satisfied with, any documentation and other information requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the form set out in Annex E hereto.
g) Each of the Guarantor Patriot Act and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, Beneficial Ownership Regulation; and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(il) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or At least one Business Day prior to the Closing Amendment Effective Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken any Loan Party that qualifies as a whole, whether or not arising from transactions occurring in “legal entity customer” under the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company Beneficial Ownership Regulation shall have executed the Parent Guarantee Agreement delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party in form and delivered same substance reasonably satisfactory to The Bank of New York Trust Company, National Association, as Guarantee Trusteesuch Lender.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Credit Agreement (BOISE CASCADE Co)
Conditions. The obligations 6.1 Companies agrees to furnish Lender, prior to the initial borrowing under this Agreement, in form and substance to be satisfactory to Lender, with (i) certified copies of resolutions of the parties under this Purchase Agreement board of directors of each Company evidencing approval of the borrowings and transactions contemplated hereunder; (ii) a certificate of good standing from the state of each Company’s incorporation and from the state(s) in which Companies are subject required to be qualified to do business; (iii) an opinion of Companies’ legal counsel; (iv) evidence that after giving effect to the following conditionsinitial Advance under the Revolving Credit Note, Annealing has at least $2,000,000 in borrowing availability thereunder, and (v) such other documents and instruments as Lender may require.
6.2 As security for all indebtedness of Companies to Lender, Companies agree to furnish, execute and deliver to Lender, or cause to be furnished, executed and delivered to Lender, prior to or simultaneously with the initial borrowing hereunder, in form to be satisfactory to Lender and supported by appropriate resolution in certified form authorizing same, the following:
(a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.BCGW Guaranty;
(b) Winston & ▇▇▇▇▇▇ LLP, counsel for Amendments to the Guarantor, the Company Security Agreement and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank Mortgages of New York Trust Company, National Association, Annealing’s property in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇North V▇▇▇▇▇, ▇▇▇▇▇▇ & FingerIndian and Canton, P.A., special Delaware counsel for the Delaware TrusteeOhio, dated the Closing DateNovember 18, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date2003;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
hc) The Guarantor Lansing Mortgage, together with a survey and a commitment for an ALTA loan policy in an amount not less than the Company shall have executed the Parent Guarantee principal amount of Term Loan C, each in form and substance satisfactory to Lender;
(d) Financing Statements required or requested by Lender to perfect all security interests to be conferred upon Lender under this Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior accord Lender a perfected first priority security position under the Uniform Commercial Code (subject only to the Closing Date, the Guarantor, the Company encumbrances permitted hereunder); and
(e) Such other documents or agreements of security and the Trust shall have furnished to the Purchaser appropriate assurances of validity and its counsel such further information, certificates and documents perfected first priority of lien or security interest as the Purchaser or its counsel Lender may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or request at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacitytime.
Appears in 1 contract
Sources: Credit Agreement (Maxco Inc)
Conditions. The obligations of Dealer has entered into this Agreement in reliance upon the parties under this Purchase Agreement are subject to the following conditions:
a) The representations and warranties of the Authority contained herein shall and to be accurate contained in the documents and instruments to be delivered at the Commencement Date, and upon the performance by the Authority of its obligations hereunder, both as of the date of delivery hereof, as of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLPCommencement Date, counsel for and after the Guarantor, Commencement Date during any period of marketing or remarketing the Company and the Trust Designated Notes (the “Company CounselRelevant Times”). Accordingly, the Dealer’s obligations under this Agreement shall have delivered an opinion, dated be subject to the Closing performance by the Authority of its obligations to be performed hereunder and under such documents and instruments at or prior to the Commencement Date, addressed and shall also be subject to the Purchaser receipt by the Dealer of each of the following documents prior to the Commencement Date:
(i) Certified copies of the Indenture, the Issuing and The Bank Paying Agency Agreement, the Agreement, the Master Installment Purchase and each Subordinated Credit Support Instrument securing the Designated Notes;
(ii) Certified copies of New York Trust Companythe resolutions adopted by the City, National Association, in substantially the form set out in Annex A-I hereto Corporation and the Company shall have furnished to Authority authorizing the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinionFifth Supplemental Indenture, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors Issuing and trustees of the GuarantorPaying Agency Agreement, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitationAgreement, the Legal Opinion Accord 2017 Commercial Paper Supplement and each Subordinated Credit Support Instrument, as applicable;
(iii) A copy of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇& ▇▇▇▇ LLP, special counsel for Bond Counsel to the Property Trustee and Authority, delivered in connection with the Indenture Trusteeauthorization of the Designated Notes, together with a reliance letter of Bond Counsel addressed to the Dealer;
(iv) A copy of the opinion(s) dated the Closing DateCommencement Date of McGuireWoods LLP, counsel to the Subordinated Credit Provider, addressed to the PurchaserAuthority and the City with respect to the due authorization, validity and enforceability of the Reimbursement Agreement and the Letter of Credit and to the accuracy of the information included in substantially the form set out in Annex D hereto.
f) Offering Memorandum under the caption “The Purchaser shall have received the opinion Letters of ▇▇▇▇▇▇▇▇Credit and Reimbursement Agreements”, ▇▇▇▇▇▇ & Finger, P.A., special Delaware together with a reliance letter of such counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.Dealer;
g(v) Each A copy of the Guarantor opinions dated the Commencement Date of the City Attorney of the City addressed to the Dealer with respect to the due authorization, validity and enforceability of the Issuing and Paying Agent Agreement, the Reimbursement Agreement, the Indenture, the Master Installment Purchase Agreement and the Company shall have furnished to Agreement by the Purchaser a certificate of City, the Guarantor Corporation and the CompanyAuthority, as applicable, ;
(vi) A certificate dated the Commencement Date signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer a duly authorized officer of the Company, and the Trust shall have furnished Authority to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to effect that (i) and (ii) below and, in the case of the Trust, as to (i) below:
(iA) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement Authority contained herein are true and correct in all material respects on and as of the Closing Commencement Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant Commencement Date except to the Operative Documents at or prior extent that the same relate to any earlier date; (B) the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there Offering Memorandum has been approved; and (C) no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions event specified in this Section 3 shall 3(b) has occurred as to which the Authority has not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all notified the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.Dealer;
Appears in 1 contract
Sources: Dealer Agreement
Conditions. 2.1 The obligations effectiveness of the parties under this Purchase Agreement are Deed is subject to the following conditionsfollowing:
a) 2.1.1 The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed Effective Date occurring by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees later of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since 90 calendar days after the date of the Interim Financial Statements Commitment Letter or 60 calendar days after the date of any vote by Scheme Creditors to approve the Scheme, subject to such vote occurring on or before 75 calendar days after the date of the Commitment Letter;
2.1.2 Delivery to BNY of a copy of the Court order sanctioning the Scheme, the terms of which confirm that an undertaking has been given by the directors of Telewest at the Court hearing to sanction the Scheme that the Scheme will not be made effective unless and until the directors of Telewest are satisfied that TCN and TCN’s senior lenders have entered into the New Bank Documents and that the Recapitalisation Supplemental Deed Effective Date (as such term is defined below), there has been no material adverse change in the condition (financial New Bank Documents) has occurred or other), earnings, business or assets its occurrence is conditional only upon the Effective Date of the Guarantor, Scheme;
2.1.3 Delivery by BNY of a letter of certification to TCN confirming that the Company New Bank Documents are in satisfactory form;
2.1.4 Receipt by BNY of its reasonable costs and expenses (including legal fees) properly incurred up until the date five Business Days before the Effective Date in connection with this Deed or their subsidiaries taken as arising out of negotiations for the settlement of the BNY Claim and the entering into of the Interim Swap Transaction and the New BNY Transaction; and
2.1.5 Delivery by BNY of a whole, whether or not arising from transactions occurring letter of certification to TCN confirming that the form of the New BNY Transaction Confirmation(s) (other than in respect of the ordinary course economic terms of business (a “Material Adverse Change”)the New BNY Transaction) is acceptable to BNY acting reasonably.
h) The Guarantor and 2.2 In the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If event that any of the foregoing conditions specified in this Section 3 shall is not have been fulfilled when and as provided in this Purchase Agreementfulfilled, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby Deed shall be deemed to have had no effect from the date of its execution and the BNY Claim shall be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer reinstated in any individual capacityfull.
Appears in 1 contract
Conditions. The obligations of This Amendment Agreement shall become effective upon the parties under this Purchase Agreement are subject Borrower delivering to the following conditionsAdministrative Agent the following:
(a) The representations ten (10) counterparts of this Amendment Agreement duly executed by the Administrative Agent, the Lenders, the Borrower and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.Subsidiary Guarantors;
(b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President secretary or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer assistant secretary of each of the CompanyBorrower and each Subsidiary Guarantor, in form and the Trust shall have furnished substance satisfactory to the Purchaser a certificate of the TrustAdministrative Agent, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to certifying (i) and (ii) below and, in that the case articles or certificate of incorporation or articles or certificate of organization of the Trust, as to (i) below:
(i) the representations and warranties of the Borrower or such Subsidiary Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, have not been amended since such articles or certificate were delivered on the Effective Date or attaching any amendments thereto since the Effective Date, as each may be certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, (ii) that the bylaws, operating agreement, partnership agreement or other comparable document of the Borrower or such Subsidiary Guarantor, as the case may be, have not been amended since such bylaws, operating agreement, partnership agreement or other comparable document was delivered on the Effective Date, and not that such document has been in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors, managers, general partners or other comparable governing body of the Borrower or such Subsidiary Guarantor, as the case may be, authorizing the execution, delivery and performance of this Amendment Agreement and the amendments contemplated herein, and as to the incumbency and genuineness of the signature of each officer of the Borrower or such Subsidiary Guarantor, as the case may be, executing this Amendment Agreement, and attaching all such copies of the documents described above;
(c) amendments or modifications to the existing Mortgages, in form and substance reasonably satisfactory to the Administrative Agent, dated as of the date hereof and duly executed by the Borrower, a Subsidiary Guarantor and the trustee thereunder, as applicable, together in each case with evidence of recordation thereof;
(d) all fees and expenses payable by the Borrower by reason of this Amendment Agreement;
(e) such other documentation, instruments, consents and agreements as the Administrative Agent shall reasonably request including those described in paragraph 8 of this Amendment Agreement; and
(f) amended and restated or officer in any individual capacityreplacement Revolving Notes for each Revolving Lender whose Revolving Credit Commitment is increasing as a result of this Amendment Agreement and amended and restated or replacement Term Loan A Notes reflecting the re-advance of a portion of the Term Loan A pursuant to this Amendment Agreement.
Appears in 1 contract
Sources: Amendment Agreement (Radiation Therapy Services Inc)
Conditions. The obligations This Amendment shall be effective once each of the parties under this Purchase Agreement are subject following have been delivered to the following conditionsAdministrative Agent:
(a) The representations this Amendment executed by Borrower, Administrative Agent, and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.Lenders;
(b) Winston & the Guarantors’ Consent and Agreement attached to this Amendment executed by Guarantors;
(c) a replacement Revolving Credit Note by Borrower and payable to ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for Bank in the Delaware Trustee, dated the Closing Date, addressed Revolving Committed Amount (after giving effect to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.this Amendment);
g(d) Each of the Guarantor and the Company shall have furnished to the Purchaser a an officer’s certificate of the Guarantor and the CompanyBorrower, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to certifying that (i) the resolutions of the Board of Directors of Borrower and each other Loan Party that is a legal entity approving the transactions contemplated by the Credit Agreement adopted by the Board of Directors electronically and certified by the Secretary of Borrower on February 28, 2020 are still in full force and effect and have not been repealed, amended or changed, (ii) below andthe incumbency certificate of Borrower and each other Loan Party that is a legal entity has not changed since February 28, in the case of the Trust2020, as to (i) below:
(iiii) the representations and warranties of the Guarantor, the Company and the Trust each Loan Party set forth in this Purchase Agreement each Loan Document to which it is a party are true and correct in all material respects on and as of the Closing Seventh Amendment Effective Date and (iv) after giving effect to this Amendment, no Default has occurred and is continuing;
(e) a Security Agreement by Borrower in favor of Administrative Agent (or a written amendment to a previously executed and presently effective Security Agreement by Borrower in favor or Administrative Agent) covering the account(s) with Administrative Agent and Cash Collateral contained therein to satisfy the same effect Cash Collateralization Requirement with evidence that Borrower has satisfied the Cash Collateralization Requirement for LCs that are issued and outstanding on and as if made on of the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Seventh Amendment Effective Date;
(iif) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and other documents as the Purchaser or its counsel Administrative Agent may reasonably request. If any ; and
(g) payment by Borrower of the conditions specified in this Section 3 shall not have been fulfilled when all agreed fees and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice expenses of such cancellation shall be given to the Company Administrative Agent and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel Lenders in connection with the Operative Documents this Amendment and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityhereby.
Appears in 1 contract
Conditions. The obligations Notwithstanding anything to the contrary contained elsewhere in the Agreement, the obligation of the parties under Lender to amend the “Termination Date” as set forth in subsection 1.2 of the 2001 Loan Agreement, as contemplated by this Purchase Agreement are subject to the following conditions:
a) The representations and warranties contained herein Fifth Amendment, shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and the performance by the Borrower prior to the date on which this Fifth Amendment is completely executed (the “Amendment Closing Date”) of all of its agreements theretofore to be performed under the Agreement, (ii) below the representations and warranties herein being true, correct and complete in all respects, and (iii) the satisfaction of the following conditions precedent. The obligations to continue to make Advances under the Revolving Loan and Term Loan shall remain subject to the conditions precedent in the 2001 Loan Agreement and to the receipt by the Lender of all the following in form and substance satisfactory to the Lender and its counsel, and, in where appropriate, duly executed and dated the case of the Trust, as to (i) belowAmendment Closing Date:
(i) copies, certified by the representations and warranties Secretary of Parent, of the Guarantor(a) resolutions duly adopted by the Board of Directors of Parent authorizing the execution, delivery and performance of this Fifth Amendment and any other documents to be delivered pursuant hereto (the Company and “Amendment-Related Documents”) to be executed by the Trust in this Purchase Agreement are true and correct in all material respects on and as Parent, (b) the Bylaws of the Closing Date with the same effect Parent as if made on the Closing Datecurrently in effect, and (c) the Company and Charter of the Trust have complied Parent as currently in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Dateeffect;
(ii) since copies, certified by the date Secretary of the Interim Financial Statements (as defined below)Borrower, there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor(a) resolutions duly adopted by the Board of Directors of Borrower authorizing the execution, delivery and performance of this Fifth Amendment and any Amendment-Related Documents to be executed by the Company or their subsidiaries taken as a wholeBorrower, whether or not arising from transactions occurring in (b) the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any Bylaws of the conditions specified Borrower as currently in this Section 3 shall not have been fulfilled when effect, and as provided in this Purchase Agreement, this Purchase Agreement and all (c) the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee Charter of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel Borrower as currently in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be effect; and
(iii) a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacitySignature Authorization Certificate.
