Additional Conditions to Purchaser’s Obligation to Close. Purchaser’s obligation to purchase the Purchased Assets and assume the Assumed Liabilities is subject to the satisfaction, at or prior to the Closing, of each of the following additional conditions (any of which may be waived, in whole or in part, by Purchaser): (a) Purchaser shall have received delivery of the Purchased Assets and conducted at its expense a physical count of the Purchased Assets, including inventory and equipment, on or prior to the Closing Date, which Seller may observe; (b) Seller shall have received the third-party consents, approvals and/or authorizations listed on Schedule 4.3; (c) Purchaser shall have received a certificate of a duly authorized officer of Seller certifying: (i) as complete and accurate as of the Closing, attached copies of Seller’s Charter Documents; and (ii) all requisite resolutions or actions of Seller’s equityholder and/or board of directors approving the sale of the Purchased Assets, approving a change in Seller’s name to a name acceptable to Purchaser, terminating Seller’s trade name reservations, together with such executed documents as shall be required to change Seller’s name and terminate such foreign qualifications and trade name reservations (and appointing Purchaser as Seller’s attorney-in-fact for the purpose of filing such documents with appropriate Governmental Authorities); (d) Purchaser shall have received a fully executed Landlord Agreement and Waiver, each in a form and substance satisfactory to Purchaser, with respect to each Leased Property; (e) Purchaser shall have received a good standing certificate or equivalent for Seller as of the most recent practicable date from the Secretary of State of Delaware and from each other state in which Seller is qualified to do business; (f) Purchaser shall have received a non-foreign person affidavit that complies with the requirements of Code §1445 from Seller; (g) Except as otherwise agreed by Purchaser in writing, Seller shall have delivered to Purchaser pay-off letters for the Payable Funded Indebtedness in a form reasonably acceptable to Purchaser; (h) Purchaser shall have received a fully executed assignment of Intellectual Property Rights from the Seller; and (i) Purchaser shall have received all other documents reasonably required by Purchaser to consummate the transactions contemplated hereby.
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Additional Conditions to Purchaser’s Obligation to Close. Purchaser’s The obligation of Purchaser to purchase the Purchased Assets and assume the Assumed Liabilities Acquired Shares is subject to the satisfaction, at or prior to the Closing, of each of the following additional conditions (any of which may be waived, in whole or in part, by Purchaser):
(a) Purchaser there shall have received delivery be no suit, action, investigation, claim or proceeding pending or threatened by any Person asserting that such Person is the holder or beneficial owner of any Capital Stock of any Company or either Seller or is entitled to all or any portion of the Purchased Assets Purchase Price and conducted at its expense a physical count of the Purchased Assetsno injunction, including inventory and equipmentjudgment, on order, decree or prior ruling with respect to the Closing Date, which Seller may observeforegoing shall be in effect;
(b) Seller the Equityholders shall have received the third-party consentsauthorizations, consents or approvals and/or authorizations listed on Schedule 4.3Schedules 5.3, 6.2 and 6.3;
(ci) Subject to Section 8.2(c)(ii), the representations and warranties of each Equityholder contained in this Agreement and the Transaction Documents shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Change) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Change) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects) without giving effect to any supplement to the Schedules; (ii) the Fundamental Representations and the representations and warranties in Section 5.7 (Financial Statements) shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects) without giving effect to any supplement to the Schedules; (iii) the Equityholders and each Company shall have performed or caused to have been performed, in all material respects, all of the covenants and agreements required by this Agreement to be performed by the Equityholders or the subject Company at or prior to the Closing; and (iv) Purchaser shall have received a certificate executed by each of the Individuals, dated as of the Closing Date, stating that each of the conditions specified above in clauses (i), (ii) and (iii) is satisfied;
(d) no Material Adverse Change shall have occurred since the date of this Agreement and be continuing as of the Closing;
(e) the Equityholders shall have delivered to Purchaser a duly authorized officer good faith preliminary draft of Seller certifyingthe Closing Balance Sheet;
(f) each individual counterparty thereto shall have delivered to Purchaser a counterpart signature page to his respective: (i) Employment Offer Letter consistent with that certain letter of intent entered into among certain of the parties hereto on December 5, 2014 (the “LOI”), (ii) Key Employee Noncompetition Agreement and/or (iii) Individual Noncompetition Agreement consistent with the LOI, in each case, in a form and substance satisfactory to Purchaser;
(g) Purchaser shall have received a fully executed copy of: (i) an estimating contract among Alpha, Alpha Company and Professional Estimation Surveys, LLC, a Georgia limited liability company (“PES”), and (ii) a subcontract between PES and Univab Private Limited, a company formed under the Companies Act of India, in each case, in a form and substance satisfactory to Purchaser;
(h) Purchaser shall have received a counterpart signature page to a Release Agreement from each of Xxxxxxx Xxxxxx and Xxxxx Xxxxx, in a form and substance satisfactory to Purchaser.
