Buyer’s Conditions to Close. 15.1. If any of Seller's representations and warranties in Article 12 or in Paragraph 9.2 is not true in any material respect as of the Closing Date, the provisions of Paragraph 8.5 will apply. 15.2. All applicable waiting periods under the HSR Act shall have expired or been terminated, and the consent or approval of the DOJ and the FTC, if any, shall be in form and substance reasonably satisfactory to Buyer in accordance with Section 12. 15.3. Seller shall have obtained all material third party consents or waivers necessary to consummate the transactions contemplated by this Agreement, all of such consents and waivers being in form and substance reasonably satisfactory to Buyer. 15.4. Seller shall not be in material breach of any of Seller's covenants and agreements herein contained, which breach, after receipt of written notice thereof, remains uncured for a period in excess of thirty (30) days after receipt of such notice. If such breach has occurred and has not been cured, the provisions of Paragraph 8.5 shall apply. 15.5. No order, writ, injunction or decree shall have been entered and be in effect by any court of competent jurisdiction or any governmental authority, and no law shall have been promulgated or enacted and be in effect, that restrains, enjoins or invalidates the transactions contemplated hereby. Except for proceedings disclosed to Buyer in writing prior to the Closing Date, no proceeding initiated by any person shall be pending before any court or governmental authority seeking to restrain or prohibit or declare illegal, or seeking substantial damages in connection with, the transactions contemplated by this Agreement. 15.6. Seller shall have duly executed and delivered to Buyer the Conveyance Documents. 15.7. Seller shall have completed its removal of the Excluded Assets. 15.8. Buyer shall have obtained or received the transfer and assignment of all Permits, Assigned Contracts and, to the extent provided in Article 5, Term Contracts, related to or necessary for the operation of the Properties as currently conducted, or in the alternative, shall have entered into mutually acceptable arrangements with Seller in order to receive the benefit thereof as contemplated in Article 5. 15.9. Seller will have delivered the easement in the form of Exhibit ------- 3.3. ---- 15.10. Buyer or its designee and Seller will have entered into the Exchange Agreement. 15.11. Buyer and Seller will have agreed, such agreement not to be unreasonably withheld by either party, upon the metes and bounds of the Xxxxxx Property to be sold to Buyer, and Buyer will have received a survey and plot plan of such property reflecting such agreement.
Appears in 1 contract
Buyer’s Conditions to Close. 15.1Buyer's obligation to close the transactions contemplated hereby at Closing shall be subject to the complete satisfaction and fulfillment of all of the following conditions precedent, any or all of which may be waived in whole or in part by Buyer (but no such waiver of any such condition precedent shall be or constitute a waiver of any covenant, promise, agreement, representation or warranty made by Seller or Shareholders in this Agreement):
10.3.1. If All representations and warranties made by Seller and Shareholders in this Agreement shall be complete and accurate at and as of Closing.
10.3.2. All covenants, promises and agreements made by Seller and Shareholders in this Agreement and all other actions required to be performed or complied
98.10.1 16 with by Seller and Shareholders under this Agreement prior to or at Closing shall have been fully performed or complied with by Seller and Shareholders.
10.3.3. Seller and Shareholders shall have fully disclosed this transaction to all creditors of Seller as necessary in order to affect the payments of Creditors as provided in Section 4 above; Seller and Shareholders shall not have concealed this transaction from any creditor of Seller or Shareholders; Seller and Shareholders shall not have been sued or threatened with suit, except as otherwise fully disclosed to Buyer in an exhibit to this Agreement and waived by Buyer as a condition precedent to Closing; Seller and Shareholders shall not have removed or concealed any assets, whether or not such assets are to be transferred under this Agreement; Seller and Shareholders shall have assets greater than Seller's and Shareholders' respective debts, using a fair valuation; Seller and Shareholders shall pay and continue to pay their debts as they become due; and Seller and Shareholders shall not have incurred individually or in the aggregate any substantial debt that is substantially greater than the debts incurred by Seller and Shareholders, respectively, in the ordinary course of Seller's representations and warranties in Article 12 Shareholders' business or in Paragraph 9.2 is not true in any material respect as of the Closing Date, the provisions of Paragraph 8.5 will applyaffairs.
