Company Conditions. The obligations of the Company to consummate the Closing are also subject to the satisfaction or valid waiver by the Company of the additional conditions that, on the Closing Date:
(i) all representations and warranties of the Subscriber contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality, which representations and warranties shall be true in all respects) at and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality, which representations and warranties shall be true in all respects) as of such date), and consummation of the Closing shall constitute a reaffirmation by the Subscriber of each of the representations, warranties and agreements of the Subscriber contained in this Subscription Agreement as of the Closing Date;
(ii) the Company shall have filed the Certificate of Designations with the Secretary of State of the State of Delaware; and
(iii) the Subscriber shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to Closing.
Company Conditions. The obligations of the Company to consummate the Closing are subject to the fulfilment by the Investor or waiver by the Company on or prior to the Closing of each of the following conditions (collectively, the “Company Conditions”):
Company Conditions. The obligation of the Company to complete the Arrangement is subject to the fulfillment of the following additional conditions at or before the Outside Date or such other time as is specified below:
(a) (i) the representations and warranties made by Triple Flag set forth in Sections (1), (3), (7) and (8) of Schedule D shall be true and correct in all respects as of the Effective Date, as though made on and as of the Effective Date (except for representations and warranties made as of a specified date, the accuracy of which shall be determined as of that specified date), and (ii) other than those representations and warranties set forth in (i), all other representations and warranties made by Triple Flag in Schedule D shall be true and correct in all respects (disregarding for this purpose all materiality or Material Adverse Effect qualifications contained therein) as of the Effective Date, as though made on and as of the Effective Date (except for representations and warranties made as of a specified date, the accuracy of which shall be determined as of that specified date) except to the extent that the failure or failures of such representations and warranties to be so true and correct in all respects, individually or in the aggregate, would not result in a Material Adverse Effect; and the Company shall have received a certificate of Triple Flag addressed to the Company and dated the Effective Date, signed on behalf of Triple Flag by a senior executive officer of Triple Flag (on Triple Flag’s behalf and without personal liability), confirming the same as at the Effective Date;
(b) from the date of this Agreement to the Effective Date, there shall not have occurred, and Triple Flag or any of Triple Flag Subsidiaries shall not have incurred or suffered, any one or more changes, effects, events, occurrences or states of facts that, either individually or in the aggregate, have, or could reasonably be expected to have, a Material Adverse Effect on Triple Flag;
(c) Triple Flag shall have complied in all material respects with its covenants herein and the Company shall have received a certificate of Triple Flag addressed to the Company and dated the Effective Date, signed on behalf of Triple Flag by a senior executive officer of Triple Flag (on Triple Flag’s behalf and without personal liability), confirming the same as at the Effective Date; and
(d) Triple Flag shall have amended the Triple Flag Investor Rights Agreement in the form appended as Schedule E here...
Company Conditions. The obligation of the Company to consummate the transactions contemplated hereunder at the applicable Closing with any Purchaser is subject to the satisfaction or waiver by the Company, on or before the applicable Closing, of the following conditions:
(a) The representations and warranties of such Purchaser contained in Section 3 shall be true, complete and correct in all respects as of the date hereof and, as of the applicable Closing Date as though such representations and warranties had been made on and as of such date.
(b) Such Purchaser shall have performed and complied in all material respects with all agreements contained herein, and in any other Transaction Document which are required to be performed or complied with by them prior to or at the time of the applicable Closing Date.
(c) Except for notices or filings required or permitted to be filed after the applicable Closing Date with federal and state securities commissions, the Company shall have obtained the written consent or approval of, or shall have filed any applicable notice or filing with, each Person whose consent or approval is required, or with whom a notice or filing is required, in connection with the transactions contemplated hereunder.
(d) The Company shall have obtained the consent of the Series C/C-2 Investors under the Investors Rights Agreement to the sale and issuance of the Securities and the waiver of the Series C/C-2 Investors to their rights of first refusal under the Investors Rights Agreement with respect to the sale and issuance of the Securities and such consent and waiver shall remain in full force and effect.