Appears in 1 contract
Sources: Loan Agreement (BankFinancial CORP)
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are First Amendment is subject to the following conditions:
a) The representations and warranties contained herein shall be accurate as satisfaction of the following conditions precedent (the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantoron which such effectiveness occurs, the Company and the Trust (the “Company CounselFirst Amendment Effective Date”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).):
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser a. Agent shall have received each of the following documents, in form and substance reasonably satisfactory to Agent, duly executed and delivered, and each such document shall be in full force and effect:
(i) this First Amendment duly executed by the Borrower, the Guarantors, Agent and the Lenders;
(ii) the Agent Supplemental Fee Letter and the TPG Supplemental Fee Letter;
(iii) if requested by any Lender in writing (it being agreed that any such writing s hall be acceptable if provided in electronic mail form) at least two (2) Business Days prior to the First Amendment Effective Date, a Term Note reflecting such Lender’s Supplemental Term Loan Commitment;
(iv) a solvency certificate from the chief financial officer or treasurer of Borrower, certifying that, after giving effect to the extensions of credit on the First Amendment Effective Date and the consummation of the One Place Acquisition, the Loan Parties taken as a whole are Solvent;
(v) a payment direction letter, attaching a flow of funds thereto, delivered by the Loan Parties, regarding the extensions of credit to be made on the First Amendment Effective Date;
(vi) a notice of borrowing in respect of the Supplemental Term Loan, duly executed and delivered to Agent and substantially in the form of a Notice of Advance; and
(vii) all documentation and other information required by Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations. Including the Patriot Act, in each case, as requested by Agent or any Lender at least five (5) Business Days prior to the First Amendment Effective Date.
b. Agent shall have received each of the following:
(i) a certificate from the Secretary or Assistant Secretary of each Loan Party (A) attesting to the resolutions of such Loan Party’s Board of Directors authorizing its execution, delivery, and performance of the First Amendment and, in the case of Borrower, the Agent Supplemental Fee Letter and the TPG Supplemental Fee Letter, (B) authorizing specific officers of such Loan Party to execute the same, and (C) attesting to the incumbency and signatures of such specific officers of such Loan Party;
(ii) copies of each Loan Party’s Governing Documents, as amended, modified, or supplemented to the First Amendment Effective Date, certified by the Secretary of such Loan Party;
(iii) a certificate of status with respect to each Loan Party, indicating that such Loan Party is in good standing (or, if such jurisdiction does not provide for good standing status, the equivalent status provided for in such jurisdiction) in the jurisdiction of organization of such Loan Party (each dated as of a recent date prior to the First Amendment Effective Date); and
(iv) U.S. judgment and UCC lien searches on the OnePlace Entity (as defined in the One Place Acquisition Agreement);
c. Agent shall have received an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇& ▇▇▇▇▇▇, ▇▇▇▇▇▇ & FingerP.A. in form and substance reasonably satisfactory to Agent;
d. the truth and accuracy of the representations and warranties contained in Section 4 hereof;
e. Agent shall have received a certificate from the chief financial officer of Parent demonstrating that, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed after giving effect to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each incurrence of the Guarantor Supplemental Term Loan on the date hereof and the Company shall have furnished to the Purchaser a certificate consummation of the Guarantor and the CompanyOne Place Acquisition, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) the Recurring Revenue Leverage Ratio (for purposes hereof the Recurring Revenue Leverage Ratio shall be calculated on a pro forma basis based on (x) the amount of Total Indebtedness as of the date hereof and (y) Recurring Revenue of Parent and its Subsidiaries (including OnePlace Holdings Pte. Ltd. and its Subsidiaries) for the three (3) consecutive month period ended as of March 31, 2019 multiplied by four (4)) shall not exceed 2.25:1.00 and (ii) below andthe Loan Parties shall have Liquidity, in the case calculated on a pro forma basis, of at least $19,000,000;
f. Agent shall have received true, correct and complete copies of the Trustexecuted One Place Acquisition Documents;
g. no Advances shall be outstanding on the First Amendment Effective Date after giving effect to the funding of the Supplemental Term Loan and the other transactions to occur on the First Amendment Effective Date;
h. there shall have been paid (or substantially concurrent with the effectiveness hereof will be paid) to Agent, as to for its own account (or the account of its designees), (i) below:all fees that are required to be paid on the First Amendment Effective Date pursuant to the Fee Letters and (ii) all Lender Group Expenses incurred in connection with the transactions evidenced by this First Amendment to the extent an invoice therefor shall have been provided to the Borrower one (1) Business Day prior to the First Amendment Effective Date; and
(i) i. the representations and warranties One Place Acquisition shall have been or, substantially concurrently with the funding of the Guarantorentire amount of the Supplemental Term Loan on the First Amendment Effective Date shall be, the Company and the Trust in this Purchase Agreement are true and correct consummated in all material respects on and as in accordance with the terms of the Closing Date with the same One Place Acquisition Agreement (without giving effect as if made on the Closing Dateto any amendment, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either modification or waiver by Borrower of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may provisions thereof that would be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given materially adverse to the Company and Lenders without the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee consent of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed Agent, such consent not to be a representation and warranty of the Trust and/or the Guarantor unreasonably withheld, conditions or the Company, as the case may be, and not by such trustee or officer in any individual capacitydelayed).
Appears in 1 contract
Sources: Credit Agreement (Intapp, Inc.)
Conditions. The obligations Notwithstanding anything to the contrary contained elsewhere in the Agreement, the obligation of Lender to extend the parties under Revolving Loan Maturity Date, increase the Revolving Loan Amount, eliminate certain financial covenants and otherwise modify the 2002 Loan Agreement as contemplated by this Purchase Agreement are Fourth Amendment shall be subject to the performance by the Borrower prior to the date on which this Fourth Amendment is executed (the "Amendment Closing Date") of all of its agreements theretofore to be performed under the Agreement and to the satisfaction of the following conditions:
conditions precedent. The obligations to continue to make disbursements of proceeds under the Loans are, and shall remain, subject to the conditions precedent in the 2002 Loan Agreement and to the receipt by the Lender of all the following in form and substance satisfactory to the Lender and its counsel, and, where appropriate, duly executed and dated the Amendment Closing Date: a certificate of good standing of the Borrower, certified by the appropriate governmental official in its jurisdiction of incorporation and dated within the five business days preceding the date hereof; copies, certified by the Secretary or Assistant Secretary of the Borrower, of the (a) The representations and warranties contained herein shall be accurate as resolutions duly adopted by the board of directors of the date Borrower authorizing the execution, delivery and performance of delivery this Fourth Amendment and the other documents to be delivered by the Borrower pursuant to this Fourth Amendment (the "Amendment-Related Documents"), and (b) the Bylaws of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLPBorrower as currently in effect; the restated Revolving Note for the benefit of Lender, in the form of Exhibit A attached hereto; a written opinion of counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing DateBorrower, addressed to the Purchaser and The Bank of New York Trust CompanyLender, National Association, substantially in substantially the form set out in Annex A-I hereto of Exhibit B attached hereto; and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents documents, agreements or instruments as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel Lender may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Loan and Subordinated Debenture Purchase Agreement (Taylor Capital Group Inc)
Conditions. The obligations of the parties under this Purchase Agreement are subject In addition to any other conditions to the following conditions:
a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form Loan set out in Annex A-I hereto and the Company this Agreement, PFG will not make any Loan until PFG shall have furnished received from Borrower, in form and substance reasonably satisfactory to PFG, such documents, and completion of such other matters, as PFG may reasonably deem necessary or appropriate, including that there shall be no discovery of any facts or circumstances which would, as determined by PFG in its good faith business judgment, materially negatively affect or be reasonably expected to materially negatively affect the collectability of the Obligations, PFG’s security interest in Borrower’s Collateral or the value thereof. Notwithstanding the foregoing, Borrower agrees to deliver to PFG each item required to be delivered to PFG under this Agreement as a condition precedent to any Loan. Borrower expressly agrees that a Loan made prior to the Purchaser a certificate signed receipt by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies PFG of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion item shall not state that they are constitute a waiver by PFG of Borrower’s obligation to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Companydeliver such item, and the Trust making of any Loan in the absence of a required item shall have furnished be in PFG’s sole discretion. Without limiting the foregoing, as conditions precedent to the Purchaser a certificate of the TrustLoan, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) belowBorrower shall provide:
(i) the representations duly executed original signatures of Borrower and warranties of the GuarantorGuarantor to this Agreement, the Company Intellectual Property Security Agreement and related Collateral Agreements and Notices, share charges in respect of shares in the Trust Borrower, a deed of guarantee executed in this Purchase Agreement are true favor of PFG by Guarantor; and correct debentures (incorporating fixed and floating charges) in all material respects on and as favor of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing DatePFG executed by Guarantor;
(ii) since a Certificate for Borrower and Guarantor signed by a Responsible Officer (in the case of Borrower) or a Person authorized to lawfully act on behalf of Guarantor (in the case of Guarantor) in respect of obligations such as the Guaranty, appending copies of (A) its Constitutional Documents, (B) its register of members, (C) its register of charges, and (D) the written resolutions or minutes of its board of directors authorizing the execution, delivery and performance of the Loan Documents to which such Borrower is a party and authorizing the Responsible Officer(s), and certifying that such documents are true, correct and in full force and effect on the date of this Agreement;
(iii) Any Control Agreements as required by Section 8(b) of this Schedule, duly executed by Borrower and each relevant depositary institution in favor of PFG;
(iv) to the Interim Financial Statements (extent reasonably practicable, certified copies, dated as defined below)of a recent date, there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National AssociationSecurity Instrument searches, as Guarantee Trustee.
iPFG shall request, accompanied by written evidence (including any UCC termination statements) Prior to that the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel Liens indicated in any such further information, certificates and documents as the Purchaser Security Instruments either constitute Permitted Liens or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreementor, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents Loan, will be terminated or released;
(v) the Representations, duly executed by Borrower on behalf of Borrower and each Guarantor;
(vi) the insurance policies and/or endorsements required pursuant to Section 4.3;
(vii) payment of the payable Fees specified in Section 3 of this Schedule and Lender Expenses incurred in connection with the Loan;
(viii) any third party consents required in order for Borrower to enter into and perform the Loan Documents;
(ix) the Senior Subordination Agreement, in agreed form between PFG and the transactions contemplated hereby Senior Lender;
(x) subordination agreements in favor of PFG from holders of Indebtedness;
(xi) the PFG Warrant, in agreed form;
(xii) execution and thereby shall be deemed to be a representation and warranty delivery of the Trust and/or Cayman Security Documents;
(xiii) execution and delivery of the Guarantor Hong Kong Security Documents;
(xiv) execution, delivery of all other Security Instruments contemplated under the Cayman Security Documents or Hong Kong Security Documents; and
(xv) to the Companyextent that the conditions to this Agreement have not been completed as of the Effective Date, a post-closing obligations letter in PFG’s customary form by which PFG waives or defers performance of such conditions as the case may be, and not by such trustee or officer PFG is willing to defer in any individual capacityits sole business discretion.
Appears in 1 contract
Sources: Loan and Security Agreement (Borqs Technologies, Inc.)
Conditions. The obligations of This Agreement and the parties under this Purchase Amended Credit Agreement are subject to the following conditions:
a) The representations and warranties contained herein shall be accurate as of become effective on the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company CounselFirst Amendment Effective Date”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees ) on which all of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall following conditions precedent have been furnished satisfied or waived:
(a) the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser Administrative Agent shall have received this Agreement, duly executed and delivered by a duly authorized officer of each of (A) the opinion of ▇▇▇▇▇▇▇▇Borrower, ▇▇▇▇▇▇ & Finger(B) the Administrative Agent, P.A.(C) the Issuing Lenders, special Delaware counsel for (D) the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the CompanyRevolving Lenders (which, in substantially the case of this clause (D), may take the form set out in Annex C hereto.
e) The Purchaser shall have received of the opinion of Gardere Revolving ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇) and (E) the Term Lenders party hereto (it being understood that, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed immediately after giving effect to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor Revolving Facility and the Company New Revolving Facility Increase, the New Revolving Lenders and the Term Lenders party hereto shall constitute the Required Lenders);
(b) the Borrower shall have furnished paid, or caused to have been paid, to the Purchaser a certificate of First Amendment Arrangers, the Guarantor Administrative Agent and the CompanyNew Revolving Lenders, as applicable, signed by the Chief Executive Officer, President all fees and other amounts due and payable on or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished prior to the Purchaser a certificate date hereof, including, without limitation, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder, under any Loan Document or as otherwise mutually agreed prior to the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing First Amendment Effective Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:;
(ic) the representations and warranties of the GuarantorBorrower set forth in the Amended Credit Agreement, and of each Loan Party in each of the Company and the Trust in this Purchase Agreement are Loan Documents to which it is a party, shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such qualification) on and as of the Closing Date with the same effect as if made on the Closing First Amendment Effective Date, ; provided that any representation and the Company warranty that expressly relates to a given date shall be true and the Trust have complied correct in all material respects with all as of such given date; provided, further, that the agreements representations and satisfied warranties contained in all material respects all Section 4.04(a) of the conditions on either of their part Amended Credit Agreement shall be deemed to refer to the most recent annual and quarterly financial statements required to be performed or satisfied delivered pursuant to Section 6.01 of the Operative Documents at or prior to the Closing DateAmended Credit Agreement;
(iid) since no Default shall have occurred and be continuing;
(e) the date Administrative Agent shall have received a certificate, dated the First Amendment Effective Date and signed by a Responsible Officer of the Interim Financial Statements Borrower, confirming compliance with the conditions set forth in clauses (c) and (d) of this Section 3;
(f) the Administrative Agent shall have received a written opinion (addressed to the Administrative Agent, the Issuing Lenders and the Lenders and dated as defined belowof the First Amendment Effective Date) of Dechert LLP, which shall be in form reasonably satisfactory to the Administrative Agent, and covering such other matters relating to the Loan Parties (other than Cornell Real Estate Holdings, LLC), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantorthis Agreement, the Company Amended Credit Agreement or their subsidiaries taken the transactions contemplated hereby or thereby as a whole, whether or not arising from transactions occurring in the ordinary course of business Administrative Agent shall reasonably request (a “Material Adverse Change”).
h) The Guarantor and the Company Borrower hereby instructs such counsel to deliver such opinion to the Lenders, the Issuing Lenders and the Administrative Agent);
(g) the Administrative Agent shall have executed the Parent Guarantee Agreement received such documents and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser Administrative Agent or its counsel may reasonably request. If any request relating to incumbency, the organization, existence and good standing of the conditions specified Borrower and each other Loan Party and the authorization of the transactions contemplated by this Agreement all in this Section 3 form and substance reasonably satisfactory to the Administrative Agent and its counsel;
(h) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and to the extent requested by the Administrative Agent, any Issuing Lender or any Lender, the Borrower shall not deliver to the Administrative Agent, such Issuing Lender and such Lender, as applicable, a Beneficial Ownership Certification at least three Business Days prior to the First Amendment Effective Date;
(i) the Existing Revolving Commitments shall have been fulfilled when replaced and refinanced with the New Revolving Commitments and the Existing Revolving Loans shall have been repaid (together with accrued interest thereon) in accordance with Section 2.05(c) of the Amended Credit Agreement;
(j) the Administrative Agent shall have received the results of a recent lien search in each of the jurisdictions of organization of each of the Loan Parties, reasonably satisfactory to the Administrative Agent;
(k) the Administrative Agent shall have received from the Borrower, for the payment to the Lenders and the Issuing Lenders, as provided applicable, all accrued and unpaid interest on the Loans, commitment fees, participation fees and fronting fees, in this Purchase Agreementeach case, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, but excluding, the Closing Date First Amendment Effective Date;
(l) the Administrative Agent shall have received a solvency certificate from a Financial Officer of the Borrower substantially in the form of Exhibit C to this Agreement; and
(m) to the extent reasonably requested by the Purchaser. Notice of such cancellation shall be given Administrative Agent or any Lender at least seven Business Days prior to the Company and First Amendment Effective Date, the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered Borrower shall have provided to the Purchaser or Administrative Agent and such Lender the Purchaser’s counsel documentation and other information so requested in connection with applicable “know your customer" and anti-money laundering rules and regulations, including, without limitation, the Operative Documents and USA PATRIOT Act, at least three Business Days prior to the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityFirst Amendment Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Griffon Corp)
Conditions. a. The obligations making of the parties under this Purchase Agreement are any Advance hereunder is subject to the satisfaction of the following conditions:
aconditions precedent: at the time of a request for an Advance, there shall exist no Event of Default (defined hereinafter) The or circumstance which, with the passage of time or giving of notice or both, would constitute an Event of Default (any such circumstance being referred to herein as a "Potential Default") and each of the ----------------- representations and warranties contained set forth or incorporated herein shall be accurate true and correct in all material respects with the same force and effect as if the representations and warranties had been made on and as of such time, except to the extent that any representation or warranty may expressly relate solely to an earlier date.