15.2. All applicable waiting periods under the HSR Act shall have expired or been terminated, and the consent or approval of the DOJ and the FTC, if any, shall be in form and substance reasonably satisfactory to Buyer in accordance with Section 12.
15.310.3.4. Seller shall have obtained all material third party consents deliver to Buyer at or waivers necessary to consummate before Closing a copy, certified by Seller's Secretary or other appropriate officer, of the resolutions of Seller's Board of Directors and the resolutions of Shareholders authorizing and approving Buyer's execution of and entering into this Agreement and the agreements made part of this Agreement and the performance by Seller of the transactions contemplated by provided in this Agreement.
10.3.5. Seller shall deliver to Buyer at or before Closing a certificate of good standing from the California Secretary of State.
10.3.6. All necessary authorizations, all consents, permits, licenses and approvals pursuant to Section 7 of this Agreement shall have been obtained, and such consents verification and waivers being in form and substance documentation concerning the same as Buyer may have reasonably satisfactory requested shall have been provided to Buyer.
15.410.3.7. There shall not have occurred any material adverse change in the business of Seller or in the Assets.
10.3.8. Seller shall not be deliver to Buyer at and as of Closing a certificate signed by an officer of Seller certifying, in material breach such detail as Buyer may request, to the fulfillment of any of Seller's covenants and agreements herein contained, which breach, after receipt of written notice thereof, remains uncured for a period the conditions specified in excess of thirty (30) days after receipt of such notice. If such breach has occurred and has not been cured, the provisions of Paragraph 8.5 shall applythis Section 10.3.
15.5. No order, writ, injunction or decree shall have been entered and be in effect by any court of competent jurisdiction or any governmental authority, and no law shall have been promulgated or enacted and be in effect, that restrains, enjoins or invalidates the transactions contemplated hereby. Except for proceedings disclosed to Buyer in writing prior to the Closing Date, no proceeding initiated by any person shall be pending before any court or governmental authority seeking to restrain or prohibit or declare illegal, or seeking substantial damages in connection with, the transactions contemplated by this Agreement.
15.6. Seller shall have duly executed and delivered to Buyer the Conveyance Documents.
15.7. Seller shall have completed its removal of the Excluded Assets.
15.810.3.9. Buyer shall have obtained received assurances, which in its reasonable opinion are sufficient, that any financing statements, security interests, liens and encumbrances against any of the Assets relating to any debts of Seller or any of Shareholders have been released and terminated.
10.3.10. Buyer shall have received the transfer all things required to be delivered or furnished to Buyer by Seller and assignment of all Permits, Assigned Contracts and, to the extent provided in Article 5, Term Contracts, related Shareholders hereunder prior to or necessary for the operation of the Properties as currently conducted, or in the alternative, shall have entered into mutually acceptable arrangements with Seller in order to receive the benefit thereof as contemplated in Article 5at Closing.
15.9. Seller will have delivered the easement in the form of Exhibit ------- 3.3. ----
15.10. Buyer or its designee and Seller will have entered into the Exchange Agreement.
15.11. Buyer and Seller will have agreed, such agreement not to be unreasonably withheld by either party, upon the metes and bounds of the Xxxxxx Property to be sold to Buyer, and Buyer will have received a survey and plot plan of such property reflecting such agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Barringer Laboratories Inc)
Buyer’s Conditions to Close. 15.1. If any of Seller's representations and warranties in Article 12 or in Paragraph 9.2 is not true in any material respect as of the Closing Date, the provisions of Paragraph 8.5 will apply.
