Conditions Precedent to Obligation of the Purchaser. The obligation of the Purchaser to effect the Contemplated Transactions shall be subject to the satisfaction at or prior to the Closing Date of the conditio ns set forth in Section 7.01 and of the following additional conditions precedent (compliance with which or the occurrence of which may be waived in whole or in part in a writing executed by the Purchaser): (a) (i) the Seller shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Closing Date and (ii) the representations and warranties of the Seller contained in this Agreement, without giving effect to any qualifications therein relating to Seller's Knowledge (A) that are not qualified as to materiality or Material Adverse Effect, if not true and correct in all material respects as of the Closing Date, as if made as of such time, shall not have a Material Adverse Effect, and (B) that are qualified as to materiality or Material Adverse Effect shall be true and correct when made and as of the Closing Date, as if made as of such time (except in each case to the extent such representations and warranties shall be expressly made as of a certain date, in which case such representations and warranties shall be true and correct in all material respects or true and correct, as the case may be, as of such earlier date); (b) no event or circumstance shall have occurred since the date of this Agreement which, independently or together with any other event or circumstance that has so occurred or is reasonably likely to occur, has or is reasonably likely to have imminently a Material Adverse Effect; (c) all Governmental Requirements necessary in connection with the Contemplated Transactions have been fulfilled in a manner consistent with Section 5.07, except as would not have a Material Adverse Effect; (d) the Seller shall have obtained the consents required to transfer to the Purchaser or one or more of its Designees its rights, title and interests in the Contracts identified in Section 7.03(d) of the Disclosure Letter to the extent such consents are required by law with respect to the Contemplated Transactions, after giving effect to the Sale Order; (e) subject to Section 1.04(i), any and all Cure Amounts in respect of Assumed Contracts shall have been paid by the Seller and all such contracts shall have been assumed by the Seller for assignment to the Purchaser; provided, however, that this condition shall not be satisfied if the exclusion of the Assumed Contracts by the Purchaser pursuant to Section 1.04(i), either individually or in the aggregate, would have a Material Adverse Effect on the Business; (f) the Parmalat Name Rights License shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered to the Purchaser; (g) the DASI Technology Agreement shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered to the Purchaser; (h) shared services agreements among the Purchaser and the Seller as provided by Section 1.06(b) reasonably acceptable to the Purchaser and the Seller shall be in full force and effect; and (i) the Owner's Policy of Title Insurance shall have been issued to Purchaser or its Designee pursuant to and in accordance with the title commitment referred to in Section 5.19. It is understood and agreed that, if the Purchaser waives the requirements of paragraphs (f) or (g) of this section, and the Closing occurs, then Purchaser shall not thereby attain any right (if any) in or under the Parmalat Name Rights License or the DASI Technology Agreement that it does not already have and will not attain any right (if any) in or with respect to the intellectual property referred to therein that it does not already have and that neither Seller nor any of its Affiliates shall have any liability to Purchaser as a result of the failure of achievement of such requirements at the time of Closing or any subsequent failure to achieve such requirements.