b. ABN AMRO shall have received from Borrower, in form and substance satisfactory to ABN AMRO, the following:
i. On or prior to the date of the first Advance, guaranties, in form and substance satisfactory to ABN AMRO, from Cable Design Technologies Corporation ("Parent") and all material domestic ------ subsidiaries of Borrower (the Parent and such subsidiaries are collectively referred to herein as the "Guarantors") of the ---------- obligations of Borrower arising under the Loan Documents.
ii. Within twenty (20) days of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLPfirst Advance, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇'s and each Guarantors' Certificate or Articles of Incorporation, ▇▇▇▇▇▇ & Fingercertified by the relevant Secretary of State, P.A.and Bylaws certified to Bank by the appropriate corporate Secretaries, special Delaware counsel for together with copies of the Delaware Trustee, dated resolutions of the Closing Date, addressed to the Purchaser, The Bank Boards of New York Trust Company, National Association, the Delaware Trustee Directors of Borrower and the CompanyGuarantors authorizing the execution, in substantially delivery, and performance of this Agreement and the form set out in Annex C hereto.other Loan Documents by a specified number of authorized officers whose specimen signatures and such resolutions are certified by the appropriate corporate Secretary, and a good standing certificate of Borrower and each Guarantor, certified by the relevant Secretary of State;
eiii. Within ten (10) The Purchaser shall have received days of the date of the first Advance, an opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for and the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, Guarantors substantially in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, Existing Credit Agreement (defined hereinafter); and
iv. Such additional documents as the case ABN AMRO may be, and not by such trustee or officer in any individual capacityreasonably request.
Appears in 1 contract
Sources: 364 Day Revolving Line of Credit Letter Agreement (Cable Design Technologies Corp)
Conditions. 4.1 The obligations agreement of the parties under this Purchase Agreement are Creditors contained in Clause 3 shall be expressly subject to the following conditionscondition that the Agent shall have received on or before the Effective Date in form and substance satisfactory to the Agent and its legal advisers:
a) The representations a. a certificate of good standing or equivalent document issued by the competent authorities of the place of its incorporation in respect of each of the Borrower and warranties contained herein the Corporate Guarantors;
b. certified and duly legalised copies of resolutions passed at a meeting of the Board of Directors of the Borrower evidencing approval of this Agreement and authorising appropriate officers or attorneys to execute the same and to sign all notices required to be given under this Agreement on its behalf or other evidence of such approvals and authorisations as shall be accurate acceptable to the Agent;
c. certified and duly legalised copies of the certificates of incumbency of:
i. the Borrower signed by the secretary or a director of each of them, including, inter alia, a list of directors and officers of each of them, the officers and/or the directors of each of them; and
ii. each Corporate Guarantor signed by the secretary or a director of each of them, including, inter alia, a list of director(s) and officer(s) of each of them and confirming that (i) the latest Resolutions passed by Written Consent of the Sole Shareholder and the Sole Director of each of them remain in full force as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLPthereof and have not been amended, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer rescinded or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) revoked and (ii) below and, the power of attorney issued by such Corporate Guarantor in accordance with such Resolutions contained in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust said Written Consents remains in this Purchase Agreement are true and correct in all material respects on and full force as of the Closing Date date hereof and has not been amended, rescinded or revoked;
d. all documents evidencing any other necessary action or approvals or consents with respect to this Agreement;
▇. the same effect as if made original of any power(s) of attorney issued in favour of any person executing this Agreement on behalf of the Closing Date, and Borrower;
f. certified true copies of the Company and latest Addenda to the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part Zim Charterparties to be performed or satisfied made pursuant to the Operative Documents at Zim Restructuring;
g. a copy of the global restructuring deed to be entered between, inter alios, the Zim Charterer and the Owners and the restructuring completion letter dully executed by Zim Charterer and in particular receipt of all further information or prior documents related to the Closing Dateglobal restructuring deed as the Agent may reasonably require to the extent that such information is available to the Owners of the Zim Ships and, as long as these are not cash flow related, subject to any applicable confidentiality obligations;
(ii) since the date h. opinions of the Interim Financial Statements Lenders’ legal advisers (as defined below), there has been no material adverse change in including an opinion on English Law matters) addressed to the condition (financial or other), earnings, business or assets Agent on matters of the Guarantor, laws of such Jurisdiction as the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).Agent may require; and
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel i. such further information, certificates and documents conditions precedent as the Purchaser or its counsel Agent may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityrequire.
Appears in 1 contract
Conditions. 4.1 The obligations agreements of the parties under Lender contained in Clause 3.1 of this Purchase Second Supplemental Agreement are shall all be expressly subject to the following conditions:
a) The representations condition that the Lender shall have received in form and warranties contained herein shall be accurate as of substance satisfactory to the Lender and its legal advisers on or before the date of delivery this Second Supplemental Agreement:
(a) evidence that the persons executing this Second Supplemental Agreement on behalf of each Borrower are duly authorised to execute the same on behalf of such Borrower;
(b) a certificate from an officer of each Additional Owner confirming the names of all the directors and Shareholders of that Additional Owner and having attached thereto true and complete copies of its incorporation and constitutional documents;
(c) true and complete copies of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for resolutions passed at separate meetings of all the Guarantordirectors and shareholders of Farat, the Company New Owner and each Additional Owner authorising and approving the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, andexecution of, in the case of the Guarantor Farat and the CompanyNew Owner the Mortgage Addendum and in the case of each Additional Owner the Additional Finance Documents to which it is a party and any other document or action to which it is or is to be a party and authorising its directors or other representatives to execute the same on its behalf;
(d) the original of any power of attorney issued by Farat, as the New Owner and each Additional Owner pursuant to such resolutions aforesaid;
(e) evidence that each Additional Ship is:
(i) registered in the ownership of the relevant Additional Owner under the laws and flag of the Malta; and
(ii) below insured in accordance with the relevant provisions of the Additional Deed of Covenant relative to that Additional Ship and all requirements thereof in respect of such insurance have been fulfilled; and
(f) the Additional Finance Documents and the Mortgage Addenda, duly executed by the Additional Owners or, in the case of each Mortgage Addendum, Farat or the Trust, as to (i) belowNew Owner together with evidence that:
(i) each Additional Mortgage has been registered against the representations and warranties of the Guarantor, the Company and the Trust relevant Additional Ship with first priority in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date accordance with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either laws of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing DateMalta;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel each Mortgage Addendum in connection with the Operative Documents and relevant Original Ship has been duly registered in accordance with the transactions contemplated hereby and thereby shall be deemed laws of Malta;
(iii) all notices required to be given under each Additional Deed of Covenant, each Additional General Assignment and each Additional Charterparty Assignment have been given and acknowledged (other than in the case of a representation and warranty of Charterparty Assignment in which case the Trust and/or the Guarantor or the CompanyBorrower or, as the case may be, the Owner which is a party thereto shall procure that the Lender receives the relevant acknowledgement only if an Event of Default has occurred) in the manner therein provided; and
(iv) save for the charges created by or pursuant to the Additional Mortgages, the Additional Deeds of Covenant, the Additional General Assignments and the Additional Charterparty Assignments there is no lien, charge or encumbrance of any kind whatsoever on either Additional Ship or her Earnings, Insurances or Requisition Compensation.
(g) a certified true copy of any Approved Charter entered into in respect of either Additional Ship;
(h) the original of any mandates or other documents required in connection with the opening or operation of the Additional Earnings Accounts and the Deposit Account;
(i) evidence that the applicable Minimum Deposit is standing to the credit of the Deposit Account;
(j) documents establishing that each Additional Ship is managed by the Approved Manager;
(k) a letter of undertaking executed by the Approved Manager in favour of the Lender in the terms required by the Lender agreeing certain matters in relation to the management of each Additional Ship and subordinating the rights of the Approved Manager against that Additional Ship and the Additional Owner owning that Additional Ship to the rights of the Lender under the Finance Documents;
(1) copies of ISM DOC and SMC and the International Ship Security Certificate under the ISPS Code in respect of each Additional Ship;
(m) each Additional Ship maintains the highest available class with such first-class classification society which is a member of the IACS as the Lender may approve free of all recommendations and conditions of such classification society;
(n) evidence that each Additional Owner is a direct or indirect subsidiary of the Corporate Guarantor;
(o) certified copies of all documents (with a certified translation if an original is not by in English) evidencing any other necessary action, approvals or consents with respect to this Second Supplemental Agreement and the Additional Finance Documents (including without limitation) all necessary governmental and other official approvals and consents in such trustee or officer pertinent jurisdictions as the Lender deems appropriate;
(p) such legal opinions as the Lender may require in any individual capacityrespect of the matters contained in this Second Supplemental Agreement and the Additional Finance Documents and the Mortgage Addenda; and
(q) evidence that the agent referred to in Clause 9.4 has accepted its appointment as agent for service of process under this Second Supplemental Agreement and the Additional Finance Documents.
Appears in 1 contract
Sources: Loan Agreement (DryShips Inc.)
Conditions. 4.1 The obligations agreement of the parties under Creditor Parties contained in Clause 3.1 of this Purchase Fifth Supplemental Agreement are shall be subject to the following conditionsconditions that the Creditor Parties shall have received in form and substance satisfactory to the Security Trustee on behalf of the Lenders and their legal advisers on or before the signature hereof:
(a) The representations and warranties contained herein shall be accurate as a certificate of a Director of the date Borrower confirming the names and offices of delivery all the Directors and/or Officers of the Preferred Securities.Borrower, and confirming that the Borrower’s incorporation and constitutional documents have not been altered or amended since 28 May 2015;
(b) Winston & ▇true and complete copies of the resolutions passed at a meeting of the Board of Directors of the Borrower, authorising and approving the execution of this Fifth Supplemental Agreement and any other document or action to which the Borrower is a party, and authorising its appropriate officer or officers or other representatives to execute the same on its behalf;
(c) the original of any power of attorney issued by the Borrower pursuant to such resolutions aforesaid;
(d) certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action, approvals or consents with respect to this Fifth Supplemental Agreement (including without limitation) all necessary governmental and other official approvals and consents in such pertinent jurisdictions as the Security Trustee deems appropriate;
(e) a duly executed original of this Fifth Supplemental Agreement;
(f) an executed copy of the MOA, together with evidence that the deposit thereunder has been paid by the seller and is held in an escrow account with W▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere F▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLPLLP in London upon terms acceptable to the Lenders;
(g) such legal opinions as the Security Trustee may require in respect of the matters contained in this Fifth Supplemental Agreement;
(h) a duly executed confirmation from each Security Party in the form of Schedule 3 hereto, special counsel confirming that (notwithstanding the amendments made to the Loan Agreement pursuant to this Agreement) the Finance Documents to which it is a party and its obligations thereunder remain valid and binding; and
(i) receipt by the Lenders of the expenses referred to in Clause 8.
4.2 The agreement of the Creditor Parties contained in Clause 3.1 (d) of this Fifth Supplemental Agreement shall be further subject to the condition that the Creditor Parties shall receive within forty five (45) days of the date of this Fifth Supplemental Agreement evidence satisfactory to the Agent of the agreement of Commerzbank AG and UniCredit Bank AG, as parties to other loan facilities currently in place with Paragon Shipping Inc. as borrower, that they have agreed to the sale of the vessels which are the subject of those loan facilities and that the terms that relate to the write off of the balance of those loan facilities are not more favourable than those terms provided for in this Fifth Supplemental Agreement. For the avoidance of doubt, should the Borrower fail to produce the above mentioned evidence within the above mentioned time period, then the amount of the Loan in the sum of US$2,192,375 referred to in Clause 3.1 (d) shall be deemed not to have been written off and the Borrower shall instead provide to the Lenders a further unsecured PIK Note in the sum of US$2,192,375 on the same basis and upon the same terms as described in Clause 6 hereof.
4.3 Upon receipt by the Lenders’ lawyer at the closing meeting for the Property Trustee Vessel’s sale of the original of the agreed form Protocol of Delivery and Acceptance duly signed by the seller and the Indenture Trustee, dated buyer under the Closing Date, addressed MOA in accordance with the release instructions contained in the MT199 Swift instructions sent to the PurchaserAgent by the buyer’s remitting bank, in substantially the form set out in Annex D hereto.
f) The Purchaser Lenders shall have received immediately provide to the opinion Borrower evidence of the discharge of the Mortgage by way of a certificate of ownership and encumbrances issued by the M▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for Islands Flag Administration (IRI) in Piraeus confirming the Delaware TrusteeBorrower as owner of the Vessel and showing the Vessel free from all registered encumbrances, dated the Closing Date, addressed to the Purchaser and The Bank date of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each delivery of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)Vessel.
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Fifth Supplemental Agreement (Paragon Shipping Inc.)
