Non Delivery C15.1 Where the Goods, having been placed in transit, fail to be delivered to the Authority on the due date for delivery, the Authority shall, (provided that the Authority has been advised in writing of the dispatch of the Goods), within ten (10) Working Days of the notified date of delivery, give notice to the Contractor that the Goods have not been delivered and may request the Contractor free of charge to deliver substitute Goods within the timescales specified by the Authority or terminate the Contract in accordance with clause C13.4 (Delivery).
Company Deliveries The Company shall deliver to Buyer at or prior to the Closing, each of the following:
(i) a certificate, dated as of the Closing Date and executed on behalf of the Company by its Chief Executive Officer, to the effect that each of the conditions set forth in Section 6.10(b), 7.3(a) and Sections 7.3(c) through 7.3(i) inclusive has been satisfied;
(ii) a certificate, dated as of the Closing Date and executed on behalf of the Company by its Secretary, certifying the Company’s (A) articles, (B) bylaws, (C) board resolutions approving the Share Purchase and adopting this Agreement, and (D) other matters in Buyer’s reasonable discretion;
(iii) a written opinion from Company Counsel, covering the matters set forth on Exhibit A, dated as of the Closing Date and addressed to Buyer;
(iv) the General Escrow Agreement and the Separate Escrow Agreement, each dated as of the Closing Date and executed by the Closing Company Shareholders and the Shareholders’ Agent;
(v) the Employment Documentation, as provided by Buyer, executed by as many of the individuals set forth in Schedule 7.3(f) as is possible, consistent with Section 6.10(a);
(vi) evidence satisfactory to Buyer of (A) the resignation and release of each of the directors and each of the officers of the Company and of each Subsidiary in office immediately prior to the Closing as directors and/or officers, as applicable, of the Company and of each such Subsidiary, effective no later than immediately prior to the Closing, and (B) if requested by Buyer, the appointment of new officers and directors of the Company and of each Subsidiary which appointments are to become effective at the Closing;
(vii) the Consulting Agreement duly executed by the Designated Contractor;
(viii) unless otherwise requested by Buyer in writing no less than three Business Days prior to the Closing Date, (A) a true, correct and complete copy of resolutions adopted by the Company Board, certified by the Secretary of the Company, authorizing the termination of each or all of the Company Employee Plans that are “employee benefit plans” subject to ERISA, including the Company’s 401(k) Plan (the “401(k) Plan”), and (B) an amendment to the 401(k) Plan, executed by the Company, that is sufficient to assure compliance with all applicable requirements of the Code and regulations thereunder so that the Tax-qualified status of the 401(k) Plan shall be maintained at the time of its termination, with such amendment and termination to be effective on the date immediately preceding the Closing Date and contingent upon the Closing;
(ix) a certificate from the Ministry of Government Services (Ontario), and each other state, province or other jurisdiction in which the Company or any Subsidiary is qualified to do business as a domestic or foreign corporation dated within three days prior to the Closing Date certifying that the Company or such Subsidiary is in good standing;
(x) evidence satisfactory to Buyer of (A) the novation or consent to assignment of any Person whose novation or consent to assignment, as the case may be, may be required in connection with the Share Purchase or any other transaction contemplated by this Agreement under the contracts listed or described in Schedule 1.5(b)(x)-1 hereto, (B) the termination of each of the contracts of the Company listed or described in Schedule 1.5(b)(x)-2 hereto, and (C) the amendment of each of the contracts of the Company listed or described in Schedule 1.5(b)(x)-3 hereto in the manner described on such Schedule with respect to each such contract;
(xi) the Spreadsheet completed to include all of the information specified in Section 6.8 in a form reasonably acceptable to Buyer and a certificate executed by the Chief Executive Officer of the Company, dated as of the Closing Date, certifying that such Spreadsheet is true, correct and complete;
(xii) the Transaction Expenses Certificate, which certificate shall be accompanied by such supporting documentation, information and calculations as are reasonably necessary for Buyer to verify and determine the amount of Transaction Expenses;
(xiii) the Company Net Debt Balance Certificate, which certificate shall be accompanied by such supporting documentation, information and calculations as are reasonably necessary for Buyer to verify and determine the Company Net Debt Balance; and
(xiv) complete and correct copies of all executed stock option grants and agreements relating to the New Company Options, in the form provided by the Buyer.
Company Deliverables The Company shall have delivered the Company Deliverables in accordance with Section 2.2(a).