15.2. All applicable waiting periods under the HSR Act shall have expired or been terminated, and the consent or approval of the DOJ and the FTC, if any, shall be in form and substance reasonably satisfactory to Unless waived by Buyer in accordance with Section 12.
15.3. Seller shall have obtained all material third party consents or waivers necessary its sole discretion, Buyer’s obligation to consummate the transactions contemplated by this AgreementAgreement is subject to the following conditions:
(a) (i) the representations and warranties of Seller shall be accurate as of the date of this Agreement and shall be true and correct in all material respects at and as of the Closing Date; provided, however, for purposes of determining whether the condition set forth in this Section 7.1(a) has been satisfied, all of such consents Knowledge or similar qualifiers contained in any representation or warranty shall be disregarded, and waivers being in form and substance reasonably satisfactory to Buyer.
15.4. (ii) Seller shall not be in material breach of any of Seller's have performed and complied with all covenants and agreements herein contained, which breach, after receipt of written notice thereof, remains uncured for a period in excess of thirty (30) days after receipt of such notice. If such breach has occurred conditions required to be performed and has not been cured, the provisions of Paragraph 8.5 shall apply.
15.5. No order, writ, injunction complied with by them at or decree shall have been entered and be in effect by any court of competent jurisdiction or any governmental authority, and no law shall have been promulgated or enacted and be in effect, that restrains, enjoins or invalidates the transactions contemplated hereby. Except for proceedings disclosed to Buyer in writing prior to the Closing DateDate.
(b) all statutory requirements for the valid consummation of the transactions contemplated herein shall have been fulfilled and all governmental consents, approvals or authorizations necessary for the valid consummation of the transactions contemplated herein shall have been obtained including, but not limited to, the Regulatory Approvals;
(c) no proceeding initiated by any person action or suit shall have been commenced and no Laws shall have been enacted or proposed that reasonably may be pending before any court expected to prohibit Buyer’s ownership of the Assets or governmental authority seeking render Buyer unable to restrain purchase the Assets, make the sale of the Assets illegal or prohibit impose material limitations on the ability of Buyer to exercise full rights of ownership of the Assets;
(d) the completion, at the sole option and expense of Buyer, of a Phase I environmental report or declare illegalother environmental investigation regarding the Real Property and, or seeking substantial damages in connection withif recommended, the completion of a Phase II environmental report, and the contents of each such report being to the reasonable satisfaction of Buyer;
(e) Buyer shall have completed to its sole satisfaction a due diligence review of the Assets and the Business;
(f) the parent of Buyer shall have approved the transactions contemplated by this Agreement.;
15.6. (g) all consents, approvals and waivers necessary to permit Seller to transfer the Assets to Buyer, or necessary to permit Buyer to operate the City System as presently operated, shall have been obtained, including the Regulatory Approvals, which Regulatory Approvals shall include the granting of a Tariff to allow the Buyer to continue to operate the City Systems under the Existing City Rates; and the City Council of Seller shall have duly passed an appropriate ordinance approving the transactions contemplated by this Agreement and the Related Agreements;
(h) Seller shall have delivered to Buyer at or prior to Closing a certificate executed by an appropriate representative of Seller that certifies that all necessary actions (including the adoption of ordinances, resolutions or the like) authorizing the execution and delivery of this Agreement and the other agreements and documents contemplated hereby and the taking of all actions contemplated hereby and thereby have been taken;
(i) Buyer, at its sole expense and cost, shall have caused the Title Company to issue to Buyer (or deliver the Title Company’s irrevocable and unconditional commitment to issue to Buyer), an owner policy of title insurance issued by Title Company (the “Owner Policy”) and insuring, to the satisfaction of Buyer, that Buyer is the owner of the Real Property subject only to the Permitted Encumbrances and the standard printed exceptions, with the exception as to restrictions marked “none of record” (other than those that constitute Permitted Encumbrances), the exception for taxes limited to the year in which the Closing occurs and subsequent years and subsequent assessments for prior years due to change in land usage or ownership, the exception for “parties in possession” deleted and the area and boundary exception modified to read “any shortages in area”;
(j) Seller shall have delivered to Buyer at Closing a certificate executed by an appropriate representative of Seller, dated as of the Closing Date, that certifies that the representations and warranties of Seller contained in this Agreement are true and correct in all material respects as of the Closing Date and that Seller has performed and complied with all covenants and conditions required by this Agreement to be performed and complied with by any of them at or prior to Closing;
(k) Seller shall have provided to Buyer at Closing a certificate executed by an appropriate representative of the Seller hereof updating and supplementing (i) the Customer information provided in Section 5.1(g) (other than the historical billing information which need not be updated), and (ii) the SSO Listing;
(l) Each of the Related Agreements shall have been executed and delivered to Buyer in the Conveyance Documents.
