Common use of Conditions of Obligations of Purchaser Clause in Contracts

Conditions of Obligations of Purchaser. The obligations of Purchaser to consummate the purchase and sale under this Agreement are subject to the satisfaction of the following conditions, each of which may be waived in writing by Purchaser: (a) The representations, warranties and covenants of Seller set forth in Article II of this Agreement and in each certificate, agreement, document, or instrument delivered pursuant hereto on or before the Closing Date or in connection with the transactions contemplated hereby on the Closing Date shall have been and shall be true and correct in all material respects on the date of this Agreement and shall be true and correct in all material respects on the Closing Date, as though made on and as of the Closing Date. (b) Seller shall have performed in all material respects its covenants, agreements and obligations required to be performed under this Agreement prior to and on the Closing Date. (c) Seller shall have delivered to Purchaser the duly authorized and executed General Conveyance, Transfer and Assignment, and such other conveyance documents that Purchaser may reasonably request to effect the transfer and conveyance of the Business to Purchaser. (d) All consents and approvals of all Persons necessary for the consummation of the Transaction under Seller's organizational documents or any agreement, permit, law or regulation shall have been received and delivered to Purchaser or have been granted or otherwise deemed satisfied by any Order of the Bankruptcy Court, all notices to any Person required by any of the foregoing to be given in respect of the Transaction shall have been duly given, and all necessary action shall have been taken to assign to Purchaser the Assigned Leases (e) Purchaser shall have entered into agreements with Seller's key officers prohibiting said officers from competing with Purchaser for at least three (3) years. (f) The Approval Order shall have been issued and entered and shall have become a Final Order. (g) Seller shall have given notice to all known creditors in the Bankruptcy Case of the hearing for the approval of the transactions contemplated by this Agreement to the extent required by the Bankruptcy Code and the Bankruptcy Court.

Conditions of Obligations of Purchaser. The obligations obligation of Purchaser to consummate effect the purchase and sale under this Agreement are Closing shall be subject to the satisfaction at or prior to the Closing of the following conditions, each of which may be unless specifically waived in writing by Purchaser: (a) The representations, warranties and covenants of Seller set forth in Article II of this Agreement and in each certificate, agreement, document, Fundamental Reps (disregarding all materiality or instrument delivered pursuant hereto on or before the Closing Date or in connection with the transactions contemplated hereby on the Closing Date shall have been and Company Material Adverse Effect qualifiers) shall be true and correct in all material respects on as of the date of this Agreement and the Closing Date. The other representations and warranties of the Company (disregarding all materiality or Company Material Adverse Effect qualifiers) shall have been true and correct as of the date of this Agreement and shall be true and correct in all material respects on the Closing Date, as though made on and as of the Closing DateDate (except for representations and warranties that address matters only as of a specific date, which shall be true and correct as of such date). (b) Seller The Company, the Sellers and their Affiliates shall have performed and complied, in all material respects its covenantsrespects, agreements with all obligations and obligations covenants required to be performed or complied with by them under this Agreement or any Ancillary Agreement at or prior to and on the Closing Date. (c) Seller The Company shall not have delivered to Purchaser the duly authorized and executed General Conveyance, Transfer and Assignment, and such other conveyance documents that Purchaser may reasonably request to effect the transfer and conveyance of the Business to Purchasersuffered a Company Material Adverse Effect. (d) (i) All consents consents, permits and approvals of Governmental Entities and expiration or termination of all Persons waiting periods (including all extensions thereof) that may be necessary for in connection with the execution of this Agreement and the Ancillary Agreements and the consummation of the Transaction transactions contemplated hereby and thereby, including under Seller's organizational documents applicable Law