Failure to Timely Deliver; Buy-In If the Company fails to (i) issue and deliver (or cause to be delivered) to the Investor by the Required Delivery Date a certificate representing the Securities so delivered to the Company by such Investor that is free from all restrictive and other legends or (ii) credit the balance account of such Investor’s or such Investor’s nominee with DTC for such number of Conversion Shares so delivered to the Company, then, in addition to all other remedies available to such Investor, the Company shall pay in cash to such Investor on each day after the Required Delivery Date that the issuance or credit of such shares is not timely effected an amount equal to 2% of the original principal amount of such Investor’s Note. In addition to the foregoing, if the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account of such Investor’s or such Investor’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery Date such Investor (or any other Person in respect, or on behalf, of such Investor) purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Investor of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock, that such Investor so anticipated receiving from the Company without any restrictive legend, then, in addition to all other remedies available to such Investor, the Company shall, within three (3) Trading Days after such Investor’s request and in such Investor’s sole discretion, either (i) pay cash to such Investor in an amount equal to such Investor’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Investor’s balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Investor a certificate or certificates or credit such Investor’s DTC account representing such number of shares of Common Stock that would have been so delivered if the Company timely complied with its obligations hereunder and pay cash to such Investor in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Conversion Shares that the Company was required to deliver to such Investor by the Required Delivery Date multiplied by (B) the lowest Closing Sale Price (as define in the Note) of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Investor to the Company of the applicable Conversion Shares and ending on the date of such delivery and payment under this clause (ii).
Closing; Delivery (a) The purchase and sale of the Series C-1 Preferred Stock by the Investors and the issuance of the Series C-2 Warrants shall take place at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxxx Xxxxxx, San Francisco, California 94105 at 10:00 a.m., on the date of this Agreement, or such other date, time or place as the Company and the Investors mutually agree upon, orally or in writing following satisfaction of the conditions in Section 4 (which time and place are designated as the “Closing”), upon the physical or electronic exchange among the parties and their counsel of all documents and deliverables required under this Agreement; provided, however, that if the Closing does not occur on or before November 17, 2011, this Agreement shall terminate in its entirety, provided further that in the event this Agreement terminates, the Prior Agreement shall be reinstated in its entirety and shall be in full force and effect.
(b) At the Closing, the Company will deliver to each Investor purchasing Series C-1 Preferred Stock a certificate registered in such Investor’s name representing the number of Series C-1 Preferred Stock that such Investor is purchasing against payment of the purchase price therefor, by (a) delivery of a bank cashier’s check payable to the Company, (b) wire transfer to the Company in accordance with the Company’s written instructions, (c) cancellation of indebtedness owed by the Company to the Investor, or (d) any combination of the foregoing or any other consideration agreed upon by the Company. In the event that payment by an Investor is made, in whole or in part, by cancellation of indebtedness, then such Investor shall surrender to the Company for cancellation at the Closing any evidence of indebtedness or shall execute an instrument of cancellation in form and substance acceptable to the Company. The shares of Series C-1 Preferred Stock issued to the Investors pursuant to this Agreement shall be hereinafter referred to as the “Stock.” The Stock, the Series C-2 Warrants, the Warrant Stock, and the Common Stock issuable upon conversion of the Stock shall be hereinafter referred to as the “Securities.”
PRODUCT DELIVERY Delivery must be made as ordered to the address specified on the Purchase Order and in accordance with the terms of the Contract or Contract Award Notice. Unless otherwise specified in the Bid Documents, delivery shall be made within thirty calendar days after receipt of a Purchase Order by the Contractor. The decision of the Commissioner as to compliance with delivery terms shall be final. The burden of proof for delay in receipt of Purchase Order shall rest with the Contractor. In all instances of a potential or actual delay in delivery, the Contractor shall immediately notify the Commissioner and the Authorized User, and confirm in writing the explanation of the delay, and take appropriate action to avoid any subsequent late deliveries. Any extension of time for delivery must be requested in writing by the Contractor and approved in writing by the Authorized User. Failure to meet such delivery time schedule may be grounds for cancellation of the order or, in the Commissioner’s discretion, the Contract.