15.7. Seller manner contemplated by Section 6.6 and the Escrow Agreement shall have completed its removal of been executed and delivered by the Excluded Assets.Escrow Agent;
15.8. (m) Buyer shall have obtained or received in form satisfactory to it in its sole discretion, (i) a bring down of the transfer legal opinion from the general counsel of Seller delivered to Buyer contemporaneous with the execution of this Agreement, as to the representations and assignment of all Permitswarranties set forth in Sections 3.1(a) through 3.1(e) hereof, Assigned Contracts andand (ii) a legal opinion from XxXxxx Law Firm, P.A. outside bond counsel to the Seller, to the extent provided effect that the execution and delivery of this Agreement and the Related Agreements by Seller, and the performance by Seller of its obligations hereunder and thereunder are consistent with, and in Article 5compliance with, Term Contractsany bonds binding upon the Seller or otherwise relating to the Assets or the transfer thereof, related and that the Assets are not encumbered by any such bonds;
(n) Buyer shall be reasonably satisfied that it is getting good and marketable title to or necessary for all real estate utilized in the operation of the Properties as currently conducted, or City System and that such real estate constitutes all the real property required to operate the City System in the alternative, manner currently being operated (including any necessary grants of rights-of-way from Richland County); and
(o) the EPA shall have entered into mutually acceptable arrangements with Seller in order to receive the benefit thereof as contemplated in Article 5.
15.9. Seller will have delivered the easement in the form of Exhibit ------- 3.3. ----
15.10. Buyer or its designee and Seller will have entered into the Exchange Agreement.
15.11. Buyer and Seller will have agreed, such agreement not in a form and substance satisfactory to be unreasonably withheld Buyer in its discretion, that the Existing EPA Dispute does not, and will not, affect in any way the Assets, the City System or the Buyer, including without limitation, by either partystipulating that the Consent Decree being negotiated between the Seller and the EPA with respect to the EPA Dispute (the “Consent Decree”), shall provide that upon the metes and bounds acquisition of the Xxxxxx Property City System and the Assets by the Buyer pursuant to be sold the terms hereof, such Consent Decree shall have no application to Buyer, and Buyer will have received a survey and plot plan of such property reflecting such agreementthe City System or the Assets (“Consent Decree Stipulation”).