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Conditions Precedent to Obligation of the Purchaser. The obligation of the Purchaser to effect the Contemplated Transactions transactions contemplated by this Agreement shall be subject to the satisfaction or waiver at or prior to the Closing Date of the conditio ns set forth in Section 7.01 and of the following additional conditions precedent (compliance with which or the occurrence of which may be waived in whole or in part in a writing executed by the Purchaser):conditions:
(a) (i) the Seller shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Closing Date and (ii) the representations and warranties of the Seller Sellers contained in this AgreementSections 3.01 through 3.04, without giving effect to any qualifications therein relating to Seller's Knowledge 3.06(b) and (Ac) that are not qualified as to materiality or Material Adverse Effect, if not and 3.09(c)(i) and (ii) shall be true and correct in all material respects as of the Closing Date, as if made as of such time, shall not have a Material Adverse Effect, date hereof and (B) that are qualified as to materiality or Material Adverse Effect shall be true and correct when made on and as of the Closing Date, as if made as of such time (except in each case to the extent such representations and warranties shall be expressly made as of a certain date, in which case such representations and warranties shall be true and correct in all material respects or true and correct, as the case may be, as of such earlier date);
(b) no event or circumstance shall have occurred since the date of this Agreement which, independently or together with any other event or circumstance that has so occurred or is reasonably likely to occur, has or is reasonably likely to have imminently a Material Adverse Effect;
(c) all Governmental Requirements necessary in connection with the Contemplated Transactions have been fulfilled in a manner consistent with Section 5.07, except as would not have a Material Adverse Effectmaterial adverse effect on the Purchaser's ability to operate the assets;
(b) the Sellers shall have made all the deliveries required to be delivered by the Sellers pursuant to Section 2.02(a) at or prior to the Closing Date;
(c) the Purchaser shall have approved the results of any and all due diligence inspections, investigations and inquiries with respect to the Sellers' interest in and the assets of Bluevector LLC, a Delaware limited liability company, as Purchaser may elect to make or obtain; and
(d) with respect to (x) the Seller Alliance Agreement dated as of April 1, 2000 by and between Microsoft Corporation, a Washington corporation, and marchFIRST Consulting, Inc. and (y) the related Loan Agreement and Unsecured Promissory Note dated July 5, 2000 made by marchFIRST Consulting, Inc. in favor of MS Channel Initiatives Corp., a Nevada corporation, Microsoft Corporation and MS Channel Initiatives Corp. shall have obtained the consents required agreed in writing to transfer (i) waive or settle any claim for breach or amounts due under such agreements in amounts, on terms and subject to conditions acceptable to the Purchaser or one or more of its Designees its rights, title Purchaser; and interests in (ii) terminate such agreements and cancel such note at the Contracts identified in Section 7.03(dClosing; and
(e) of the Disclosure Letter to the extent such consents are required by law with respect to the Contemplated Transactionsjoint venture relationships with Dentsu and Samsung (which for purposes of this Agreement are not severable), after giving effect Dentsu shall have agreed in writing to the Sale Order;
(e) modify its joint venture relationship on terms and subject to Section 1.04(i), any and all Cure Amounts in respect of Assumed Contracts shall have been paid by the Seller and all such contracts shall have been assumed by the Seller for assignment conditions acceptable to the Purchaser; provided, however, that in the event any of the conditions set forth in subsections (c), (d) or (e) above are not satisfied such condition will be deemed satisfied in such cases, respectively, by the Purchaser electing to exclude from the Acquired Assets Bluevector, the HostOne business or the joint venture relationships (non-severable for purposes of this condition Agreement) with Dentsu and Samsung (and, in each case, the related assets, Contracts, employees and Assumed Liabilities), respectively, from the transactions contemplated hereby, and this Agreement shall be deemed, upon a Closing based upon such election(s), to have been amended to give effect to such changes with no change in the consideration to be received by Sellers except that the Purchaser shall not be satisfied if the exclusion assume any of the Assumed Contracts by the Purchaser pursuant Liabilities related to Section 1.04(i), either individually or in the aggregate, would have a Material Adverse Effect on the Business;
(f) the Parmalat Name Rights License shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered to the Purchaser;
(g) the DASI Technology Agreement shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered to the Purchaser;
(h) shared services agreements among the Purchaser and the Seller as provided by Section 1.06(b) reasonably acceptable to the Purchaser and the Seller shall be in full force and effect; and
(i) the Owner's Policy of Title Insurance shall have been issued to Purchaser or its Designee pursuant to and in accordance with the title commitment referred to in Section 5.19. It is understood and agreed that, if the Purchaser waives the requirements of paragraphs (f) or (g) of this section, and the Closing occurs, then Purchaser shall not thereby attain any right (if any) in or under the Parmalat Name Rights License or the DASI Technology Agreement that it does not already have and will not attain any right (if any) in or with respect to the intellectual property referred to therein that it does not already have and that neither Seller nor any of its Affiliates shall have any liability to Purchaser as a result of the failure of achievement of such requirements at the time of Closing or any subsequent failure to achieve such requirementsexcluded Acquired Assets.
