Conditions of the Purchaser’s Obligations The obligations of the Purchaser to purchase and pay for the Private Placement Warrants are subject to the fulfillment, on or before each Closing Date, of each of the following conditions:
Conditions to Obligations of the Purchaser The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or written waiver, at or prior to the Closing, of each of the following conditions:
Conditions to Obligations of Purchaser The obligations of Purchaser hereunder are subject to the fulfillment, at or before the Closing, of each of the following conditions (all or any of which may be waived in whole or in part by Purchaser in its sole discretion):
Conditions of the Purchasers’ Obligations at Closing The obligations of the Purchaser 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:
Conditions of Manager’s Obligations The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time of Sale and as of any Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(i) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus.
(c) On every date specified in Section 4(p) hereof, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have performed their respective obligations under this Agreement that they are required to perform on or prior to such Representation Date, (iii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effect.
(g) On every date specified in Section 4(r) hereof, the Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date.
(h) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Conditions to Obligations of the Purchasers The obligations of the Purchasers to consummate the Purchase shall be subject to the fulfillment on or prior to the Closing of each of the following conditions:
(a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing;
(b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice.
(c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) and the Company shall have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c);
(d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”).
(e) The Company in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at Closing;
(f) The Purchasers and the Company shall have executed a registration rights agreement substantially in the form attached hereto as Exhibit A;
(g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”);
(h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and
(i) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceability.
Conditions of Underwriters’ Obligations The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company contained herein or in certificates of any officer of the Company or any of its subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following further conditions:
Conditions to Obligations of the Buyer The obligations of the Buyer under this Agreement are subject to the fulfillment, at the Closing Date, of the following conditions precedent, each of which may be waived in writing in the sole discretion of the Buyer:
Conditions to Buyer’s Obligations The obligations of Buyer to consummate the transactions provided for hereby are subject, in the discretion of Buyer, to the satisfaction, on or prior to the Closing Date, of each of the following conditions, any of which may be waived by Buyer:
Conditions to Seller’s Obligations In addition to the conditions set forth in Section 8.3, the obligations of Seller to effect the Closing shall be subject to the following conditions, any one or more of which may be waived in writing by Seller:
(a) The representations and warranties of Buyer set forth in this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, except that any such representation and warranty that is given as of a particular date or period and relates solely to such particular date or period shall be true and correct only as of such date or period; provided, however, that with respect to any representation or warranty or portion thereof that is qualified by Material Adverse Effect, materiality or similar qualifier, such representation or warranty or portion thereof shall be true and correct in all respects;
(b) Buyer shall have performed and complied with in all material respects all agreements, covenants, obligations and conditions required by this Agreement to be performed or complied with by Buyer on or prior to the Closing Date;
(c) Buyer shall have caused to be delivered to Seller a certificate executed by a duly authorized officer of Buyer certifying that the conditions set forth in Sections 8.2(a) and (b) have been satisfied;
(d) Buyer shall deliver to Seller resolutions of the board of directors of Buyer, certified by the Secretary or Assistant Secretary of Buyer, approving and authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby;
(e) Buyer shall deliver a certificate of the Secretary or Assistant Secretary of Buyer as to the incumbency of the officer executing this Agreement on behalf of Buyer and the genuineness of such officer’s signature;
(f) Seller shall have received an opinion from counsel to Buyer, with respect to the matters set forth on Schedule 8.2(f) hereto;
(g) Buyer shall deliver to Seller a duly executed copy of each Security Agreement, together with any letters of credit and other documents required to be furnished by Buyer thereunder;
(h) Buyer shall deliver to Seller a copy of each Replacement Software License, duly executed by each party thereto;
(i) All authorizations, filings, notifications, consents, orders and approvals set forth on Schedule 4.4 other than the Excluded Consents shall have been obtained and shall remain in full force and effect; provided, however, that any such authorization, filing, notification, consent, order or approval which requires, as a condition to its effectiveness or continued effectiveness, that Seller (or any of its Affiliates) pay or provide any compensation or service to or at the direction of a Governmental Authority or to or at the direction of a third party other than a Governmental Authority or otherwise incur any obligation to such a Governmental Authority or its designee or to a third party other than a Governmental Authority or such third party’s designee (other than as may be specifically set forth in the Permit, Lease, or contract at issue and except for the payment of routine filing fees), shall not be considered an authorization, consent, order or approval satisfying this Section 8.2(i) unless Seller agrees in its sole and unfettered discretion to pay or provide such compensation or service or incur such obligation (or to cause or permit any of its Affiliates to pay or provide such compensation or service or incur such obligation); and
(j) To the extent that an Excluded Consent has not been obtained, any authorization, filing, notification, consent, order and approval required to be made to or obtained from a Governmental Authority or a third party other than a Governmental Authority in order to terminate, on or prior to the Closing Date, the certificate of public convenience and necessity (or comparable authority) to which such Excluded Consent relates shall, as applicable, have been made or obtained and shall be in full force and effect; provided, however, that any such authorization, filing, notification, consent, order or approval which requires, as a condition to its effectiveness or continued effectiveness, that Seller (or any of its Affiliates) pay or provide any compensation or service to or at the direction of a Governmental Authority or to or at the direction of a third party other than a Governmental Authority or otherwise incur any obligation to such a Governmental Authority or its designee or to a third party other than a Governmental Authority or such third party’s designee (other than as may be specifically set forth in the Permit, Lease, or contract at issue and except for the payment of routine filing fees), shall not be considered an authorization, filing, notification, consent, order or approval satisfying this Section 8.2(j) unless Seller agrees in its sole and unfettered discretion to pay or provide such compensation or service or incur such obligation (or to cause or permit any of its Affiliates to pay or provide such compensation or service or incur such obligation).