Appears in 1 contract
Samples: Asset Purchase Agreement
Buyer’s Conditions to Close. 15.1. If Without limiting any of Seller's representations and warranties the other conditions to Buyer’s obligations to close set forth in Article 12 this Agreement, the obligations of Buyer under this Agreement are subject to the satisfaction at the time of Closing of each of the following conditions (any one of which may be waived in whole or in Paragraph 9.2 part by Buyer in writing at or prior to Closing):
(i) All of the representations by Seller set forth in this Agreement or any Exhibit attached hereto shall be true and correct in all material respects;
(ii) Subject to the provisions of Article 9 hereof, the Property shall be in the same condition as at the expiration of the Due Diligence Period, reasonable use and wear excepted, including Good Family Farm, LLC having completed removal of all lead dust throughout the Property and the remediation of mold in the basement, attic and smallest upstairs bedroom of the Property;
(iii) Seller shall have performed, observed, and complied with all covenants and agreements required by this Agreement to be performed by Seller at or prior to Closing, including delivery of each of the Seller Deliveries;
(iv) There shall be no outstanding notices of violation with respect to the Property or the Seller’s operation thereof from any Governmental Agency. Seller shall be obligated to remove all notices of violations of law (including fines and penalties related thereto), or municipal ordinances, orders, designations or requirements whatsoever noted in or issued by any Governmental Agency, or any condition or state of repair or disrepair or other matter or thing, whether or not noted which, if noted, would result in a violation being placed on the Property; and
(v) Performance of this Agreement is not true in any material respect mutually contingent upon the simultaneous performance by both Xxxxx, Xxxx Xxxxx, Xxx Xxxxx, and Xxxxx Family Farm, LLC under the Asset Purchase and Sale Agreement relating to the acquisition of the related business entered into as of the date hereof. If on the Closing DateDate (or three (3) business days prior to the Closing Date as to Sections 7(a)(v) and 7(a)(vi) above) the conditions of this Article 7(a) have not been satisfied, then, at Buyer’s option, the provisions Deposit shall be returned to Buyer forthwith. In such case, if Seller is not in breach or default of Paragraph 8.5 will apply.
15.2. All applicable waiting periods under any of its representations, warranties, covenants or obligations hereunder, upon the HSR Act return of the Deposit to Buyer, except for Buyer’s indemnity set forth in Article 6(c) above, all other obligations of the parties hereto shall have expired or been terminated, cease and this Agreement shall be terminated and the consent or approval of the DOJ and the FTC, if any, parties shall be without further recourse or remedy hereunder. If Seller is in form and substance reasonably satisfactory to Buyer in accordance with Section 12.
15.3. Seller shall have obtained all material third party consents or waivers necessary to consummate the transactions contemplated by this Agreement, all of such consents and waivers being in form and substance reasonably satisfactory to Buyer.
15.4. Seller shall not be in material breach of any of Seller's its representations, warranties, covenants and agreements herein containedor obligations hereunder, which breach, after receipt of written notice thereof, remains uncured for a period in excess of thirty (30) days after receipt of such notice. If such breach has occurred and has not been cured, then the provisions of Paragraph 8.5 shall apply.
15.5. No order, writ, injunction or decree shall have been entered and be in effect by any court of competent jurisdiction or any governmental authority, and no law shall have been promulgated or enacted and be in effect, that restrains, enjoins or invalidates the transactions contemplated hereby. Except for proceedings disclosed to Buyer in writing prior to the Closing Date, no proceeding initiated by any person shall be pending before any court or governmental authority seeking to restrain or prohibit or declare illegal, or seeking substantial damages in connection with, the transactions contemplated by this Agreement.
15.6. Seller shall have duly executed and delivered to Buyer the Conveyance Documents.
15.7. Seller shall have completed its removal of the Excluded Assets.
15.8. Buyer shall have obtained or received the transfer rights and assignment of all Permits, Assigned Contracts and, to the extent provided remedies set forth in Article 5, Term Contracts, related to or necessary for the operation of the Properties as currently conducted, or in the alternative, shall have entered into mutually acceptable arrangements with Seller in order to receive the benefit thereof as contemplated in Article 58 below.
15.9. Seller will have delivered the easement in the form of Exhibit ------- 3.3. ----
15.10. Buyer or its designee and Seller will have entered into the Exchange Agreement.
15.11. Buyer and Seller will have agreed, such agreement not to be unreasonably withheld by either party, upon the metes and bounds of the Xxxxxx Property to be sold to Buyer, and Buyer will have received a survey and plot plan of such property reflecting such agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement