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Conditions Precedent to Obligation of the Purchaser. The obligation of the Purchaser to effect the Contemplated Transactions shall be subject to the satisfaction at or prior to the Closing Date of the conditio ns conditions set forth in Section 7.01 8.01 and of the following additional conditions precedent (compliance with which or the occurrence of which may be waived in whole or in part in a writing executed by the Purchaser):
(a) (i) the each Seller shall have performed in all material respects its their obligations under this Agreement required to be performed by it them at or prior to the Closing Date and (ii) the representations and warranties of the Seller Sellers contained in this Agreement, without giving effect to any disregarding all qualifications therein and exceptions contained in such representations and warranties relating to Seller's Knowledge (A) that are not qualified as to materiality or Material Adverse Effect, if not shall be true and correct in all material respects respects, in each case as of the date of this Agreement and as of the Closing Date, Date as if made at and as of such timedates, it being understood and agreed (A) that the condition set forth in clause (ii) of this Section 8.03(a) shall not be deemed to have been satisfied unless any failure to be true has had, individually or in the aggregate with all other failures relating to the various representations and warranties of the Sellers, a Material Adverse Effect, and (B) that are qualified as to materiality or Material Adverse Effect shall be true and correct when made and as of the Closing Date, as if made as of such time (except in each case to the extent such representations and warranties shall be expressly made as of a certain date, in which case such representations and warranties shall specific date need be true and correct in all material respects or true and correct, as the case may be, only as of such earlier that date);
(b) no event or circumstance all of the documents, agreements and certificates described in Section 3.02(b) shall have occurred since the date of this Agreement which, independently or together with any other event or circumstance that has so occurred or is reasonably likely to occur, has or is reasonably likely to have imminently a Material Adverse Effectbeen delivered as described therein;
(c) all consents and approvals of third parties and Governmental Requirements Authorities necessary in connection with to consummate the Contemplated Transactions have been fulfilled in a manner consistent with Section 5.07transactions contemplated hereby, except as would not have a Material Adverse Effect;
(d) other than those consents and approvals the Seller shall have obtained the consents required to transfer to the Purchaser or one or more absence of its Designees its rightswhich, title and interests in the Contracts identified in Section 7.03(d) of the Disclosure Letter to the extent such consents are required by law with respect to the Contemplated Transactions, after giving effect to the Sale Order;
(e) subject to Section 1.04(i), any and all Cure Amounts in respect of Assumed Contracts shall have been paid by the Seller and all such contracts shall have been assumed by the Seller for assignment to the Purchaser; provided, however, that this condition shall not be satisfied if the exclusion of the Assumed Contracts by the Purchaser pursuant to Section 1.04(i), either individually or in the aggregate, would not have a Material Adverse Effect on and would not materially impair the BusinessPurchaser's ability to operate the Business substantially in the same manner as the Business is operated immediately prior to the Closing, shall have been obtained in a form reasonably satisfactory to Purchaser, without any diminution in the value of the Acquired Assets;
(d) the Purchaser shall have received all Permits necessary to allow the Purchaser to operate the Business immediately after the Closing substantially in the same manner as the Business is operated immediately prior to the Closing, other than those Permits the absence of which, individually or in the aggregate, would not have a Material Adverse Effect and would not materially impair the Purchaser's ability to operate the Business substantially in the same manner as the Business is operated immediately prior to the Closing;
(e) no Material Adverse Effect shall have occurred, nor shall any event or circumstance which could reasonably be expected to have a Material Adverse Effect shall have occurred;
(f) at least twenty-five million dollars ($25,000,000) and not more than thirty million dollars ($30,000,000) of Cash and Cash Equivalents shall be held by the Parmalat Name Rights License shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered to the PurchaserForeign Subsidiaries;