Conditions. 5.1 The obligations agreement of the parties under this Purchase Agreement are Lender contained in Clause 4 shall be expressly subject to the following conditions:
a) The representations and warranties contained herein shall be accurate as of condition that the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser Lender shall have received on or before the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed Effective Date in form and substance satisfactory to the Purchaser, The Bank Lender and its legal advisers:
a. a certified true copy of New York Trust Company, National Associationthe certificate of good standing or other equivalent document issued by the competent authorities of the place of its incorporation in respect of each of the Borrower, the Delaware Trustee Collateral Owner and the CompanyCorporate Guarantor;
b. certified and duly legalised copies of resolutions duly passed by the Board of Directors of the Borrower, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee Collateral Owner and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser Corporate Guarantor and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each certified and duly legalised copies of the Guarantor resolutions passed at a meeting of the shareholders of the Borrower, the Collateral Owner and the Company shall have furnished to the Purchaser a certificate Corporate Guarantor (and of the Guarantor and the Companyany corporate shareholder thereof), as if applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer evidencing approval of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or Collateral Security Documents and/or the Company, Guarantee Deed of Amendment No. 2 (as the case may be) and authorising appropriate officers or attorneys–in-fact to execute the same and to sign all notices required to be given under this Agreement on its behalf or other evidence of such approvals and authorisations as shall be acceptable to the Lender;
c. all documents evidencing any other necessary action or approvals or consents with respect to this Agreement, including, but not limited to, certified and duly legalised Certificates of Incumbency issued by any of the Directors of the Borrower, the Collateral Owner and the Corporate Guarantor evidencing approval of this Agreement and authorising appropriate officers or attorneys-in-fact to execute the same and to sign all notices required to be given under this Agreement on its behalf or other evidence of such approvals and authorisations as shall be acceptable to the Lender;
d. the original of any power(s) of attorney issued in favour of any person executing this Agreement on behalf of the Borrower, the Collateral Owner, and not the Corporate Guarantor;
e. all documents evidencing any other necessary action or approvals or consents with respect to this Agreement;
f. such favourable legal opinions from lawyers acceptable to the Lender and its legal advisors as the Lender shall require;
g. evidence satisfactory to the Lender that the Collateral Vessel is duly registered under the laws and flag of the Commonwealth of the Bahamas at the Ships Registry of the port of Nassau in the ownership of the Collateral Owner;
h. evidence that the Collateral Vessel is fully classed with the highest classification available with a Classification Society that is a full member of IACS and such classification is and will be free of all overdue requirements, recommendations or notations affecting class (other than those notified in writing to the Lender and accepted by such trustee or officer the Lender in any individual capacity.writing) and with all trading and other class certificates, national and international, valid and in full force and effect;
i. duly executed originals of each of the Collateral Security Documents and the Guarantee Deed of Amendment No. 2 and, where appropriate, duly registered in favour of the Lender;
j. evidence satisfactory to the Lender that the Collateral Mortgage has been duly registered on the Collateral Vessel as a second priority ship mortgage in favour of the Lender in accordance with the laws of the Commonwealth of the Bahamas;
k. all necessary confirmation by the Collateral Vessel's insurers that they will issue their letters of undertaking and endorse notices of assignment and loss payable clauses on the insurances, satisfactory to the Lender in its discretion;
l. evidence satisfactory to the Lender that an amount equal to $500,000 for the Vessel is maintained in the Earnings Account; and
Appears in 1 contract
Conditions. The obligations effectiveness of this Amendment is expressly contingent upon Borrowers' delivery to Agent of the parties under this Purchase Agreement are subject following documents, in form and content acceptable to the following conditionsAgent, in its sole discretion:
(a) The representations and warranties contained herein shall be accurate Notes executed by the Borrowers;
(b) This Amendment executed by the Borrowers;
(c) Copies of the resolutions of each Borrowers' governing boards, certified by the secretaries of each Borrower as of the date of this Amendment, authorizing the execution, delivery and performance of this Amendment, the Notes, the other Loan Documents, and each other document to be delivered pursuant hereto;
(d) Copies of each Borrowers' charter or articles of organization, as applicable, all certified as of the Preferred Securities.most recent date practicable by the Secretary of State of its incorporation or formation, together with certificates dated the date of this Amendment of each Borrowers' secretary to the effect that such charters or articles of organization have not been amended since the date of the aforesaid Secretary of State certifications;
b(e) Winston Copies of each Borrowers' by-laws or operating agreement, as applicable, all certified by each Borrowers' secretary as of the date of this Amendment;
(f) Certificates dated as of the date of this Amendment of each Borrowers' secretary as to the incumbency and signatures of the officers of the Borrowers executing this Amendment, the Notes, the other Loan Documents, and each other document to be delivered pursuant hereto;
(g) Certificates, as of the most recent dates practicable, of the aforesaid Secretary of State, the Secretary of State of each state in which each Borrower is qualified as foreign corporations or entities and of the department of revenue or taxation of the foreign states as to the good standing of each Borrower;
(h) Written opinions of Bass, Berr▇ & ▇ims, ▇▇▇▇▇ LLPC, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinioneach Borrowers' counsel, dated the Closing Datedate of this Amendment and addressed individually to Agents and Banks, addressed in form reasonably satisfactory to the Purchaser Agents and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees Banks.
(i) Payment of the GuarantorUpfront Fees described in paragraph 17 below, together with all reasonable costs and expenses incurred by Agent in connection with the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinionsAmendment, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991)reasonable attorneys' fees.
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations of the parties under this Purchase Agreement are subject With respect to the following conditions:
a) The representations and warranties contained herein any New Commitments, each such New Commitment shall be accurate become effective, as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing such Increased Amount Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below; provided that:
(i) the representations both before and warranties after giving effect to each such New Commitment, each of the Guarantor, the Company and the Trust conditions set forth in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to Section 3.02 shall be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Datesatisfied;
(ii) since Borrowers and their Restricted Subsidiaries shall be in pro forma compliance with the date Financial Covenant as of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets last day of the Guarantormost recently ended Test Period after giving effect to each such New Commitment (and other customary and appropriate pro forma adjustment events, including any Permitted Acquisitions, Asset Sales or repayment of Indebtedness after the Company beginning of the applicable Test Period but prior to or their subsidiaries taken as simultaneous with the borrowing under the New Commitment) (and assuming a whole, whether full drawing of such New Commitment);
(iii) no Default or not arising from transactions occurring in the ordinary course Event of business (a “Material Adverse Change”).
h) The Guarantor and the Company Default shall have executed occurred and be continuing or would result from the Parent Guarantee Agreement and borrowings to be made on the Increased Amount Date; and
(iv) Borrowers shall deliver or cause to be delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.any customary legal opinions or other certificates reasonably requested by Administrative Agent in connection with any such transaction; and
i(v) Prior Notwithstanding anything to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified contrary in this Section 3 shall not have been fulfilled when 2.23 or in any other provisions of any Credit Document, if the proceeds of any New Commitments are intended to be applied to finance an acquisition permitted pursuant to Section 6.06(f) and as provided in this Purchase Agreementthe New Revolving Lenders or New Term Loan Lenders providing such New Commitments so agree, this Purchase Agreement and all the Purchaser’s obligations hereunder availability thereof may be canceled at, subject to customary “SunGard” or at any time prior to, “certain funds” conditionality and the Closing Date by the Purchaser. Notice of such cancellation Available Incremental Amount shall be given determined based on the Test Period most recently ended prior to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee execution of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by acquisition agreement for such trustee or officer in any individual capacityacquisition.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (AVG Technologies N.V.)
Conditions. The obligations effectiveness of the parties under Article II of this Purchase Agreement are Amendment is subject to the satisfaction of the following conditionsconditions precedent:
(a) The Administrative Agent shall have received the following, all in form and substance acceptable to the Agent: (i) a fully executed complete copy of the Subsidiary Joinder Agreement executed by Green Forest Foods, LLC (including all schedules thereto); (ii) the results of the search of the Uniform Commercial Code (or equivalent) and effective financing statement filings, tax Liens and judgment Liens made with respect to the Pledgors (including Green Forest Foods, LLC) in each jurisdiction (A) in which a Pledgor is organized, (B) where a Pledgor has its chief executive office or has had its chief executive office within the last four months and (C) in which any Collateral is located; and copies of the financing statements (or other documents) disclosed by such search and evidence reasonably satisfactory to the Agent that the Liens indicated by such financing statements (or similar documents) are permitted by the Agreement or have been released; (iii) a legal opinion from counsel to Green Forest Food, LLC addressing such matters relating to this Amendment and the documents executed pursuant hereto as the Agent may request; (iv) such other documentation that is required to be delivered under the terms of the Subsidiary Joinder Agreement and the Consolidated Security Agreement; and (v) such other documentation as the Administrative Agent may request to cause Green Forest Foods, LLC to create, perfect, or otherwise implement the guaranty and pledge of collateral contemplated by the Amended Guaranty Agreement and Consolidated Security Agreement (collectively with the Subsidiary Joinder Agreement, herein the "Joinder Documents"); TENTH AMENDMENT TO SECOND AMENDED AND RESTATED
(b) The Administrative Agent shall have received such evidence of the existence and good standing of the Pledgors (including Green Forest Foods, LLC) and of their authority to execute, deliver and perform this Amendment and, with respect to Green Forest Foods, LLC, the Joinder Documents to which each is a party as the Administrative Agent may require, each dated (unless otherwise indicated) the date of this Amendment, in form and substance satisfactory to the Administrative Agent;
(c) The Administrative Agent shall have received such additional documentation and information as it or its legal counsel may request;
(d) The representations and warranties contained herein and in all other Loan Documents, as amended hereby, shall be accurate true and correct as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect hereof as if made on the Closing Datedate hereof, except for such representations and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of warranties limited by their part terms to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Datea specific date;
(iie) since No Event of Default nor any event or condition that with the date giving of the Interim Financial Statements notice or lapse of time or both would be such an Event of Default shall exist or will result; and
(as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries f) All proceedings taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby by this Amendment and thereby all documentation and other legal matters incident thereto shall be deemed satisfactory to be a representation the Administrative Agent and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityits legal counsel.
Appears in 1 contract
Conditions. The obligations of the parties under this Purchase Agreement are subject In addition to any other conditions to the following conditions:
a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form Loan set out in Annex A-I hereto and the Company this Agreement, PFG will not make any Loan until PFG shall have furnished received from Borrower, in form and substance satisfactory to PFG, such documents, and completion of such other matters, as PFG may reasonably deem necessary or appropriate, including that there shall be no discovery of any facts or circumstances which would, as determined by PFG in its sole discretion, negatively affect or be reasonably expected to negatively affect the collectability of the Obligations, PFG’s security interest in Borrower’s Collateral or the value thereof. Notwithstanding the foregoing, Borrower agrees to deliver to PFG each item required to be delivered to PFG under this Agreement as a condition precedent to any Loan. Borrower expressly agrees that a Loan made prior to the Purchaser a certificate signed receipt by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies PFG of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion item shall not state that they are constitute a waiver by PFG of Borrower’s obligation to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Companydeliver such item, and the Trust making of any Loan in the absence of a required item shall have furnished be in PFG’s sole discretion. Without limiting the foregoing, as a condition to the Purchaser a certificate of the TrustLoan, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) belowBorrower shall provide:
(i) duly executed original signatures of Borrower to the representations and warranties of the GuarantorLoan Documents to which Borrower is a party, including without limitation, this Agreement, the Company Intellectual Property Security Agreement and the Trust in this Purchase Agreement are true related Collateral Agreements and correct in all material respects on Notices, landlord consents and as of the Closing Date with the same effect as if made on the Closing Datebailee waivers, and the Company subordination agreements among PFG, Borrower and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either holders of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing DateSubordinated Debt;
(ii) since Borrower’s Constitutional Documents and, where applicable, a good standing certificate of Borrower certified by the Secretary of State or other Governmental Body of the jurisdiction of formation of Borrower, as of a date no earlier than thirty (30) days prior to the date hereof;
(iii) A Certificate of Incumbency and a Secretary’s Certificate certifying the Constitutional Documents of Borrower and resolutions of the Interim Financial Statements (as defined below)Board of Borrower authorizing the execution, there has been no material adverse change delivery and performance of the Loan Documents to which such Borrower is a party, including in the condition (financial or other), earnings, business or assets case of the GuarantorParent, the Company or their subsidiaries taken Warrant;
(iv) Control Agreements as required by Section 8(b) of this Schedule, duly executed by Borrower and each relevant depositary institution in favor of PFG, including from Silicon Valley Bank;
(v) certified copies, dated as of a wholerecent date, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National AssociationSecurity Instrument searches, as Guarantee Trustee.
iPFG shall request, accompanied by written evidence (including any UCC termination statements) Prior to that the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel Liens indicated in any such further information, certificates and documents as the Purchaser Security Instruments either constitute Permitted Liens or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreementor, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents Loan, will be terminated or released;
(vi) the Representations, duly executed by Borrower,
(vii) landlord consents executed in favor of PFG by Borrower’s principal office lessor in respect of its premises in Madison, Wisconsin and, if required by PFG, each other premises where Borrower holds Collateral with a fair value in excess of $10,000, and warehouseman’s/bailee waivers in respect of third party premises where Collateral with a fair value in excess of $10,000 is stored or housed, including Borrower’s facilities at Embedtek (Hartland, WI), 5Nines (Madison, WI) and TDS (Madison, WI);
(viii) duly executed Warrants in favor of PFG and its designees (the “PFG Warrant”) to purchase up to 50,000 Common Shares of Borrower, in agreed form;
(ix) the insurance policies and/or endorsements required pursuant to Section 4.3;
(x) payment of the Fees specified in Section 3 of this Schedule and Lender Expenses incurred in connection with the Loan;
(xi) any third party consents required in order for Borrower to enter into and perform the Loan Documents;
(xii) execution and delivery of a subordination agreement between PFG and the transactions contemplated hereby Senior Lender in respect of obligations under this Agreement;
(xiii) PFG shall have received true, correct and thereby shall be deemed to be a representation and warranty current copies of the Trust and/or Senior Loan Documents; and
(xiv) to the Guarantor extent that the conditions to this Agreement have not been completed as of the Effective Date, a post-closing obligations letter in PFG’s customary form by which PFG waives or the Companydefers performance of such conditions as PFG is willing to defer in its sole business discretion. By Name: Title: Manager, as the case may bePartners for Growth IV, and not by such trustee or officer in any individual capacity.LLC Its General Partner
Appears in 1 contract
Conditions. The obligations effectiveness of this Agreement is conditioned upon the occurrence or the execution and delivery, prior to or concurrently herewith, of each of the parties under this Purchase Agreement are subject following:
3.1 A prepayment to CIT in an amount equal to One Million and No/Dollars ($1,000,000) by TMR Drilling and any other borrowers party to the following conditions:
a) The representations and warranties contained herein shall be accurate CIT Credit Agreement on the principal amount outstanding under the CIT Credit Agreement as of the date hereof, which prepayment shall not be subject to any breakage costs, penalty fees, or similar charges under the CIT Credit Agreement or otherwise;
3.2 A Second Amendment to Equipment Lease, in form and substance mutually agreed by the Parties, duly executed by each of delivery of TMR Drilling and Orion;
3.3 A Security Agreement, substantially in the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust form attached hereto as Exhibit D (the “Company CounselSecurity Agreement”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser duly executed by each of TMR Drilling as “debtor” and The Bank of New York Trust Company, National AssociationOrion as “secured party”;
3.4 A subordination and intercreditor agreement, in substantially form and substance mutually agreed by the form set out Parties and CIT (the “Intercreditor Agreement”), duly executed by each of Orion and CIT;
3.5 The CIT Forbearance Agreement, duly executed by each of TMR Drilling, TMRX, Meridian, and CIT, in Annex A-I hereto which CIT agrees to forbear from exercising any and all of its rights and remedies under the CIT Credit Agreement with respect to certain defaults and events of default thereunder for a period of ninety (90) days from the date thereof; and
3.6 Copies of the resolutions of the boards of directors (or equivalent governing body) of each of the Parties authorizing the execution and delivery thereby of this Agreement and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Companyagreements contemplated hereby, and the Trust shall have furnished to the Purchaser a certificate performance of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty thereby, certified by the Secretary or Assistant Secretary of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityParty.