(i) Purchaser shall have received a certificate from the secretary of each Company certifying as complete and accurate as of the Closing, attached copies of Sellersuch Company’s Charter Documents; and (ii) all requisite resolutions or actions of Seller’s equityholder and/or board of directors approving the sale of the Purchased Assets, approving a change in Seller’s name to a name acceptable to Purchaser, terminating Seller’s trade name reservations, together with such executed documents as shall be required to change Seller’s name and terminate such foreign qualifications and trade name reservations (and appointing Purchaser as Seller’s attorney-in-fact for the purpose of filing such documents with appropriate Governmental Authorities);
(dj) Purchaser shall have received a the written resignations, effective as of the Closing, of each officer and director of each Company;
(k) Purchaser shall have received fully executed Landlord Agreement and Waiveramendments to certain of the Leases, each in a form and substance satisfactory to Purchaser, with respect to each Leased Property;
(el) each Company shall have delivered to Purchaser a fully executed Landlord Agreement and Waiver in regard to each of the Leased Properties, in a form and substance satisfactory to Purchaser;
(m) each Company shall have delivered to Purchaser fully executed Estoppel Certificates in regard to each of the Leased Properties, in a form and substance satisfactory to Purchaser;
(n) Purchaser shall have received and approved, in Purchaser’s sole discretion, an environmental assessment for each of the Leased Properties;
(o) the Equityholders shall have delivered to Purchaser the original minute books and equity ledgers of each Company, if any;
(p) the Equityholders shall have delivered to Purchaser all certificates for the Acquired Shares, duly endorsed for transfer or accompanied by a duly executed instrument of assignment and transfer for the Acquired Shares;
(q) Purchaser shall have received a good standing certificate or equivalent for Seller each Company as of the most recent practicable date from the Secretary of State of Delaware Georgia and Texas, as applicable, and from each other state in which Seller each Company is qualified to do business;
(fr) Equityholders’ Representative shall have caused the owner (if a non-Company) of each Company’s domain name and website to execute documents necessary to transfer ownership and control thereof to Purchaser or its Affiliates;
(s) all intercompany accounts, notes and receivables due to any Company from any other Company, the Equityholders, or any employees, Service Providers, managers, officers or directors of any Company (and any of their respective Affiliates) shall have been repaid in full;
(t) Purchaser shall have conducted at its expense a physical count of inventory and equipment of each Company on or prior to the Closing Date, which each Company may observe;
(u) Purchaser shall have received a non-foreign person affidavit that complies with the requirements of Code §1445 of the Code from Sellereach Equityholder;
(gv) Except except as otherwise agreed by Purchaser in writing, Seller each Company shall have delivered to Purchaser pay-off letters for the Payable Funded Indebtedness releases of all Liens and Uniform Commercial Code termination statements from such Company’s secured lenders and lienholders in a form reasonably acceptable to Purchaser;
(hw) Purchaser shall have received a fully executed assignment evidence, reasonably satisfactory to it, that Alpha Insulation & Waterproofing Services Company of Intellectual Property Rights from Puerto Rico has been dissolved;
(x) Purchaser shall have received evidence, reasonably satisfactory to it, that the SellerPre-Closing Reorganization has occurred;
(y) without the prior written consent of Purchaser, neither the Equityholders nor any Company shall, with respect to any Company, have: (i) made, changed or rescinded any Tax election; (ii) amended any Tax Return; or (iii) taken any position on any Tax Return, taken any other action, omitted to take any action, or entered into any transaction that had the effect of materially increasing the Tax liability or reducing any Tax asset in respect of any Post-Closing Tax Period; and
(iz) Purchaser shall have received all other documents reasonably required by Purchaser to consummate the transactions contemplated hereby.
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Samples: Share Purchase Agreement (Installed Building Products, Inc.)