(g) with respect to (i) Transfer Taxes due in connection with the DASI Technology Agreement transactions contemplated by this Agreement, and all income Taxes due on the sale of all of the outstanding capital stock of Polaroid de Mexico S.A. de C.V. pursuant to Article 190 of the Income Tax Law (Mexico), (ii) all withholding Taxes due in connection with the repatriation of Cash and Cash Equivalents held by the Foreign Subsidiaries to the Sellers prior to the Closing, and (iii) all California sales and use Taxes relating to periods from July 1997 through June 30, 2000, including any proposed sales and use Taxes stated by way of notice, audit report, or any other correspondence received from the California Board of Equalization, the Sellers shall have become fully effective provided evidence reasonably satisfactory to the Purchaser (x) of the full payment of all such Taxes and/or (y) to the extent such Taxes have not been paid in all respects and be full, that the Sellers have set aside (or have caused the applicable Foreign Subsidiaries to set aside) funds in full force and effect and all necessary approvals and authorizations a separate escrow account reasonably satisfactory to effectuate the same shall have been obtained and evidence thereof delivered Purchaser (or, in the case of any Foreign Subsidiary, in such other manner as is reasonably satisfactory to the Purchaser;), in amounts sufficient to pay in full any and all such unpaid Taxes, such funds to be held in escrow with an independent escrow agent for the purpose of paying such Taxes; and
(h) shared services agreements among the Purchaser and the Seller as Sellers shall have provided by Section 1.06(b) evidence reasonably acceptable satisfactory to the Purchaser and that the Seller shall be in full force and effect; and
(i) Sellers, at the OwnerPurchaser's Policy of Title Insurance request, shall have been issued caused, immediately prior to Purchaser the Closing, any outstanding intercompany indebtedness owed by any Foreign Subsidiary to any Seller to be contributed to the capital of such Foreign Subsidiary or its Designee pursuant to and in accordance with the title commitment referred to in Section 5.19. It is understood and agreed that, if Foreign Subsidiaries as may be designated by the Purchaser waives the requirements of paragraphs (f) or (g) of this section, and the Closing occurs, then Purchaser shall not thereby attain any right (if any) in or under the Parmalat Name Rights License or the DASI Technology Agreement that it does not already have and will not attain any right (if any) in or with respect prior to the intellectual property referred to therein that it does not already have and that neither Seller nor any of its Affiliates shall have any liability to Purchaser as a result of the failure of achievement of such requirements at the time of Closing or any subsequent failure to achieve such requirementsClosing.
Appears in 1 contract
Conditions Precedent to Obligation of the Purchaser. The obligation of the Purchaser to effect the Contemplated Transactions shall be subject to the satisfaction at or prior to the Closing Date of the conditio ns set forth in Section 7.01 and of the following additional conditions precedent (compliance with which or the occurrence of which may be waived in the Purchaser's sole discretion, in whole or in part in part, by a writing executed by the PurchaserPurchaser and delivered to the Sellers only, without any requirement that notice of such waiver be given to the Bankruptcy Court or to any other Person):
(a) (i) the Seller The Sellers shall have performed in all material respects its their respective obligations under this Agreement required to be performed by it them at or prior to the Closing Date Date, except where non-performance does not have a Sellers Material Adverse Effect; and (ii) the representations and warranties of the Seller Sellers contained in this Agreement, without giving effect to any qualifications therein relating to Seller's Knowledge (A) that are not qualified as to materiality or Material Adverse Effect, if not true and correct in all material respects as of the Closing Date, as if made as of such time, shall not have a Material Adverse Effect, and (B) that are qualified as to materiality or Material Adverse Effect shall be true and correct when made and as of the Closing Date, as if made as of such time (except in each case to the extent such representations and warranties shall be expressly made as of a certain date, in which case such representations and warranties Agreement shall be true and correct in all material respects or true except where the falsity of the representations and correct, as the case may be, as of such earlier date);
(b) no event or circumstance shall warranties does not have occurred since the date of this Agreement which, independently or together with any other event or circumstance that has so occurred or is reasonably likely to occur, has or is reasonably likely to have imminently a Sellers Material Adverse Effect;
(b) The Sellers shall have obtained all of the Sellers Required Approvals;
