EMC » Topics » SECTION 3. CONDITIONS PRECEDENT

This excerpt taken from the EMC 8-K filed Sep 18, 2006.

SECTION 3. CONDITIONS PRECEDENT

3.1. Closing Date. The obligation of the Lender to make a Loan on the Closing Date is subject to the satisfaction, or waiver in accordance with Section 9.5, of the following conditions on or before the Closing Date:

(a) Credit Documents. Administrative Agent shall have received sufficient copies of each Credit Document originally executed and delivered by the Company for each Lender.

(b) Organizational Documents; Incumbency. Administrative Agent shall have received (i) copies of the Company’s Organizational Documents, certified as of a recent date by the appropriate governmental official (to the extent applicable); (ii) signature and incumbency certificates of the officers of the Company executing the Credit Documents to which it is a party; (iii) resolutions of the Board of Directors of the Company approving and authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party, certified as of the date hereof by its secretary or an assistant secretary as being in full force and effect without modification or amendment; (iv) a good standing certificate from the applicable Governmental Authority of the Company’s jurisdiction of incorporation, organization or formation dated a recent date prior to the Closing Date; and (v) such other documents as Administrative Agent may reasonably request.

(c) Organizational and Capital Structure. The organizational structure and capital structure of the Company and its Subsidiaries, both before and after giving effect to the Acquisition, shall be in all material respects as set forth on Schedule 4.2.

(d) Governmental Authorizations and Consents. The Company shall have obtained all Governmental Authorizations and all material consents of other Persons, in each case that are necessary in connection with the transactions contemplated by the Credit Documents and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to the Administrative Agent.

(e) Opinions of Counsel to the Company. Administrative Agent shall have received originally executed copies of the written opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Company, substantially in the form of Exhibit D, dated as of the Closing Date (unless otherwise specified) (and the Company hereby instructs such counsel to deliver such opinions to the Administrative Agent).

(f) [Reserved]

(g) Closing Date Certificate. Company shall have delivered to the Administrative Agent an originally executed Closing Date Certificate, together with all attachments thereto.

(h) Closing Date. The Closing Date shall occur on or before September 20, 2006.

 

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(i) No Litigation. There shall not exist any action, suit, investigation, litigation or proceeding or other legal or regulatory developments, pending in any court or before any arbitrator or Governmental Authority that, in the reasonable opinion of Administrative Agent, that could have a Material Adverse Effect.

(j) Completion of Proceedings. All partnership, corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.

(k) Representations and Warranties. The representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of the Closing Date (except to the extent that any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall be, if otherwise qualified by materiality, true and correct or if not so qualified, true and correct in all material respects, as of such date).

(l) No Default or Event of Default. On the Closing Date, no event shall have occurred and be continuing or would result from the making of the Loans hereunder that would constitute an Event of Default or a Default.

(m) Notices. Any Notice required to be given on or prior to the Closing Date shall be executed by an Authorized Officer in a writing delivered to Administrative Agent. In lieu of delivering a Notice, the Company may give Administrative Agent telephonic notice by the required time of any proposed borrowing; provided each such notice shall be promptly confirmed in writing by delivery of the applicable Notice to Administrative Agent on or before the applicable date of borrowing. Neither Administrative Agent nor any Lender shall incur any liability to Company in acting upon any telephonic notice referred to above that Administrative Agent believes in good faith to have been given by a duly authorized officer or other person authorized on behalf of Company.

(n) Patriot Act. Company shall have provided sufficient information to the Agents and the Lender to enable the Agents and the Lender to satisfy the requirements of the USA PATRIOT ACT (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).

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