Appears in 1 contract
Sources: Forbearance and Amendment Agreement (Meridian Resource Corp)
Conditions. The obligations obligation of Lender to forbear in accordance with the terms of this Agreement is expressly conditional upon the following occurring on or prior to the execution of this Agreement:
a. No changes or modifications have occurred with respect to the Articles of Incorporation and Bylaws of Borrower since the execution of the parties under this Purchase Agreement are subject to the following conditions:Loan Documents;
a) The representations and warranties contained herein shall be accurate as b. Receipt by Lender of a resolution of the date board of delivery directors of Borrower, certified by Borrower’s secretary, authorizing the Preferred Securities.execution of this Agreement and the transactions contemplated herein;
b) Winston & c. Receipt of a personal financial statement from ▇▇▇▇▇▇▇ LLPas of August 30, counsel for the Guarantor2004, the Company and the Trust (the “Company Counsel”)on Lender’s standard form or such other form as shall be prescribed by Lender, shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees ▇▇▇▇▇▇▇;
d. Receipt of the Guarantorfiscal year end financial statements as of December 31, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion 2003 of ▇▇▇▇▇▇ ▇▇▇▇ & Brothers, including the income statement, balance sheet, statement of retained earnings, statement of cash flow and any notes to the above-referenced financial statements, reviewed by an independent certified public accountant not unacceptable to Lender and setting forth in comparative form the corresponding figures for the preceding fiscal year, with all such statements and balance sheets being in reasonable detail, including all supporting schedules and comments and free of any exceptions or qualifications not acceptable to Lender and shall be prepared in accordance with generally accepted accounting principals, consistently applied by ▇▇▇▇▇▇ LLPBrothers;
e. Receipt of the first Monthly Forbearance Fee due in accordance with Section 3 herein and the Initial Principal Payment due in accordance with Section 5 herein;
f. Receipt of the borrowing base certificate as of August 31, dated the Closing Date2004, addressed together with all supporting documents, all in a form and substance satisfactory to the Purchaser and The Bank of New York Trust Company, National AssociationLender, in substantially the form set out in Annex B hereto.its sole discretion; and
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee g. All legal details and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel proceedings in connection with the Operative Documents and the transactions contemplated hereby and thereby by this Agreement, shall be deemed satisfactory to be Lender and Lender shall have received all such counterpart originals or certified or other copies of such documents and proceedings in connection with such transactions in a representation form and warranty of the Trust and/or the Guarantor or the Companysubstance satisfactory to Lender, as the case Lender may be, and not by such trustee or officer in any individual capacityfrom time to time request.
Appears in 1 contract
Conditions. The obligations 2.1 Before Clause 4 of this Letter shall take effect, the Borrower shall deliver or cause to be delivered to or to the order of the parties under this Purchase Agreement are subject Agent the following documents and evidence:-
2.1.1 A certificate from a duly authorised officer of each of the Security Parties (i) confirming that none of the documents delivered to the following conditions:
a) The representations Agent pursuant to clauses 3.1.1 and warranties contained herein shall be accurate as 3.1.4 of the Original Agreement have been amended or modified in any way since the date of their delivery to the Agent, or copies, certified by a duly authorised officer of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLPSecurity Party in question as true, counsel for the Guarantorcomplete, the Company accurate and the Trust (the “Company Counsel”)neither amended nor revoked, shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President amended or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) modified and (ii) below and, in setting out the case names of the Trustdirectors, officers and (other than the Guarantor) the shareholders of that Security Party.
2.1.2 A copy, certified by a director or the secretary of the Security Party in question as true, complete and accurate and neither amended nor revoked, of a resolution of the directors and a resolution of the shareholders of each Security Party (other than the Guarantor) (together, where appropriate, with signed waivers of notice of any directors’ or shareholders’ meetings) approving, and authorising or ratifying the execution of, this Letter, the Confirmation Deed, the Confirmation Letter and the Mortgage Addenda.
2.1.3 The notarially attested and legalised (in either case to the extent required by applicable law) power of attorney of each of the Security Parties under which this Letter, the Confirmation Deed, the Confirmation Letter and the Mortgage Addenda is to be executed by that Security Party.
2.1.4 Evidence of payment to the Agent of an amendment fee for the account of each of the Banks which has consented to the Request of nought point two five per cent (0.25%) of the amount of their respective Proportionate Shares.
2.1.5 This Letter (including the Acknowledgement below), the Confirmation Deed, the Confirmation Letter and the Mortgage Addenda duly executed by all parties thereto together with evidence of the registration of the Mortgage Addenda at the Panamanian and Liberian Ship Registries, as to appropriate.
2.1.6 Evidence that SNSA’s Liquidity Line has been extended and (i) below:
(i) the representations and warranties is available to members of the Guarantor, the Company SO Group until 30 November 2004 and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since is fully subordinated to the date Facility upon terms and conditions acceptable to the Agent.
2.1.7 Evidence that the Additional Subordinated Debt has been contributed by SNSA into the Guarantor.
2.1.8 Such legal opinions as the Agent on behalf of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)Banks shall require.
h) The Guarantor 2.2 All documents and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and evidence delivered to the Purchaser Agent pursuant to this Clause shall:-
2.2.1 be in form and substance acceptable to the Agent;
2.2.2 be accompanied, if required by the Agent, by translations into the English language, certified in a manner acceptable to the Agent;
2.2.3 if required by the Agent, be certified, notarised, legalised or attested in a manner acceptable to the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacityAgent.
Appears in 1 contract
Sources: Secured Multi Currency Revolving Loan Facility Agreement (Stolt Offshore S A)
Conditions. The obligations (a) Section 6.1(c) of the parties under Agreement is hereby amended by deleting the second sentence thereof in its entirety and replacing it with the following: "For purposes of this Purchase Agreement are subject to the following conditions:
a) The representations and warranties contained herein shall be accurate as Agreement, FCC Approval of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby FCC Application shall be deemed to be a representation and warranty final if the FCC has taken action (i) approving the transfer of the Trust and/or FCC Licenses for the Guarantor ownership and operation of the Company Stations pursuant to the Merger and (ii) if Parent has delivered the Venture Notice, approving the transfer of the FCC Licenses for the ownership and operation of television station KXAS-TV as contemplated by the Letter Agreement, which in the case of each such approval has not been reversed, stayed, enjoined, set aside, annulled or suspended, with respect to which no timely request for stay, petition for reconsideration or appeal or sua sponte action of the FCC with comparable effect is pending and as to which the time for filing any such request, petition or appeal or for the taking of any such sua sponte action by the FCC has expired, provided, that the requirement that such FCC Approval must be final may be (A) waived in writing by Parent or (B) waived in writing by the Company with respect to the transfer of the FCC Licenses pertaining to television station KXAS-TV (which waiver may only be effected if requested by Parent pursuant to Section 4.6); and, provided further, that the requirement that final FCC Approval with respect to the transfer of the FCC Licenses for the ownership and operation of television station KXAS-TV by an entity controlled by NBC shall not be a closing condition if such final approval shall not have been obtained by May 1, 1998."
(b) Section 6.2(d) of the Agreement is hereby amended by inserting the following sentence after the last sentence thereof: "The Company and Parent acknowledge in connection with the foregoing that a true, correct and complete copy of NBC's consent, under the NBC Network Agreements, to the transfer of control of the FCC Licenses of the Company Stations covered by the NBC Network Agreements to Parent or its affiliate in connection with the Merger has been delivered to the Company, as the case may be, and not by such trustee or officer in any individual capacity."
Appears in 1 contract
Conditions. 4.1 Conditions Precedent to the Effectiveness of this Agreement. The obligations obligation of the parties under this Purchase Agreement are each Lender to make its initial extension of credit hereunder is subject to the condition that the Agent has received on or before the Closing Date all of the following conditions:in form and substance satisfactory to the Agent and each Lender, in sufficient copies for each Lender;
(a) The representations This Agreement and warranties contained herein shall be accurate as the Notes executed by each party thereto.
(b) A copy of a resolution or resolutions adopted by the Board of Directors or Executive Committee of the date of delivery Borrower, certified by the Secretary or an Assistant Secretary of the Preferred SecuritiesBorrower as being in full force and effect on the date hereof, authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, and a copy of the Certificate of Incorporation and the By-Laws of the Borrower, similarly certified.
b(c) Winston & ▇▇▇▇▇▇ LLPA certificate, counsel for signed by the Guarantor, Secretary or an Assistant Secretary of the Company Borrower and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Datedate hereof, addressed as to the Purchaser incumbency of the person or persons authorized to execute and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a deliver this Agreement.
(d) A certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees Corporate Controller of the GuarantorBorrower that, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below)hereof, there has been no material adverse change in its consolidated financial condition since December 31, 2003 not reflected on its Quarterly Report on Form 10-Q filed with the condition SEC for the period ending March 31, 2004.
(financial e) A certificate, signed by the Secretary or other), earnings, business or assets an Assistant Secretary of the GuarantorBorrower and dated the date hereof, as to the Company or their subsidiaries taken as persons authorized to execute and deliver a wholeBorrowing Advice, whether or not arising from transactions occurring a Notice of Conversion/Continuation, and the Revolving Notes and the Term Notes. The Agent and each Lender may rely on such certificate with respect to the Revolving Loans and Term Loans hereunder unless and until it shall have received an updated certificate and, after receipt of such updated certificate, similarly may rely thereon.
(f) A written opinion, dated the date hereof, of counsel for the Borrower, in the ordinary course form of business Exhibit E.
(a “Material Adverse Change”).
hg) The Guarantor Evidence of payment by the Borrower of all accrued and unpaid fees, costs and expenses to the Company shall have executed the Parent Guarantee Agreement extent then due and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to payable on the Closing Date, together with Attorney Costs of Citicorp USA to the Guarantorextent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Citicorp USA's reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Borrower and Citicorp USA); including any such costs, fees and expenses arising under or referenced in Sections 2.9 and 10.4.
(h) Written evidence that all of the Borrowing Agreements have been or concurrently herewith are being terminated.
(i) A certificate, signed by the Chief Financial Officer, Treasurer or an Assistant Treasurer of the Borrower and dated as of the date hereof, which confirms that after giving effect to this Agreement, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any aggregate principal amount of credit available under all of the conditions specified in this Section 3 shall Borrower's committed unsecured revolving credit facilities combined will not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all exceed the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, amount authorized under the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee resolutions of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel Borrower referenced in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacitysubsection 4.1(b).
Appears in 1 contract
Conditions. The obligations This Agreement shall become effective as of the parties under first date (the “2016 Revolver Refinancing Effective Date”) when each of the following conditions shall have been satisfied:
(a) the Administrative Agent shall have received from each Loan Party, the Replacement Revolving Facility Lenders and the Administrative Agent (i) a counterpart of this Purchase Agreement are subject signed on behalf of such party or (ii) written evidence satisfactory to the following conditions:Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
a(b) The the Administrative Agent shall have received a certificate, dated the 2016 Revolver Refinancing Effective Date and executed by a Responsible Officer of the Borrowers, confirming the accuracy of the representations and warranties contained herein set forth in Section 4 above;
(c) the Administrative Agent shall be accurate as have received, on behalf of itself and the date Replacement Revolving Facility Lenders, a favorable written opinion from each of delivery of the Preferred Securities.
b(i) Winston ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel for the GuarantorLoan Parties and (ii) ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius, LLP, New York counsel for the Company and the Trust Loan Parties, in each case (the “Company Counsel”), shall have delivered an opinion, A) dated the Closing Datedate hereof, (B) addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto Administrative Agent and the Company Replacement Revolving Facility Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to this Agreement as the Administrative Agent shall reasonably request;
(d) the Administrative Agent shall have furnished received board resolutions and other customary closing certificates and documentation consistent with those delivered on the Third Amendment Effective Date and such additional customary documents and filings as the Administrative Agent may reasonably require to assure that the Purchaser a certificate signed Replacement Revolving Facility Loans contemplated hereby are secured by the Company’s Chief Executive Officer, President, Collateral ratably with the existing Revolving Facility Loans;
(e) each Replacement Revolving Facility Lender shall have received a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed non-refundable consent fee equal to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees 0.75% of the Guarantoraggregate principal amount of such Lender’s Replacement Revolving Facility Commitment;
(f) all principal, interest and fees outstanding on the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser 2016 Revolver Refinancing Effective Date shall have been furnished paid in full to the opinion Administrative Agent for the account of ▇the existing Revolving Facility Lenders; and
(g) all reasonable and documented out-of-pocket fees and expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for ) owing by the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed Borrowers to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser Administrative Agent and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or invoiced prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company hereof shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trusteebeen paid in full.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. 2.1 The obligations effectiveness of the parties under this Purchase Agreement are Deed is subject to the following conditionsfollowing:
a) 2.1.1 The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed Effective Date occurring by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees later of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since 90 calendar days after the date of the Interim Financial Statements Commitment Letter or 60 calendar days after the date of any vote by Scheme Creditors to approve the Scheme, subject to such vote occurring on or before 75 calendar days after the date of the Commitment Letter;
2.1.2 Delivery to JPM of a copy of the Court order sanctioning the Scheme, the terms of which confirm that an undertaking has been given by the directors of Telewest at the Court hearing to sanction the Scheme that the Scheme will not be made effective unless and until the directors of Telewest are satisfied that TCN and TCN’s senior lenders have entered into the New Bank Documents and that the Recapitalisation Supplemental Deed Effective Date (as such term is defined below), there has been no material adverse change in the condition (financial New Bank Documents) has occurred or other), earnings, business or assets its occurrence is conditional only upon the Effective Date of the Guarantor, Scheme;
2.1.3 Delivery by JPM of a letter of certification to TCN confirming that the Company New Bank Documents are in satisfactory form;
2.1.4 Receipt by JPM of its reasonable costs and expenses (including legal fees) properly incurred up until the date five Business Days before the Effective Date in connection with this Deed or their subsidiaries taken as arising out of negotiations for the settlement of the JPM Claim and the entering into of the Interim Swap Transaction and the New JPM Transaction; and
2.1.5 Delivery by JPM of a whole, whether or not arising from transactions occurring letter of certification to TCN confirming that the form of the New JPM Transaction Confirmation(s) (other than in respect of the ordinary course economic terms of business (a “Material Adverse Change”)the New JPM Transaction) is acceptable to JPM acting reasonably.
h) The Guarantor and 2.2 In the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If event that any of the foregoing conditions specified in this Section 3 shall is not have been fulfilled when and as provided in this Purchase Agreementfulfilled, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby Deed shall be deemed to have had no effect from the date of its execution and the JPM Claim shall be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer reinstated in any individual capacityfull.
Appears in 1 contract
Conditions. The obligations Completion is conditional upon satisfaction or waiver of the parties under this Purchase Agreement are subject to following conditions (together the following conditions:“Completion Conditions” and each of them a “Completion Condition”):
a) The representations and warranties contained herein shall be accurate as of 4.1.1 that competition notifications and/or filings with the date of delivery of relevant Governmental Authorities in connection with the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust Transaction (the “Company CounselFilings”)) shall have been made and that each such competent Governmental Authority, to the extent required before Completion, shall have delivered an opinioneither have:
(a) given the approvals, dated consents or clearances required under relevant Law for the Closing Datecompletion of the Transaction;
(b) rendered a decision that no approval, addressed consent or clearance is required under relevant Law for the completion of the Transaction;
(c) failed to render a decision within the Purchaser applicable waiting period under relevant Law and The Bank such failure is considered under such Law to be a grant of New York Trust Company, National Association, all requisite consents or clearances under such Law; or
(d) referred the Transaction or any part thereof to another Governmental Authority in substantially accordance with relevant Law and that one of the form set out requirements of listed in Annex Aitems (a) through (c) above has been fulfilled in respect of such other Governmental Authority.