(c) The Purchaser shall have received or otherwise hold all Governmental Requirements government approvals, clearances, consents and authorizations necessary to permit the Purchaser (or, if applicable and at the discretion of the Purchaser, the Purchaser shall have received adequate assurances reasonably satisfactory to it that all such approvals, clearances, consents and authorizations will be given) to operate the Business; and no Permits shall be revoked or, to the extent applicable, shall fail to be transferred to the Purchaser without additional expense and subject to no additional restrictions or burdens on the permittee other than those which, in connection with the Contemplated Transactions have been fulfilled in a manner consistent with Section 5.07aggregate, except as would not have a Material Adverse Effectare immaterial;
(d) the Seller No Action shall have obtained the consents required to transfer to been commenced by or before any Governmental Authority against the Purchaser or one the Sellers, seeking to restrain or more of its Designees its rightsmaterially and adversely alter the Contemplated Transactions that, title and interests in the Contracts identified in Section 7.03(d) reasonable good faith determination of the Disclosure Letter Purchaser, is likely to the extent such consents are required by law with respect render it impracticable or unlawful to consummate the Contemplated Transactions, after giving effect to the Sale Order;
(e) subject to Section 1.04(i), any and all Cure Amounts in respect of Assumed Contracts The Sellers shall have been paid by the Seller and all such contracts shall have been assumed by the Seller for assignment delivered to the Purchaser; provided, however, that this condition shall not be satisfied if Purchaser the exclusion of the Assumed Contracts by the Purchaser pursuant to documents set forth in Section 1.04(i), either individually or in the aggregate, would have a Material Adverse Effect on the Business3.4;
(f) the Parmalat Name Rights License shall have become fully effective The conditions set forth in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same this Section 8.3 shall have been obtained and evidence thereof delivered to the Purchaser;satisfied on or before November 13, 2000; and
(g) The independent public accountants of the DASI Technology Agreement Sellers shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered to the Purchaser;
(h) shared services agreements among the Purchaser and the Seller as provided by Section 1.06(b) reasonably acceptable to the Purchaser and the Seller shall be in full force and effect; and
(i) the Owner's Policy of Title Insurance shall have been issued to Purchaser or its Designee pursuant to and in accordance with the title commitment referred to in Section 5.19. It is understood and agreed that, if the Purchaser waives the requirements of paragraphs (f) or (g) of this section, and the Closing occurs, then Purchaser shall not thereby attain any right (if any) in or under the Parmalat Name Rights License or the DASI Technology Agreement that it does not already have and will not attain any right (if any) in or with respect to the intellectual property referred to therein that it does not already have and that neither Seller nor any of its Affiliates shall have any liability to Purchaser as a result Sellers audited financial statements of the failure of achievement of such requirements Sellers for the year ended December 31, 1999 at the time expense of Closing or any subsequent failure to achieve such requirementsPurchaser.
Appears in 1 contract
Samples: Asset Purchase Agreement (McSi Inc)
Conditions Precedent to Obligation of the Purchaser. The obligation of the Purchaser to effect the Contemplated Transactions transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing Date of the conditio ns set forth in Section 7.01 and of the following additional conditions precedent (compliance with which or the occurrence of which may be waived in whole or in part in a writing executed by the Purchaser):
, unless such a waiver is prohibited by law): (a) (i) the each Seller shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Closing Date and (ii) Date; the representations and warranties of the Seller Sellers contained in this Agreement, without giving effect to any qualifications therein relating to Seller's Knowledge (A) Agreement that are not qualified as with respect to materiality (i.e., with respect to the occurrence or likely occurrence of a Seller Material Adverse Effect, if not Effect or materiality) shall be true and correct in all material respects as of the Closing Daterespects, as if made as of such time, shall not have a Material Adverse Effect, and (B) that are qualified as to materiality or Material Adverse Effect shall be true and correct when made and as of the Closing Date, as if made as of such time (except in each case to the extent such representations and warranties shall be expressly made as of a certain date, in which case such representations and warranties that are not so qualified shall be true and correct in all material respects and all breaches of such non-qualified representations and warranties, when combined with all matters and conditions that, but for the qualification by reference to a Seller Material Adverse Effect or true materiality, would have constituted breaches of the representations and correctwarranties that are qualified by such reference, as the shall not collectively constitute or give rise to a Seller Material Adverse Effect, in each case may be, as of such earlier date);