pertaining to antitrust, competition or any agreementfair trade or transactions resulting in control of a U.S. business by a foreign person, permitand (ii) each private third party notice, law consent or regulation waiver and termination of agreement set forth on Schedule 7.2(d)(ii), shall have been received provided or obtained with no conditions attached and delivered to no expense imposed on the Company, Purchaser or have been granted or otherwise deemed satisfied by any Order of the Bankruptcy Court, all notices to any Person required by any of the foregoing to be given in respect of the Transaction shall have been duly given, and all necessary action shall have been taken to assign to Purchaser the Assigned Leasestheir Affiliates. (e) Purchaser No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered into agreements with Seller's key officers any order, executive order, stay, decree, judgment or injunction (preliminary or permanent) or statute, rule or regulation which is in effect and which has the effect of making the transactions contemplated by this Agreement or the Ancillary Agreements illegal or otherwise prohibiting said officers from competing with Purchaser for at least three (3) years. (f) The Approval Order shall have been issued and entered and shall have become a Final Order. (g) Seller shall have given notice to all known creditors in the Bankruptcy Case of the hearing for the approval consummation of the transactions contemplated by this Agreement or the Ancillary Agreements. (f) No Proceeding shall be pending or threatened against the Company or its Subsidiaries; and no Proceeding shall be pending or threatened against any Seller or against Purchaser with respect to the extent Company, this Agreement or the transactions contemplated hereby. (g) The Board of Directors of the Company shall have unanimously approved this Agreement, the Ancillary Agreements to which the Company is or will be a party, and the other transactions contemplated hereby and thereby, and such approval shall not have been withdrawn, qualified or rescinded. (i) Each of the Sellers shall have entered into this Agreement, (ii) each Key Employee shall have executed and delivered to Purchaser an Offer Letter and Proprietary Rights Agreement, (iii) each of the Key Consultants shall have executed and delivered to Purchaser a Consulting Agreement, and (iv) each of the Persons set forth on Schedule A-3 hereto shall have executed and delivered to Purchaser a Restrictive Covenants Agreement. Each such agreement shall be and remain in full force and effect, and no such Person shall have terminated or threatened to terminate employment or services or any such agreement. (i) Purchaser shall have received a certificate of good standing of the Company and each of its Subsidiaries from the Secretary of State of the State of Delaware and all other jurisdictions in which the Company or any of its Subsidiaries is required to be qualified to do business. (j) The Company shall have received resignation letters from all officers and directors of the Company and each of its Subsidiaries, effective as of the Closing. (k) Purchaser shall have received the Spreadsheet Certificate from the Company pursuant to Section 1.5(b) in form and substance satisfactory to Purchaser. (l) The Company shall have delivered to Purchaser the Section 280G Waivers and shall have submitted the payments which were waived to the stockholders as described in Section 5.5(b) in form and substance satisfactory to Purchaser. (m) Purchaser shall have received from the Company an officer’s certificate certifying to the fulfillment of the conditions specified in Section 7.2(a) through (f) in form and substance reasonably satisfactory to Purchaser (the “Company Certificate”). (n) Purchaser shall have received a certificate, validly executed by the Bankruptcy Code Secretary of the Company, certifying as to the resolutions of the Board of Directors of the Company approving this Agreement, the Ancillary Agreements to which the Company is or will be a party, and the Bankruptcy Courttransactions contemplated hereby and thereby, in form and substance reasonably satisfactory to Purchaser (the “Secretary’s Certificate”). (o) Purchaser shall have received from each Stockholder a Spousal Consent to this Agreement from any Person with any community or marital property interest in the Shares sold by such Stockholder and certificates representing the Shares sold such Stockholder, duly and validly endorsed in favor of Purchaser or accompanied by a separate stock power duly and validly executed by such Stockholder and otherwise sufficient to vest in Purchaser good and marketable title to such Shares.