4.1.2 the provisions of the Social and Economic Council Merger Regulation for the protection of employees (SER-I hereto and the Company Besluit Fusiegedragsregels 2000) shall have furnished to been complied with, and:
(a) the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished complied with the opinion relevant French Laws and regulations for obtaining the advice of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed Purchaser’s Works Council; and
(b) the Seller shall have complied with the relevant Dutch and Norwegian Laws and regulations for obtaining the neutral advice of the relevant Seller’s Works Councils;
4.1.3 the Seller and the Purchaser have entered into the Joint Venture Agreement according to the terms included in the agreed form heads of terms as included in Schedule 16 (Heads of terms Joint Venture Agreement);
4.1.4 completion of the Joint Venture Agreement has occurred in accordance with its terms;
4.1.5 the Seller and the Purchaser have entered into the MC Library Selling and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed Marketing Agreement according to the Purchaser, The Bank terms included in the agreed form heads of New York Trust Company, National Associationterms of the MC Library Selling and Marketing Agreement as included in Schedule 17 (Heads of terms MC Library Selling and Marketing Agreement);
4.1.6 if required pursuant to Clause 3.3.1, the Delaware Trustee Seller and the Company, in substantially Purchaser have entered into the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed Vendor Loan agreement according to the Purchaser, key terms included in substantially Schedule 21 (Key terms of Vendor Loan);
4.1.7 all lenders under the form set out in Annex D hereto.
f) The Purchaser shall Seller’s bilateral multicurrency revolving facility agreements have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each irrevocably waived any breach of the Guarantor and the Company shall have furnished to the Purchaser a certificate terms of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to those facility agreements which could result from (i) and Completion of the Transaction, (ii) below and, in the case making of the TrustVendor Loan, as to or (i) below:
(iiii) the representations and warranties establishment of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied joint venture pursuant to the Operative Documents at or prior to the Closing DateJoint Venture Agreement;
(ii) since 4.1.8 the date of the Interim Financial Statements (as defined below), there Seller has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the 2011 Accounts and the Q3 Accounts;
4.1.9 the requisite majority of lenders under each of the Purchaser’s counsel in connection with the Operative Documents French Revolving Credit Agreement and the transactions contemplated hereby and thereby shall be deemed Purchaser’s US Credit Agreement having consented to be a representation and warranty the waiver of any breach of the Trust and/or terms of such agreements which could result from (i) Completion of the Guarantor Transaction, (ii) entering into the Vendor Loan or the CompanySecond Vendor Loan, as or (iii) the case may beestablishment of the joint venture pursuant to the Joint Venture Agreement; and
4.1.10 no temporary restraining order, and not preliminary or permanent injunction or other order issued by such trustee any court of competent jurisdiction or officer other restraint or prohibition of any Governmental Authority preventing the consummation of the Transaction being in effect, nor will any individual capacityaction having been taken by any Governmental Authority seeking any of the foregoing that remains pending.
Appears in 1 contract
Conditions. The obligations of the parties under this Purchase Agreement are subject to the following conditions:
a) The representations and warranties contained herein This Amendment shall be accurate effective as of the date of delivery Effective Date once all of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall following have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer been satisfied or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the TrustAgent, in each case dated the Closing Date, and, in the case of the Guarantor form and the Company, as substance satisfactory to (i) and (ii) below and, in the case of the Trust, as to (i) belowAgent:
(ia) this Amendment executed by Borrower, Guarantors, Agent and at least the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing DateRequired Lenders;
(iib) an Officer’s Certificate from each of Borrower and each Guarantor certifying as to incumbency of officers, that since the date of the Interim Financial Statements (as defined belowcertificate delivered to Agent and the Lenders in connection with the closing of the Credit Agreement except for Borrower’s bylaws that are attached to its Officer’s Certificate and LandTel Communications, L.L.C.’s articles of organization attached to its Officer’s Certificate under this Section 2(b), there has been no material adverse change in the condition changes to its certificate of incorporation (financial or otherequivalent thereof) and its bylaws (or equivalent thereof), earnings, business or assets and that the resolutions adopted in connection with the closing of the GuarantorCredit Agreement have not been amended, the Company rescinded or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business revoked (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same other than with respect to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior officer appointments made subsequent to the Closing Date, if applicable) and remain in full force and effect;
(c) Certificates of Existence and Good Standing of Borrower and each Guarantor from its respective jurisdiction of incorporation;
(d) Agent shall have received from Borrower, for the Guarantoraccount of each Lender that executes and delivers a signature page hereto to Agent by noon (CST) on or before February 23, 2016 (each such Lender, a “Consenting Lender”, and collectively, the Company and the Trust shall have furnished “Consenting Lenders”), an amendment fee in an aggregate amount equal to $100,000 to be allocated to the Purchaser Consenting Lenders on a pro rata basis among (i) the aggregate Revolving Commitments of such Consenting Lender and its counsel (ii) the outstanding principal amount of the Term Loans held by such further information, certificates and Consenting Lender; and
(e) such other documents as the Purchaser or its counsel Agent may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Credit Agreement (RigNet, Inc.)
Conditions. The obligations issuance, amendment or extension of the parties under this Purchase Agreement are any Facility Letter of Credit is subject to the satisfaction in full of the following conditionsconditions on the Issuance Date:
(i) the Borrower shall have delivered to the Issuer at such times and in such manner as the Issuer may reasonably prescribe a Reimbursement Agreement and such other documents and materials as may be reasonably required pursuant to the terms thereof, and the proposed Facility Letter of Credit shall be reasonably satisfactory to such Issuer in form and content;
(ii) as of the Issuance Date no order, judgment or decree of any court, arbitrator or governmental authority shall enjoin or restrain such Issuer from issuing the Facility Letter of Credit and no law, rule or regulation applicable to the Issuer and no directive from any governmental authority with jurisdiction over the Issuer shall prohibit such Issuer from issuing Letters of Credit generally or from issuing that Facility Letter of Credit;
(iii) The following statements shall be true, and the Agent and such Issuer shall have received a certificate, substantially in the form of the certificate attached hereto as Exhibit E, signed by a duly authorized officer of the Borrower dated the Issuance Date stating that:
(a) The representations and warranties contained herein shall be accurate as in Article IV of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing such Issuance Date with the same effect as if though made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either as of their part to be performed or satisfied pursuant such Issuance Date except to the Operative Documents at extent that any such representation or prior warranty is stated to the Closing Daterelate solely to an earlier date, in which case such representation or warranty is correct as of such earlier date;
(iib) since No Default or Event of Default has occurred and is continuing or would result from the date issuance, amendment or extension of such Facility Letter of Credit; and
(c) Upon the issuance, amendment or extension of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets requested Facility Letter of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Credit on such Issuance Date, the Guarantor, aggregate outstanding amount of Borrowing Base Debt shall not exceed the Company Borrowing Base as of the most recent Inventory Valuation Date; and
(iv) The Issuer and the Trust Agent shall have furnished to the Purchaser and its counsel received such further informationother approvals, certificates and opinions, or documents as the Purchaser or its counsel either may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations This Deed is conditional upon the satisfaction of the parties under this Purchase Agreement are subject to the following conditions:
(a) The representations and warranties contained herein shall be accurate as passage of resolutions at a special meeting of the date shareholders of delivery CBD (“Special Meeting”) approving or otherwise ratifying:
(i) the execution by CBD of this Deed;
(ii) the issue of the Preferred Securities.Consideration Shares to the Vendors and the Dragged Vendors as consideration for the purchase of the Sale Shares by CBD;
b(iii) Winston & ▇▇the creation of a pool of ESOP Options as more particularly set out in clause 5.2;
(iv) the appointment of ▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger▇▇▇▇▇▇, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for as new additional directors of CBD with effect from the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Completion Date;
(iiv) since the approval of fees for the directors of CBD for the forthcoming year; and
(vi) all other matters contemplated under this Deed, together with any other matters that may require approval by the NZX Main Board Listing Rules, the Companies Act 1993 and the Takeovers Code, by 5pm on 28 April 2023;
(b) Completion of the exercise of the drag-along rights in respect of the Dragged Vendors under the Company’s Shareholders’ Agreement on or before the date upon which the special meeting of CBD shareholders is held to approve the acquisition of the Interim Financial Statements Eqalis Group;
(as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
hc) The Guarantor Eqalis Group obtaining all regulatory approvals from Government Agencies and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, landlords (as the case may be) to the proposed change in shareholding of the Eqalis Group, if such approvals are required, such approvals to be forthcoming on or before the date upon which the special meeting of CBD shareholders is held to approve the acquisition of the Eqalis Group; and
(d) On or before 5pm on 7 April 2023, CBD entering into subscription arrangements with investors or underwriters, for the issue (post Completion) of not less than $4 million of new ordinary shares in CBD. The pricing of the new shares will be the lesser of $0.33 or the VWAP per CBD share on the NZX for the previous 10 Business Days prior to 7 Business Days before the Notice of Meeting (for approval of the matters set out in clause (a) above) is sent out to CBD shareholders. Such subscription and underwriting agreements shall be in a form acceptable to the parties; and
(e) On or before 5pm on 26 May 2023, CBD raising not less than $7 million of new capital (including for the avoidance of doubt amounts received pursuant to subscription agreements contemplated by such trustee clause 4.1(d)) through the issue of new ordinary fully paid shares in CBD. The pricing of the new shares will be the lesser of $0.33 or officer the VWAP per CBD share on the NZX for the previous 10 Business Days prior to 7 Business Days before the Notice of Meeting (for approval of the matters set out in any individual capacityclause (a) above) is sent out to CBD shareholders.
Appears in 1 contract
Sources: Share Sale Deed
Conditions. The obligations This Amendment shall become effective only upon satisfaction of the parties under this Purchase Agreement are subject to the following conditionsconditions precedent:
(a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Each Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received each of the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Companyfollowing documents, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed substance reasonably satisfactory to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser such Bank and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) belowits counsel:
(i) this Amendment and the Substituted Notes duly executed by the Borrower;
(ii) a certificate of the Secretary of the Borrower and each of the Guarantors, dated the date of this Amendment, attesting to all corporate action taken by such entity, including resolutions of its Board of Directors authorizing the execution, delivery and performance of this Amendment and each other document to be delivered pursuant to this Amendment, together with a certification that the certificate, articles of incorporation and the by-laws of the Borrower and each of the Guarantors have not been amended, modified, revoked or rescinded since the Closing Date;
(iii) a certificate of the Secretary of the Borrower and each of the Guarantors, dated the date of this Amendment, certifying the names and true signatures of the officers of such entity authorized to sign this Amendment and the other documents to be delivered by such entity under this Amendment;
(iv) a certificate of a duly authorized officer of the Borrower, dated the date of this Amendment, stating that the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement Article 6 are true and correct in all material respects on such date as though made on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant such date (except to the Operative Documents at extent such representation or prior warranty by its terms relates to the Closing Datedate hereof or another specific date) and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(iiv) since Guarantee Ratifications, duly executed by each Guarantor;
(vi) an opinion of counsel for the Borrower and Guarantors, dated the date of the Interim Financial Statements (as defined below)this Amendment, there has been no material adverse change in the condition form annexed hereto as Exhibit B;
(financial vii) satisfactory evidence that the Borrower and the Guarantors are duly organized, validly existing and in good standing under the laws of their respective jurisdictions of incorporation and each other jurisdiction where qualification is necessary;
(viii) such other documents, instruments, approvals, opinions and evidence as the Banks may reasonably require;
(b) the Borrower shall have paid or other), earnings, business or assets caused to be paid to the Agent for the benefit of the GuarantorBanks an amendment fee of $35,000 and all other fees required to be paid hereunder or in connection herewith, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company Agent in full all accrued fees and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any expenses of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel Agent in connection with the Operative preparation, execution and delivery of this Amendment, and the other Facility Documents and the consummation of the transactions contemplated hereby thereby;
(c) the Borrower and thereby the Guarantors shall have obtained all consents, permits and approvals (if any) required in connection with the execution, delivery and performance by the Borrower and the Guarantors of their obligations hereunder and such consents, permits and approvals shall continue in full force and effect; and
(d) all legal matters in connection with this financing shall be deemed reasonably satisfactory to be a representation the Banks and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacitytheir counsel.
Appears in 1 contract
Conditions. The obligations (a) Subject to subsection (b) below, this Amendment shall be effective on the first date that all of the parties under this Purchase Agreement are subject to the following conditions:
a) The representations and warranties contained herein conditions shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust have been satisfied (the “Company CounselEffective Date”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:):
(i) the representations and warranties of the GuarantorCompany, the Company Lenders, the Guarantors named as signatories hereto and the Trust in Administrative Agent shall have executed and delivered their respective counterparts of this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing DateAmendment;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior paid to the Closing DateAdministrative Agent, in cash or other immediately available funds, reimbursement of all outstanding fees and expenses of the Administrative Agent owing under Section 13.02 of the Credit Agreement as well as all other fees owing to the Administrative Agent arising under this Amendment, the GuarantorCredit Agreement, the Company June 2006 Waiver or any other agreement;
(iii) the Supplemental Indenture shall have become effective concurrently with this Amendment provided, that any conditions to effectiveness or consideration made available to the Holders of Notes for such Supplemental Indenture shall be made available to the Administrative Agent and the Trust shall have furnished Lenders as conditions to the Purchaser and its counsel such further informationeffectiveness of, certificates and documents or as the Purchaser or its counsel may reasonably request. If any of consideration for, this Amendment.; and
(iv) the conditions specified in the Credit Agreement which are applicable to this Section 3 Amendment shall not have been fulfilled when satisfied.
(b) The obligations of the Company under Section 2 of this Amendment and the effectiveness of Section 4 hereof are conditioned upon the holders of the Redeemable Preferred Shares of CCFC Preferred Holdings, LLC having agreed to an amendment to the Second Amended and Restated Limited Liability Company Operating Agreement of CCFC Preferred Holdings, LLC, dated as provided of October 14, 2005, which corresponds in form and substance to the amendments contained in Section 4 of this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, Amendment (as applicable) or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given is otherwise satisfactory to the Company and in its sole discretion.
(c) The effectiveness of Section 4 of this Amendment is subject to the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee satisfaction of the Trust or any officer further condition that an order of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty bankruptcy court approving CES’ assumption of the Trust and/or PPA shall have been entered in the Guarantor Proceeding and become final and non-appealable on or the Companyprior to November 13, as the case may be, and not by such trustee or officer in any individual capacity2006.
Appears in 1 contract
Conditions. 4.1 The obligations agreement of the parties under Creditor Parties contained in Clause 3.1 of this Purchase Second Supplemental Agreement are shall be subject to the following conditions:
a) The representations and warranties contained herein shall be accurate as of condition that the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser Creditor Parties shall have received in form and substance satisfactory to the opinion Security Trustee on behalf of the Lenders and their legal advisers on or before the signature hereof:
(a) a certificate of a Director of the Borrower confirming the names and offices of all the Directors and/or Officers of the Borrower, and confirming that the Borrower’s incorporation and constitutional documents have not been altered or amended since 23 March 2009;
(b) true and complete copies of the resolutions passed at a meeting of the Board of Directors of the Borrower, authorising and approving the execution of this Second Supplemental Agreement and any other document or action to which the Borrower is a party, and authorising its appropriate officer or officers or other representatives to execute the same on its behalf;
(c) the original of any power of attorney issued by the Borrower pursuant to such resolutions aforesaid;
(d) true and complete copies of the resolutions passed at a meeting of the Board of Directors of the Corporate Guarantor, authorising and approving the execution of the Second Mortgage Addendum and any other document or action to which the Corporate Guarantor is a party, and authorising its appropriate officer or officers or other representatives to execute the same on its behalf;
(e) the original of any power of attorney issued by the Corporate Guarantor pursuant to such resolutions aforesaid;
(f) certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action, approvals or consents with respect to this Second Supplemental Agreement and the Second Mortgage Addendum(including without limitation) all necessary governmental and other official approvals and consents in such pertinent jurisdictions as the Security Trustee deems appropriate;
(g) a duly executed original of this Second Supplemental Agreement and the Second Mortgage Addendum, together with evidence that the Second Mortgage Addendum has been duly registered against the Ship in accordance with the laws of the Republic of The ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for Islands;
(h) such legal opinions as the Delaware Trustee, dated Security Trustee may require in respect of the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee matters contained in this Second Supplemental Agreement and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:Second Mortgage Addendum;
(i) a duly executed confirmation from each Security Party in the representations form of Schedule 3 hereto, confirming that (notwithstanding the amendments made to the Loan Agreement pursuant to this Agreement) the Finance Documents to which it is a party and warranties its obligations thereunder remain valid and binding; and
(j) receipt by the Lenders of the Guarantor, the Company and the Trust expenses referred to in this Purchase Agreement are true and correct in all material respects on and as Clause 7.1.