(e) No Proceeding shall be pending or, to the knowledge of Company, threatened by any third party or by or before any court or governmental agency in which it is sought to restrain or prohibit or to obtain damages or other relief in connection with the consummation of the transactions contemplated hereby.
Company Conditions. The obligation of the Company to issue the Notes on the Closing Date as provided herein is subject to the satisfaction of the following conditions, each as of the Closing Date:
Company Conditions. The obligation of the Company to consummate the allotment and issuance of the Units to each Investor shall be subject to the satisfaction on or prior to the Investment Closing Date of each of the following conditions with respect to such Investor (any or all of which may be waived by the Company in writing, in whole or in part, to the extent permitted by applicable Law):
(a) the representations and warranties of such Investor set forth in this Agreement qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Investment Closing as though made at and as of the Investment Closing, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date);
(b) such Investor shall have performed and complied in all material respects with all obligations and agreements required by this Agreement to be performed or complied with by such Investor on or prior to the Investment Closing Date;
(c) there shall not be pending any suit, action or proceeding by any Person seeking to restrain, preclude, enjoin or prohibit the transactions contemplated by this Agreement, which suit, action or proceeding is reasonably likely to have a material adverse effect on the Company; and
(d) such Investor shall have delivered, or caused to be delivered, to the Company at the Investment Closing such Investor’s closing deliverables described in Section 2.5.
Company Conditions. The obligations of Investor to the Company under this Agreement are subject to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise waived:
Company Conditions. Provided that the Company has used commercially reasonable efforts to comply with (or cause to be complied with) such conditions, the Company's obligation to complete the transactions set out in this Agreement is subject to the following conditions being satisfied in full:
a) the Company exercising the Guarantee Right;
b) there will be no inquiry, investigation (whether formal or informal) or other proceeding commenced in relation to the Company or any of its subsidiaries or in relation to any of the Company's directors and officers, any of which suspends or ceases trading in the Rights or Rights Shares or operates to prevent or restrict the lawful distribution of the Securities; and
c) there will be no order issued by a Governmental Entity and no change of Law, either of which suspends or ceases trading in the Rights or Rights Shares or operates to prevent or restrict the lawful distribution of the Securities.
Company Conditions. The obligation of Company to close the transaction which is the subject of this Agreement is subject to the fulfillment as of the Closing Date or as of the Escrow Closing Date, as applicable, of each of the following conditions, unless any unfulfilled condition is waived in writing by Company:
Company Conditions. The obligation of the Company to sell and issue the Shares and Warrants at the Closing and thereafter pursuant to this Agreement shall be subject to and conditioned upon satisfaction, or waiver by the Company, prior to or at the Closing, of each of the following conditions:
(a) The representations and warranties of the Investor contained in this Agreement and the other Closing Documents shall, if specifically qualified by materiality, be true and correct and, if not so qualified, be true and correct in all material respects, in each case as of the Closing Date and all covenants and agreements of the Investor contained in this Agreement and the other Closing Documents shall have been performed or complied with, as applicable, in all material respects on or prior to the Closing Date.
(b) The Investor shall have obtained all consents, approvals or waivers (and such shall be in effect as of the Closing) from Governmental Persons and third parties necessary for the execution, delivery and performance of this Agreement and the other Closing Documents by the Investor, as applicable.
(c) The Company shall have received subscriptions for the Senior Preferred Stock, dated as of even date herewith, in the aggregate amount of at least $145 million (inclusive of the Aggregate Purchase Price under this Agreement).
(d) The Stockholders shall have performed their obligations under the Agreement of Stockholders.
(e) The Fifth Charter shall have been approved by the requisite stockholders of the Company.
(f) No action or proceeding before any court or Governmental Person will be pending wherein a judgment, decree or order would prevent any of the transactions contemplated hereby or thereby or cause such transactions to be declared unlawful or rescinded.
(g) The Company has received from the Investor all such counterpart originals or certified or other copies of such documents as the Company may have reasonably requested from the Investor.
(h) The Investor shall have approved the Company budget as set forth in SCHEDULE 7.1(a)(ii) hereto.