Conditions of Obligations of Purchaser. The obligations obligation of Purchaser to consummate effect the purchase and sale under this Agreement are Transaction is subject to the satisfaction at or prior to the Closing Date of the following conditions, each of which may be unless specifically waived in writing by Purchaser: (a) The representations, representations and warranties of Company and covenants of Seller set forth in Article Articles II and III of this Agreement and in each certificate, agreement, document, or instrument delivered pursuant hereto on or before the Closing Date or in connection with the transactions contemplated hereby on the Closing Date shall have been and shall be true and correct in all material respects on as of the date of this Agreement and the Closing Date (except that (i) the representations and warranties contained in Sections 2.1, 2.2, 2.3, 2.4, 2.5, 2.6, 3.1, 3.2, 3.3 and 3.4 and (ii) each other representation or warranty to the extent already qualified by materiality or a Company Material Adverse Effect, shall be true and correct in all material respects on the Closing Date, as though made on and as of the Closing Daterespects). (b) Seller shall have performed and complied, in all material respects its covenantsrespects, agreements with all obligations and obligations covenants required to be performed or complied with by it under this Agreement at or prior to and on the Closing Date. (c) Seller From the date of this Agreement through the Closing, the Company shall not have suffered a Company Material Adverse Effect, and no events, or facts which could reasonably be expected to result in a Company Material Adverse Effect shall have delivered to Purchaser the duly authorized and executed General Conveyance, Transfer and Assignment, and such other conveyance documents that Purchaser may reasonably request to effect the transfer and conveyance of the Business to Purchaseroccurred or arisen. (d) All consents terminations, consents, permits and approvals of all Persons necessary for Governmental Entities and other private third parties listed in Schedules 2.4, 3.4 and 4.4 of the Disclosure Schedule (“Required Consents”) and termination statements with respect to the Liens on Units identified in Schedule 2.1 of the Disclosure Schedule shall have been obtained (with copies delivered to Purchaser) with no material adverse conditions attached and no material expense imposed on the Company, and no Required Consents shall have been withdrawn or suspended. (e) No litigation or proceeding shall be threatened or pending against Purchaser, Seller or the Company which enjoins, presents or seeks to enjoin or prevent the consummation of the Transaction under Seller's organizational documents or any agreement, permit, law or regulation shall have been received and delivered which could reasonably be expected to Purchaser or have been granted or otherwise deemed satisfied by any Order of the Bankruptcy Court, all notices to any Person required by any of the foregoing to be given result in respect of the Transaction shall have been duly given, and all necessary action shall have been taken to assign to Purchaser the Assigned Leases (e) Purchaser shall have entered into agreements with Seller's key officers prohibiting said officers from competing with Purchaser for at least three (3) yearsa Company Material Adverse Effect. (f) The Approval Order Purchaser shall have been issued received certificates of good standing of the Company and entered Seller from the Secretary of State of the State of Delaware and shall have become a Final Orderall other jurisdictions in which they are required to be qualified to do business. (g) Seller Purchaser shall have given notice to all known creditors received a legal opinion from DLA Piper dated the Closing Date in the Bankruptcy Case form attached hereto as Exhibit F. (h) Purchaser shall have received a legal opinion from Xxxxxx Xxxxxxx LLP dated December 23, 2008 in the form attached hereto as Exhibit G. (i) Purchaser shall have received from Seller an officer’s certificate certifying to the fulfillment of the hearing for conditions specified in Sections 7.2(a), (b), (c), (d) and (e) (such certification as to Section 7.2(e) being only as to litigation threatened or pending against the approval Company or Seller). (j) Seller and the Company shall have executed and delivered the Unitholders Agreement in substantially the form attached hereto as Exhibit E. (k) Seller and Newco shall have executed and delivered the New Operating Agreement and Purchaser shall have been admitted as a Member of the transactions contemplated Company in accordance with terms of the New Operating Agreement. (l) Two directors designated by this Agreement Purchaser shall have been appointed to the extent required by Company’s Board of Directors as Class A-1 Directors (as defined in the Bankruptcy Code New Operating Agreement). (m) The holders of shares of Seller common stock listed on Schedule 7.2(m) of the Disclosure Schedule shall have delivered to Purchaser a Voting Agreement (as defined in the Unitholders Agreement). (n) Seller, the Company and the Bankruptcy CourtEscrow Agent shall have executed and delivered the Escrow Agreement. (o) Xxxxxxxxx shall have executed and delivered a resignation as the Manager effective as of the Closing.