4.2 The agreement of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied Creditor Parties contained in all material respects with all the agreements and satisfied in all material respects all the conditions on either Clause 3.1 of their part to this Second Supplemental Agreement shall be performed or satisfied pursuant further subject to the Operative Documents at or prior condition that the Creditor Parties shall receive evidence satisfactory to the Closing Date;
Agent of the agreement of the relevant banks and financial institutions to similar amendments (iias set out in Clause 5 hereof) since to the other loan facilities currently in place with Paragon Shipping Inc. as borrower within 90 days from the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)this Second Supplemental Agreement.
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations This Amendment shall not become effective until the date on which each of the parties under this Purchase Agreement are subject to the following conditions:
a) The representations and warranties contained herein shall be accurate as conditions is satisfied (or waived in accordance with Section 9.02 of the date of delivery of the Preferred Securities.
bCredit Agreement) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust (the “Company CounselEffective Date”), shall have delivered an opinion, dated ):
(a) the Closing Date, addressed Administrative Agent (or its counsel) has received from the Loan Parties and all of the Lenders either (1) a counterpart of this Amendment signed on behalf of such party or (2) written evidence satisfactory to the Purchaser and The Bank Administrative Agent (which may include telecopy or e-mail transmission of New York Trust Company, National Association, in substantially a signed signature page of this Amendment) that such party has signed counterparts of this Amendment,
(b) the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser Administrative Agent shall have received each of the opinion of ▇▇▇▇▇▇▇▇following, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed each in form and substance satisfactory to the PurchaserAdministrative Agent:
(1) executed security agreements from the Parent and from the Restricted Subsidiaries which are Domestic Subsidiaries, The Bank of New York Trust CompanyCSI Compressco GP Inc. and CSI Compressco Investment LLC, National Associationrespectively;
(2) executed Guaranty from the Restricted Subsidiaries which are Material Domestic Subsidiaries (amending and restating the existing Guaranty);
(3) executed collateral agency agreement from the Parent, the Delaware Trustee Restricted Subsidiaries which are Domestic Subsidiaries, CSI Compressco GP Inc. and CSI Compressco Investment LLC and GSO Tetra Holdings LP;
(4) certificates representing all of the Companyoutstanding Equity Interests owned by Parent or by any Restricted Subsidiary which are Domestic Subsidiaries, CSI Compressco GP Inc. and CSI Compressco Investment LLC (other than Equity Interests included in substantially the form set out Excluded Assets) and powers of attorney, endorsed in Annex C heretoblank, with respect to such certificates;
(5) the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Parent and each Restricted Subsidiary which are Domestic Subsidiaries, CSI Compressco GP Inc. and CSI Compressco Investment LLC in such jurisdictions as the Administrative Agent may require and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by this Agreement or have been released; and
(6) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded to create or perfect the Liens intended to be created under the Security Agreements.
e(c) The Purchaser the Administrative Agent shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee such documents and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser Administrative Agent or its counsel may reasonably requestrequest relating to the organization, existence and good standing of the Parent and the Restricted Subsidiaries which are Domestic Subsidiaries, CSI Compressco GP Inc. and CSI Compressco Investment LLC, the authorization of the execution, delivery and performance of this Amendment and the related Loan Documents by the Parent and the Restricted Subsidiaries which are Domestic Subsidiaries, CSI Compressco GP Inc. and CSI Compressco Investment LLC and any other legal matters relating to this Amendment. If any of The Administrative Agent shall give, or cause to be given, prompt notice to the Parent and the Lenders as to whether the conditions specified in this Section 3 shall not the immediately preceding sentence have been fulfilled when satisfied by the deadline set forth therein and as provided in this Purchase Agreement, this Purchase Agreement and all shall specify the Purchaser’s obligations hereunder Effective Date; such notice may be canceled atoral, or at any time prior totelephonic, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing written (including faxed) or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacitye-mail.
Appears in 1 contract
Conditions. The obligations of the parties under this Purchase Agreement are Commitment shall be subject to the following conditions:
: (a) The representations the negotiation, execution, and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company definitive agreements and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed documents that are reasonably acceptable to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee Prides and the Company, including the Purchase Agreement, an investor rights agreement and certificates of designations (collectively, the “Definitive Agreements”), relating to the issuance of the New Preferred Stock and other related matters (which will reflect the terms and conditions set forth in substantially the form Term Sheet), (b) satisfaction of the other conditions set out forth on Annex B to this Commitment Letter, (c) receipt of all required governmental consents and approvals necessary in Annex C hereto.
connection with the issuance of the New Preferred Stock, (d) the closing of the Acquisition on the terms and conditions of the Acquisition Agreement without amendment or waiver of any provision or condition thereof unless such amendment or waiver is not materially adverse to Prides or Prides consents to such amendment or waiver and (e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each prior or contemporaneous consummation of the Guarantor debt and equity financings on the terms and conditions described in (i) the Commitment Letter (the “Senior Commitment”) between General Electric Capital Corporation (the “Senior Lender”) and the Company shall have furnished to dated the Purchaser a certificate of date hereof, (ii) the Guarantor Commitment Letter (the “Subordinated Commitment” and together with the Senior Commitment, the “Financing Commitments”) dated the date hereof between Sankaty Advisors, LLC and Falcon (the “Subordinated Lenders” and together with the Senior Lender, the “Lenders”) and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(iiii) the representations and warranties of Commitment Letter (the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, “BCV Commitment”) between BCV and the Company dated the date hereof, and otherwise on terms reasonably satisfactory to Prides, provided that any modification, change or amendment to the terms or conditions of the Financing Commitments or the BCV Commitment that is not materially adverse to Prides shall not constitute a failure to satisfy this condition. The Company hereby represents and warrants that it has provided Prides with correct and complete copies of the Financing Commitments with the Lenders referred to therein and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)BCV Commitment.
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations of the parties under this Purchase Agreement are subject to the following conditions:
a) The representations and warranties contained herein This Amendment shall be accurate effective as of the Amendment Effective Date, provided the following conditions precedent are satisfied:
(a) Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the date of delivery the Amendment) and each in form and substance satisfactory to Administrative Agent and its legal counsel:
(i) executed counterparts of this Amendment and all other documents and instruments requested by Administrative Agent, sufficient in number for distribution to each Lender and Borrower;
(ii) a corporate certificate with resolutions in the Preferred Securities.form required by Administrative Agent;
b(iii) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, the Company and the Trust a favorable written opinion (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto Administrative Agent and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, Lenders and dated the Closing Amendment Effective Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware TrusteeBorrower, dated substantially in the Closing Dateform of Annex 1 attached to this Amendment, addressed covering such matters relating to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee Borrower and the Company, in substantially Subsidiaries and this Amendment as the form set out in Annex C hereto.
e) The Purchaser Administrative Agent shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Companyrequest, and the Trust shall have furnished Borrower hereby requests such counsel to deliver such opinion;
(iv) such other certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Credit Party as Lender may require evidencing the Purchaser identity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Amendment and the other Loan Documents to which such Credit Party is a certificate party; and
(v) fully executed originals of the Trust, signed by an Administrative Trustee Ratification of the Trust, in each case dated the Closing Date, andand Amendment to Security Agreement and Release and Ratification of and Amendment to Subsidiary Guaranty, in the case forms set forth on Schedules “1-A” and “1-B”, respectively, attached hereto, for each party thereto (collectively the “Ratifications”);
(b) Administrative Agent’s receipt of such other assurances, certificates, documents, consents, and opinions as Administrative Agent reasonably may require;
(c) Borrower shall have paid to Administrative Agent, for payment to the Guarantor and the CompanyLenders, as to (i) and (ii) below and, loan fees in the case amount of five (5) basis points times the Trustamount of each Lender’s Commitment, as to (i) below:for a total of $37,500.00; and
(id) the representations unless waived by Administrative Agent, Borrower shall have paid all fees, expenses and warranties disbursements of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed any law firm or satisfied pursuant other external counsel for Administrative Agent to the Operative Documents at or extent invoiced prior to the Closing Date;
date hereof, plus such additional amounts of such fees, expenses and disbursements as shall constitute its reasonable estimate thereof incurred or to be incurred by it through the closing proceedings as to this Amendment (ii) since the date provided that such estimate shall not thereafter preclude a final settling of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”accounts between Borrower and Administrative Agent).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Credit Agreement (Matrix Service Co)
Conditions. The 8.1 This Agreement and the respective rights and obligations of the parties under to this Purchase Agreement are subject to the following conditionsconditional upon:
(a) The there having been, as at the Closing Date, no material adverse change or development involving a prospective material adverse change in the condition (financial or otherwise), business prospects, properties or results of operations of the Issuer, the Guarantor, the Group, PLDT or the PLDT Group since the date of this Agreement and no event making any of the representations and warranties contained herein shall in subclause 6.1 or subclause 6.2 untrue or incorrect in any material respect on the Closing Date as though they had been given and made on such date and the Issuer and the Guarantor each having performed all the obligations to be accurate as of performed by it under this Agreement on or before the date of delivery of the Preferred Securities.Closing Date;
(b) Winston & ▇▇▇▇▇▇ LLP, counsel for the Guarantor, delivery to the Company and Managers on or before the Trust Closing Date of:
(the “Company Counsel”), shall have delivered an opinion, i) legal opinions dated the Closing Date, addressed to Date in such form and with such contents as the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto Manager and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel Trustee may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of require from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Date, addressed as Bermudan and Cayman Islands law legal advisers to the Purchaser Issuer and The Bank of New York Trust Companythe Guarantor, National Associationfrom De Brauw Blackstone Westbroek as Dutch law legal advisers to Larouge, in substantially from Linklaters as English law legal advisers to the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇Guarantor and from ▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed Overy as legal advisers to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee Manager and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since a certificate signed by a duly authorised officer of the Issuer with regard to the Issuer and a certificate signed by a duly authorised officer of the Guarantor each in the form attached as Schedule 2;
(iii) on the date of this Agreement, the Interim Financial Statements Publication Date (if different from the date of this Agreement) and the Closing Date there shall have been delivered to the Manager comfort letters dated the date of this Agreement, the Publication Date (if different from the date of this Agreement) and the Closing Date from Ernst & Young as auditors of the Guarantor and SyCip Gorres Velayo & Co. as auditors of PLDT in a form satisfactory to the Manager; and
(iv) any resolutions, consents and authorities of the Issuer, the Guarantor and Larouge relating to the issue of the Notes and the deposit of the Shares (subject to any Stock Lending Arrangement) with the Custodian;
(v) the consent letter from NTT Communications Corporation;
(c) the Singapore Stock Exchange agreeing to list the Notes;
(d) the execution of the Trust Deed, the Agency Agreement, Larouge Loan Agreement, the Novation Agreement and the GMLSA by the parties thereto on or before the Closing Date; and
(e) the Issuer or, failing whom the Guarantor procuring the deposit with the Custodian sufficient Shares to satisfy the Exchange Rights (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of Terms and Conditions) relating to the Guarantor, Notes at the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)Closing Date subject to any Stock Lending Arrangement.
h) The Guarantor and 8.2 In the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If event that any of the conditions specified set out in subclause 8.1 is not satisfied on or before their respective dates, this Section 3 Agreement shall not have been fulfilled when (subject as mentioned below) terminate and the parties hereto shall (except for the liability of the Issuer and the Guarantor in relation to expenses as provided under, or under any arrangements referred to in, Clause 5 and except for any liability arising before or in relation to such termination) be under no further liability arising out of this Purchase Agreement, this Purchase Agreement provided that the Manager may in its discretion and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given notice to the Company Issuer and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by Guarantor waive satisfaction of any trustee of the Trust above conditions or of any officer part of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacitythem.
Appears in 1 contract
Sources: Subscription Agreement (First Pacific Company LTD /Fi)
Conditions. The obligations of the parties Lenders to make the Loans under this Purchase the Credit Agreement are subject with respect to the First Amendment shall not become effective until the date on which each of the following conditionsconditions is satisfied (the "First Amendment Effective Date"):
a. The Agent shall have received from the Lenders required by the Credit Agreement and the Borrower executed counterparts (in such number as may be requested by the Agent) of (i) this First Amendment and all schedules, exhibits and annexes to the foregoing, (ii) that certain Reaffirmation of Security Instruments dated December 21, 2007, executed by each Loan Party, (iii) Merger Sub and each of its subsidiaries shall have executed a joinder to the Guaranty and Collateral Agreement, in faun and substance satisfactory to the Agent, and (iv) the Agent shall have received a mortgage with respect to all real property acquired in connection with the Mako Acquisition, if applicable.
b. The following transactions shall have been consummated, in each case on terms and conditions satisfactory to the Lenders:
a(i) the Mako Acquisition;
(ii) the Agent shall have received a certificate, executed by an Authorized Officer, certifying that the Mako Acquisition is being consummated simultaneously with the closing of the First Amendment in accordance with the terms and conditions of the Mako Acquisition as set forth in the Mako Acquisition Documents, without amendment modification or waiver thereof without the prior written consent of the Lenders;
(iii) The representations Mako Agreement and warranties contained herein Plan of Merger shall have been filed and recorded with each of the Secretary of State of Louisiana and the Secretary of State of Nevada and the Mako Agreement and Plan of Merger shall have an effective date concurrent with the First Amendment Effective Date; and
(iv) The Agent shall have received the certificates representing the shares of Capital Stock pledged pursuant to the Guaranty and Collateral Agreement (including those shares of Capital Stock received in connection with the Mako Acquisition and of the Merger Sub), together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof.
c. The Agent and the applicable Lenders shall have received all fees and other amounts due and payable in connection with this First Amendment on or prior to the First Amendment Effective Date.
d. The Agent shall have received (i) a favorable written opinion (addressed to the Agent and the Lenders and dated the First Amendment Effective Date) of counsel for the Borrower, in form and substance satisfactory to the Agent (ii) each legal opinion delivered in connection with the Mako Acquisition, accompanied by a reliance letter in favor of the Lenders and (iii) such legal opinions as Agent requests regarding the effectiveness of the Mako Acquisition. Each such legal opinion shall cover such other matters incident to the transactions contemplated by this First Amendment as the Agent may require.
e. No Default or Event of Default shall have occurred and be continuing, before and after giving effect to the terms of this First Amendment.
f. There shall not exist any action, suit, investigation, litigation or proceeding or other legal or regulatory developments, pending or threatened in any court or before any arbitrator or Governmental Authority that, in the reasonable opinion of the Agent, singly or in the aggregate, materially impairs any of the transactions contemplated by the Loan Documents, or that could have a Material Adverse Effect.
g. Each Loan Party shall have obtained all authorizations, approvals or other actions by, and submitted all notices to or filings with, any Governmental Authority and shall have obtained all consents of other Persons, in each case that are necessary or advisable in connection with the transactions contemplated by the Loan Documents and the Mako Acquisition Documents and each of the foregoing shall be accurate in full force and effect and in form and substance reasonably satisfactory to the Agent. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Loan Documents or the Mako Acquisition Documents or the financing thereof and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable agency to take action to set aside its consent on its own motion shall have expired.
h. The Agent shall have completed its business, legal and collateral due diligence with respect to the Borrower, each Person that is a party to any Mako Acquisition Document and each other Loan Party, the results of which shall be acceptable to the Agent, in its sole and absolute discretion.
i. All proceedings in connection with the making of the Loans and the other transactions contemplated by this First Amendment, the other Loan Documents and the Mako Acquisition Documents, and all documents incidental hereto and thereto, shall be satisfactory to the Agent and its counsel, in their sole discretion, and the Agent and such counsel shall have received all such information and such counterpart originals or certified or other copies of such documents as the Agent or such counsel may reasonably request.
j. The Agent shall have received UCC lien searches, listing all effective financing statements which name as debtor any Loan Party or any Person that is a party to any Mako Acquisition Document or any of their respective Subsidiaries and which arc filed in the offices where any Loan Party or any such Person is organized, together with copies of such financing statements, none of which, except as otherwise agreed in writing by the Agent and except for Liens to be terminated on the First Amendment Effective Date, shall cover any of the Collateral or any of the property to be acquired in connection with the Mako Acquisition Documents and the results of searches for any tax Lien and judgment Lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Agent, shall not show any such Liens.
k. The Agent shall have received satisfactory written evidence that prior to or concurrent with the Effective Time (as defined in the Mako Agreement and Plan of Merger), all Indebtedness of Mako and its subsidiaries shall be paid in fill and extinguished.