Closing Deliveries (a) At the Closing, the Blackstone Entities shall deliver or cause to be delivered to the NBCU Entities:
(i) duly executed counterparts of the Partners’ Agreement, substantially in the form attached hereto as Exhibit A;
(ii) duly executed counterparts of the Loan Agreement, substantially in the forms attached hereto as Exhibits C-1;
(iii) the certificates contemplated by Section 5.2(a)(iii);
(iv) payment by wire transfer, to an account designated by NBC Universal in writing no less than three days prior to the Closing Date, of the Guarantee Fee; and
(v) all other documents, instruments and writings required to be delivered by the Blackstone Entities pursuant to this Agreement and such other documents, instruments and writings as counsel for the Blackstone Entities and the NBCU Entities mutually agree to be reasonably necessary to consummate the transactions described herein.
(b) At the Closing, the NBCU Entities shall deliver or cause to be delivered to the Blackstone Entities:
(i) duly executed counterparts of the Partners’ Agreement, substantially in the forms attached hereto as Exhibit A;
(ii) counterparts of the Loan Agreement, as duly executed by XX Xxxxxx, and the Guarantee Agreement, as duly executed by NBC Universal, substantially in the forms attached hereto as Exhibits C-1 and C-2;
(iii) the certificates contemplated by Section 5.3(a)(iii);
(iv) payment by wire transfer, to (A) accounts designated by and (B) in the proportion designated by, the Blackstone Entities in writing no less than three days prior to the Closing Date, of the Fee Loan; and
(v) all other documents, instruments and writings required to be delivered by the NBCU Entities pursuant to this Agreement and such other documents, instruments and writings as counsel for the Blackstone Entities and the NBCU Entities mutually agree to be reasonably necessary to consummate the transactions described herein.
Closing Deliveries by Purchaser At the Closing on the Closing Date the Purchaser shall deliver to the Seller.
(a) The Closing Payment to be delivered by the Purchaser pursuant to Section 3.03(a) of this Agreement;
(b) The Supply Agreements duly executed by Purchaser (or its appropriate Affiliates as set forth on Exhibits D-1, D-2, D-3 and D-4);
(x) The Transition Services Agreement duly executed by Purchaser (or its appropriate Affiliate as set forth on Exhibit E);
(d) Certified copies of the Purchaser's articles of incorporation and all amendments thereto, certified by the Secretary of State of the State of North Carolina as of date not more than ten Business Day prior to the Closing Date;
(e) Certified copies of minutes or unanimous written consents of the Board of Directors of the Purchaser approving the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated under this Agreement;
(f) A Certificate, dated the Closing Date, executed by the appropriate officer of the Purchaser, required by Section 11.02 of this Agreement;
(g) An agreement executed by the Purchaser reflecting the assumption of the liabilities set forth in Section 3.06(a) of this Agreement, in the form attached hereto as Exhibit G; and
(h) Such other documents as the Seller or its counsel may reasonably request to carry out the purposes of this Agreement, including, but not limited to, the documents to be delivered pursuant to Article XI of this Agreement.
Condition on delivery If a Vehicle accepted by an Authorized User is found to have been delivered with minor deviations or improper servicing, the Contractor must arrange to have the necessary work done within 48 hours (exclusive of Saturdays, Sundays and Federal or NYS Holidays) after receipt of written notification from the Authorized User and/or NYSPro. If Contractor cannot arrange to have the necessary work done within such time period, the corrections shall be made by an entity of the Authorized User’s choosing and Contractor will be required to reimburse the Authorized User for this expense within thirty (30) calendar days of request. At point of acceptance, the Vehicle shall have an odometer reading that is consistent with the miles, in distance, to the anticipated odometer mileage incurred between the OEM factory, the Contractor’s place of business, or other OEM Dealer location that is nearest to the delivery location, the Aftermarket Component Provider (if applicable), and the point of delivery. In the event that a Vehicle is delivered with an odometer reading that the Authorized User considers to be excessive, the Contractor shall be required to provide a reasonable explanation for the odometer reading. Vehicles that are delivered with an odometer reading that is considered excessive without a reasonable explanation, as determined by the Authorized User, may be rejected by the Authorized User.
Mandatory Delivery The sale and delivery on the Closing Date of the Mortgage Loans described on the Mortgage Loan Schedule is mandatory, it being specifically understood and agreed that each Mortgage Loan is unique and identifiable on the date hereof and that an award of money damages would be insufficient to compensate the Purchaser for the losses and damages incurred by the Purchaser (including damages to prospective purchasers of the Mortgage Loans) in the event of the Seller's failure to deliver the Mortgage Loans on or before the Closing Date. All rights and remedies of the Purchaser under this Agreement are distinct from, and cumulative with, any other rights or remedies under this Agreement or afforded by law or equity and all such rights and remedies may be exercised concurrently, independently or successively.