Additional Conditions to Purchaser’s Obligation to Close. Purchaser’s obligation to purchase the Purchased Assets and assume the Assumed Liabilities is subject to the satisfaction, at or prior to the Closing, of each of the following additional conditions (any of which may be waived, in whole or in part, by Purchaser):
(a) Purchaser shall have received delivery of the Purchased Assets and conducted at its expense a physical count of the Purchased Assets, including inventory and equipment, on or prior In addition to the Closing Date, which Seller may observe;
(b) Seller shall have received the third-party consents, approvals and/or authorizations listed on Schedule 4.3;
(c) Purchaser shall have received a certificate of a duly authorized officer of Seller certifying: (i) as complete and accurate as of the Closing, attached copies of Seller’s Charter Documents; and (ii) all requisite resolutions or actions of Seller’s equityholder and/or board of directors approving the sale of the Purchased Assets, approving a change in Seller’s name to a name acceptable to Purchaser, terminating Seller’s trade name reservations, together with such executed documents as shall be required to change Seller’s name and terminate such foreign qualifications and trade name reservations (and appointing Purchaser as Seller’s attorney-in-fact for the purpose of filing such documents with appropriate Governmental Authorities);
(d) Purchaser shall have received a fully executed Landlord Agreement and Waiver, each in a form and substance satisfactory to Purchaser, with respect to each Leased Property;
(e) Purchaser shall have received a good standing certificate or equivalent for Seller as of the most recent practicable date from the Secretary of State of Delaware and from each other state in which Seller is qualified to do business;
(f) Purchaser shall have received a non-foreign person affidavit that complies with the requirements of Code §1445 from Seller;
(g) Except as otherwise agreed by Purchaser in writing, Seller shall have delivered to Purchaser pay-off letters for the Payable Funded Indebtedness in a form reasonably acceptable to Purchaser;
(h) Purchaser shall have received a fully executed assignment of Intellectual Property Rights from the Seller; and
(i) Purchaser shall have received all other documents reasonably required by conditions set forth herein, the obligation of Purchaser to consummate the transactions contemplated herebyhereunder shall be contingent on the following:
(i) Seller’s representations and warranties contained herein shall be true, correct and complete in all material respects as of the Closing Date;
(ii) As of the Closing Date, the Seller shall have performed its obligations hereunder and all deliveries to be made by Seller at Closing have been tendered;
(iii) At no time on or before the Closing Date shall any of the following have occurred with respect to Seller and/or XXX Stores: (1) the commencement of a case under Title 11 of the U.S. Code, or under any other applicable federal or state bankruptcy or similar law; (2) the appointment of a trustee or receiver of any property interest; (3) an assignment for the benefit of creditors; (4) an attachment, execution or other judicial seizure of a substantial property interest; or (5) a dissolution or liquidation;
(iv) [Intentionally omitted];
(v) [Intentionally omitted];
(vi) The Title Company shall be ready and willing to deliver to Purchaser owner’s title policies in the form required by the Title Commitments in Section 3.3 above in the amount of the Purchase Price, subject only to the Permitted Exceptions, with the endorsements reasonably requested by Purchaser (the “Owner’s Title Policies”); and
(vii) This Agreement shall not have been terminated with respect to fifteen (15) or more of the twenty-five (25) Properties identified on Schedule 3.6(a)(vii) hereto by (A) Purchaser pursuant to terms and conditions of this Agreement, or (B) Seller pursuant to Section 3.3(h) .
(b) If any of the conditions set forth in Section 3.7(a)(i), (ii), (iii), (vi) or (vii) are not satisfied on the Closing Date, Purchaser may elect either to (i) terminate this Agreement, or (ii) to the extent such failure constitutes a default by Seller, exercise its rights under Section 13. In the event of the termination of this Agreement pursuant to this Section 3.7, the Xxxxxxx Money and any other sums deposited by Purchaser with the Escrow Agent shall be returned to Purchaser, all documents delivered into escrow shall be returned by the Escrow Agent to the depositing party, Purchaser shall promptly return to Seller the Delivery Items, and each party shall pay any costs theretofore incurred by it, whereupon neither party shall have any additional liability hereunder and this Agreement shall be terminated, except for the Surviving Obligations.