1. The Agent shall have received a copy of the resolutions of each Loan Party, certified as of the date First Amendment Effective Date by an Authorized Officer thereof, authorizing (A) the borrowings hereunder and the transactions contemplated by the Loan Documents to which such Loan Party is or will be a party and the other Transactions, and (B) the execution, delivery and performance by such Loan Party of each Loan Document and each Mako Acquisition Document to which such Loan Party is or will be a party and the execution and delivery of the Preferred Securitiesother documents to be delivered by such Person in connection herewith and therewith.
m. The Agent shall have received a certificate of an Authorized Officer of each Loan Party, certifying the names and true signatures of the representatives of such Loan Party authorized to sign each Loan Document to which such Loan Party is or will be a party and the other documents to be executed and delivered by such Loan Party in connection herewith and therewith, and authorized to provide the Notice of Borrowing and all other notices under this First Amendment and the other Loan Documents, together with evidence of the incumbency of such authorized officers.
n. The Agent shall have received a certificate of the appropriate official(s) of the state of organization and each state of foreign qualification of each Loan Party and of each Person that is a party to any Mako Acquisition Document and each of their subsidiaries, certifying as of a recent date as to the subsistence in good standing of, and the payment of taxes by, such Loan Party in such states.
o. The Agent shall have received a copy of the articles of incorporation, charter and by-laws, limited liability company agreement, operating agreement, agreement of limited partnership or other organizational document of each Loan Party, Mako and of Merger Sub, together with all amendments thereto, certified as of the First Amendment Effective Date by an Authorized Officer of such Loan Party.
p. The Agent shall have received a certificate of an Authorized Officer of the Borrower, certifying as to the matters set forth in subsection (b) Winston & ▇▇▇▇▇▇ LLPof this Section 3.
q. The Agent shall have received a copy of the unaudited pro form consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at November 30, counsel for 2007 (including the Guarantor, the Company and the Trust notes thereto) (the “Company Counsel”"Pro Forma Balance Sheet"), prepared giving effect (as if such events had occurred on such date) to (i) the consummation of the Mako Acquisition and (ii) the payment of fees and expenses in connection with the foregoing, and (ii) unaudited interim consolidated financial statements of Borrower and its consolidated subsidiaries for each fiscal month and quarter ended after the date of the latest applicable fmancial statements delivered pursuant to the Credit Agreement as to which such financial statements are available, and such financial statements shall not, in the judgment of the Lenders, reflect any material adverse change in the consolidated financial condition of the Borrower and its consolidated subsidiaries, since the most recently delivered financial statements.
r. The Agent shall have delivered received a certificate of an opinionAuthorized Officer of the Borrower, dated certifying that (i) the Closing Borrower and each Loan Party, both before and after giving effect to the Transactions, is Solvent and (ii) as of the First Amendment Effective Date, addressed to all liabilities of the Purchaser and Loan Parties are current.
s. The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company Agent shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees received evidence of the Guarantor, the Company and the Trust and insurance coverage required by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinionsSection 5.19, including, without limitation, insurance assigned to the Legal Opinion Accord Borrower pursuant to the terms of the ABA Section Guaranty and Collateral Agreement and such other insurance coverage with respect to the business and operations of Business Law the Loan Parties as the Agent may reasonably request, in each case, where requested by the Agent, with such endorsements as to the named insureds or loss payees thereunder as the Agent may request and providing that such policy may be terminated or canceled (1991)by the insurer or the insured thereunder) only upon 30 days' prior written notice to the Agent and each such named insured or loss payee, together with evidence of the payment of all premiums due in respect thereof for such period as the Agent may request.
c) t. The Purchaser Agent shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLPreceived a landlord waiver, dated the Closing Date, addressed in form and substance satisfactory to the Purchaser and The Bank Agent, executed by each landlord with respect to each of New York Trust Companythe Leases acquired in connection with the Mako Acquisition, National Association, in substantially the form set out in forth on Annex B hereto; provided that in the event the Borrower, despite its commercially reasonable efforts to do so, is unable to deliver to the Agent on the First Amendment Effective Date one or more of the landlord waivers required to be delivered under this Section 4(u), the Borrower shall deliver such landlord waiver or waivers to the Agent within twenty-one (21) days after the First Amendment Effective Date.
d) u. The Purchaser Agent shall have received copies of the opinion Material Contracts of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for each Loan Party as in effect on the Delaware Trustee, dated the Closing Date, addressed First Amendment Effective Date (to the Purchaserextent the same have not previously been delivered to Agent), The Bank certified as true and correct copies thereof by an Authorized Officer of New York Trust Companyeach Loan Party, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser together with a certificate of the Guarantor and the Companyan Authorized Officer of each Loan Party stating that such agreements have been duly assigned to such Loan Party, as applicable, signed remain in full force and effect and that none of the Loan Parties has breached or defaulted in any of its obligations under such agreements.
v. The Agent shall have received each document (including any Uniform Commercial Code financing statement) required by the Chief Executive OfficerGuaranty and Collateral Agreement or any Mortgage or under law or requested by the Agent to be filed, President registered or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer recorded in order to create in favor of the CompanyAgent, for the benefit of the Lenders, a perfected Lien on the Collateral described therein (including any Collateral received in connection with the Mako Acquisition), prior and the Trust superior in right to any other Person, shall be in proper form for filing, registration or recordation.
w. The Agent shall have furnished received a copy of a fully-executed payoff letter from Regions Bank to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
Borrower evidencing (i) the representations and warranties payoff of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(ii) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date amounts due by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust Borrower or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel other Loan Party in connection with the Operative Documents credit facility between. Regions Bank and the transactions contemplated hereby Borrower, (ii) the termination of all commitments under such credit facility and thereby (iii) the releases of all liens in favor of Regions Bank pursuant to such credit facility.
x. The Agent shall be deemed have received such other agreements, instruments, approvals, opinions and other documents, each satisfactory to be a representation the Agent in tbiin and warranty of the Trust and/or the Guarantor or the Companysubstance, as the case Agent may be, and not by such trustee or officer in any individual capacityreasonably request.
Appears in 1 contract
Sources: Credit Agreement (Deep Down, Inc.)
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment is subject to the satisfaction of the following conditionsconditions precedent, unless specifically waived by Agent:
(a) Agent shall have received the following documents, each in form and substance satisfactory to Agent:
(i) This Amendment, duly executed by Borrowers, together with the Consent and Ratification (the “Ratification”) hereto, duly executed by the Guarantors;
(ii) Officers’ Certificates dated as of the date of this Amendment, in form and substance satisfactory to Agent, certified by the Secretary of the Borrowers and the Guarantors certifying among other things, that the Borrowers’ and Guarantors’ Board of Directors have met and have adopted, approved, consented to and ratified resolutions which authorize the execution, delivery and performance by Borrowers of this Amendment, and the Guarantors of the Ratification, and each other document, instrument and agreement executed in connection with or relating to the Agreement, this Amendment or the Ratification (hereinafter individually referred to as a “Loan Document” and collectively referred to as the “Loan Documents”);
(b) The representations and warranties contained herein herein, in the Agreement, as amended hereby, and/or in each other Loan Document shall be accurate true and correct as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLPhereof, counsel for the Guarantor, the Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex A-I hereto and the Company shall have furnished to the Purchaser a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Guarantor and the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below:
(i) the representations and warranties of the Guarantor, the Company and the Trust in this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Datedate hereof;
(iic) since the date No Event of the Interim Financial Statements (as defined below)Default shall have occurred and be continuing and no Default shall exist, there unless such Event of Default or Default has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust specifically waived in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel Agent;
(d) All corporate proceedings taken in connection with the Operative Documents and the transactions contemplated hereby by this Amendment and thereby all documents, instruments and other legal matters incident thereto, shall be deemed satisfactory to Agent; and
(e) Borrowers shall pay to Agent a closing fee of U.S. $10,000.00, which fee shall be a representation due and warranty payable in full upon execution of the Trust and/or the Guarantor or the Company, as the case may be, and not by such trustee or officer in any individual capacitythis Amendment.
Appears in 1 contract
Sources: Loan and Security Agreement (Pioneer Companies Inc)
Conditions. The obligations This Agreement shall not become effective until each of the following conditions is satisfied (the date, if any, on which such conditions shall have first been satisfied being referred to herein as the “Amendment Effective Date”):
(a) the Administrative Agent shall have received duly executed copies of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) this Agreement, executed by each of the parties under this Purchase Agreement are subject to hereto (including all of the following conditions:Lenders as of the Amendment Effective Date);
a(ii) The representations that certain amendment and warranties contained herein shall be accurate assignment, dated as of the date of delivery of the Preferred Securities.
b) Winston & ▇▇▇▇▇▇ LLPhereof, counsel for the Guarantoramong Wilmington Trust, the Company and the Trust National Association (the “Company CounselWT”), BofA, Scotia and the Requisite Secured Parties (as defined in the Intercreditor Agreement), relating to the Intercreditor Agreement and the Security Agreement;
(iii) that certain amendment and assignment, dated as of the date hereof, among the Borrower, State Street as Custodian, BofA, WT, and Scotia, relating to the Control Agreement;
(iv) the Lender Fee Letter;
(v) the Agent Fee Letter;
(vi) a Federal Reserve Form for each of Scotia and State Street; and
(vii) a Beneficial Ownership Certification and a Canadian form of beneficial ownership certification from the Borrower;
(b) the Administrative Agent shall have delivered an opinion, dated the Closing Date, addressed received Uniform Commercial Code search reports relating to the Purchaser Borrower from all applicable jurisdictions;
(c) the Administrative Agent shall have received proper UCC-3 financing statement amendments of the filed UCC-1 financing statements listing the Borrower as debtor and The Bank of New York Trust CompanyBofA as secured party that change the secured party to WT as Collateral Agent and updating the collateral description as necessary in accordance with the transactions contemplated under the documents set forth in Section 6(a), National Association, which UCC-3 financing statement amendments shall be in substantially the form set out in attached as Annex A-I hereto and E hereto;
(d) the Company Administrative Agent shall have furnished to the Purchaser received a certificate signed by the Company’s Chief Executive Officer, President, a Senior Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees legal opinion from each of the Guarantor, the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaseri) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
c) The Purchaser shall have been furnished the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex B hereto.
d) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A.LLP, special Delaware New York counsel for the Delaware Trustee, dated the Closing Date, addressed to the PurchaserBorrower, The Bank of New York Trust Company, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
e(ii) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special local Maryland counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
f) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and The Bank of New York Trust Company, National Association, in substantially the form set out in Annex E hereto.
g) Each of the Guarantor and the Company shall have furnished to the Purchaser a certificate of the Guarantor and the Company, as applicable, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the TrustBorrower, in each case dated addressed to the Closing Date, andAdministrative Agent and the Secured Parties (as defined in the Intercreditor Agreement) as to such matters as the Administrative Agent shall have reasonably requested in form and scope reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent and the Assignor Agent shall have received a certificate signed by a Responsible Officer of the Borrower, in all respects satisfactory to the case of the Guarantor and the CompanyAdministrative Agent, as to (i) certifying as to the incumbency of authorized persons of the Borrower executing this Agreement and the other documents listed in Section 6(a), (ii) below and, in the case of the Trust, certifying as to (i) below:
(i) the representations and warranties of the Guarantor, Borrower contained in Article 4 of the Company Credit Agreement and the Trust in this Purchase Agreement are true other Credit Documents, (iii) attaching true, complete and correct in all material respects on and as copies of the Closing Date with resolutions duly adopted by the same effect as if made on governing body of the Closing Date, Borrower approving this Agreement and the Company and the Trust have complied other documents listed in all material respects with all the agreements and satisfied in all material respects all the conditions on either of their part to be performed or satisfied pursuant to the Operative Documents at or prior to the Closing Date;
(iiSection 6(a) since the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Guarantor, the Company or their subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
h) The Guarantor and the Company shall have executed the Parent Guarantee Agreement and delivered same to The Bank of New York Trust Company, National Association, as Guarantee Trustee.
i) Prior to the Closing Date, the Guarantor, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Guarantor or the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby thereby, all of which are in full force and effect on the date hereof, (iv) certifying that the Borrower’s Organization Documents have not been amended, supplemented or otherwise modified since April 7, 2017 or, if so, attaching true, complete and correct copies of each such amendment, supplement or modification, and (v) certifying that no Default has occurred and is continuing as of the date hereof;
(f) the representations and warranties set forth in Section 5(a) above shall be deemed to be a representation true and warranty correct on such date in all material respects;
(g) each applicable Lender shall have received from the Borrower in immediately available funds, for the account of such Lender, its Upfront Fee in accordance with the Lender Fee Letter;
(h) the Administrative Agent (and its affiliates) shall have received all fees and expenses of the Trust and/or Administrative Agent (and its affiliates) due and payable on or prior to the Guarantor Amendment Effective Date (including the reasonable fees and disbursements of counsel to the Administrative Agent) and the Assignor Agent (and its affiliates) shall have received all fees and expenses of the Assignor Agent (and its affiliates) due and payable on or prior to the Company, as Amendment Effective Date (including the case may be, reasonable fees and not disbursements of counsel to the Assignor Agent); and
(i) each Assignee Lender shall have made payment to the Assignor Lender on account of the applicable Lender Assigned Interests by such trustee or officer in any individual capacitydeposit of the appropriate amount into the account specified by the Assignor Lender.
Appears in 1 contract