Appears in 1 contract
Additional Conditions to Purchaser’s Obligation to Close. Purchaser’s obligation to purchase the Purchased Assets and assume the Assumed Liabilities is subject to the satisfaction, at or prior to the Closing, of each of the following additional conditions (any of which may be waived, in whole or in part, by Purchaser):
(a) Purchaser shall have received delivery of the Purchased Assets and conducted at its expense a physical count of the Purchased Assets, including inventory and equipment, on or prior In addition to the Closing Date, which Seller may observe;
(b) Seller shall have received the third-party consents, approvals and/or authorizations listed on Schedule 4.3;
(c) Purchaser shall have received a certificate of a duly authorized officer of Seller certifying: (i) as complete and accurate as of the Closing, attached copies of Seller’s Charter Documents; and (ii) all requisite resolutions or actions of Seller’s equityholder and/or board of directors approving the sale of the Purchased Assets, approving a change in Seller’s name to a name acceptable to Purchaser, terminating Seller’s trade name reservations, together with such executed documents as shall be required to change Seller’s name and terminate such foreign qualifications and trade name reservations (and appointing Purchaser as Seller’s attorney-in-fact for the purpose of filing such documents with appropriate Governmental Authorities);
(d) Purchaser shall have received a fully executed Landlord Agreement and Waiver, each in a form and substance satisfactory to Purchaser, with respect to each Leased Property;
(e) Purchaser shall have received a good standing certificate or equivalent for Seller as of the most recent practicable date from the Secretary of State of Delaware and from each other state in which Seller is qualified to do business;
(f) Purchaser shall have received a non-foreign person affidavit that complies with the requirements of Code §1445 from Seller;
(g) Except as otherwise agreed by Purchaser in writing, Seller shall have delivered to Purchaser pay-off letters for the Payable Funded Indebtedness in a form reasonably acceptable to Purchaser;
(h) Purchaser shall have received a fully executed assignment of Intellectual Property Rights from the Seller; and
(i) Purchaser shall have received all other documents reasonably required by conditions set forth herein, the obligation of Purchaser to consummate the transactions contemplated herebyhereunder shall be contingent on the following:
(i) Seller’s representations and warranties contained herein shall be true, correct and complete in all material respects as of the Closing Date;
(ii) As of the Closing Date, the Seller shall have performed its obligations hereunder and all deliveries to be made by Seller at Closing have been tendered;
(iii) Purchaser shall have negotiated acceptable leases or assignments of leases for the Leased Properties;
(iv) At no time on or before the Closing Date shall any of the following have occurred with respect to Seller and/or XXX Stores: (1) the commencement of a case under Title 11 of the U.S. Code, or under any other applicable federal or state bankruptcy or similar law; (2) the appointment of a trustee or receiver of any property interest; (3) an assignment for the benefit of creditors; (4) an attachment, execution or other judicial seizure of a substantial property interest; or (5) a dissolution or liquidation;
(v) Approval by manufacturer(s) of Purchaser’s purchase of the Assets contemplated by this Agreement on terms and conditions acceptable to Purchaser in Purchaser’s sole and absolute discretion including the determination of the Wholesale Price;
(vi) Confirmation by manufacturer(s) of the willingness and ability to supply inventory to Purchaser at quantities acceptable to Purchaser for the Sites.
(vii) Assignment to Purchaser of all warranties provided by equipment vendors;
(viii) Completion of a program in which employees of Purchaser are trained by Seller (or Seller’s designee) in the operation and recommended maintenance of Seller’s POS system;
(ix) The absence of any condition that would render Purchaser incapable of operating a store or stores identified on Exhibit 2.2 and Exhibit 2.3;
(x) Receipt of all consents and approvals required for the Seller’s sale and transfer to Purchaser of the Assets, if applicable; and
(xi) Purchaser being satisfied with the level of employee retention at the sites sufficient to meet Purchaser’s needs in its sole discretion.
(b) If any of the conditions set forth in Section 3.3(a)(i) through (xii) are not satisfied on the Closing Date, Purchaser may elect either to (i) terminate this Agreement, or (ii) to the extent such failure constitutes a default by Seller, exercise its rights under Section 13. In the event of the termination of this Agreement pursuant to this Section 3.3, each party shall pay any costs theretofore incurred by it, whereupon neither party shall have any additional liability hereunder and this Agreement shall be terminated, except for the Surviving Obligations.
Appears in 1 contract
Samples: Purchase Agreement (Rex Stores Corp)