(b) no event or circumstance shall have occurred since the date of this Agreement which, independently or together with any other event or circumstance that has so occurred or is reasonably likely to occur, has or is reasonably likely to have imminently a Material Adverse Effect;
(c) all Governmental Requirements necessary in connection with the Contemplated Transactions have been fulfilled in a manner consistent with Section 5.07and, except as would not have a Material Adverse Effect;
(d) the Seller shall have obtained the consents required to transfer to the Purchaser or one or more of its Designees its rights, title and interests in the Contracts identified in Section 7.03(d) of the Disclosure Letter to the extent such consents are required by law with respect to representations and warranties which speak as to an earlier date, at and as of the Contemplated TransactionsClosing Date as if made at and as of such date; and the Purchaser shall have received a certificate of the chairman of the board, after giving effect the president, a vice president or the chief financial officer of the Company as to the Sale Order;
satisfaction of this condition; (eb) subject to Section 1.04(i), any the 363 Order and all Cure Amounts in respect of Assumed Contracts 365 Order shall have been paid entered by the Seller Bankruptcy Court in substantially the form contemplated by this Agreement and all such contracts shall not have been assumed by the Seller for assignment reversed, stayed, modified or amended in any manner adverse to the Purchaser; provided, however, that this condition and shall not be satisfied if the exclusion of the Assumed Contracts by the Purchaser pursuant subject to Section 1.04(i)any pending appeal or motion for rehearing or reconsideration, either individually or in the aggregate, would have a Material Adverse Effect on the Business;
(f) the Parmalat Name Rights License and shall have become fully effective in all respects remain valid and be in full force binding and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered to the Purchaser;
(g) the DASI Technology Agreement shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered to the Purchaser;
(h) shared services agreements among the Purchaser and the Seller as provided by Section 1.06(b) reasonably acceptable to the Purchaser and the Seller shall be in full force and effect; and(c) Purchaser or any of the Purchaser's Subsidiaries shall have received or otherwise hold all United States, Illinois, Michigan, Ohio, New York and Massachusetts government approvals, clearances, consents and authorizations necessary to permit Purchaser (or, if applicable, Purchaser shall have received adequate assurances reasonably satisfactory to it that all such approvals, clearances, consents and authorizations will be given) to operate the Business in the United States, Illinois, Michigan, Ohio, New York and Massachusetts, and no such Seller Permits shall be revoked, or, to the extent applicable, shall fail to be transferred to Purchaser without additional expense and subject to no additional restrictions or burdens on the permittee other than those which in the aggregate are immaterial; and (d)
(i) Subject to clause (iii) below, all consents, waivers, approvals, certificates and other authorizations required to be obtained from the Owner's Policy FCC (the "FCC Approvals") or from any other governmental authority asserting jurisdiction over the Company or one of Title Insurance its subsidiaries (the "State Approvals") (collectively, the "Regulatory Approvals"), including, without limitation, any State PUC, that are required in order to consummate the transactions contemplated hereby shall have been issued obtained by a Final Order (as hereinafter defined). Other than those which in the aggregate are immaterial, all filings and notices required to Purchaser be made by the Sellers prior to the consummation of the transaction contemplated hereby shall have been made. For purposes of this Agreement, "Final Order" shall mean an action by the FCC or its Designee pursuant to and in accordance with other regulatory authority (including State PUCs) (x) that is not reversed, stayed, enjoined, set aside, annulled or suspended within the title commitment referred to in Section 5.19. It is understood and agreed thatdeadline, if the Purchaser waives the requirements of paragraphs any, provided by applicable statute or regulation, (fy) or (g) of this section, and the Closing occurs, then Purchaser shall not thereby attain any right (if any) in or under the Parmalat Name Rights License or the DASI Technology Agreement that it does not already have and will not attain any right (if any) in or with respect to which no request for stay, motion or petition for reconsideration, application or request for review, or notice of appeal or other judicial petition for review that is filed within such period is pending and (z) as to which the intellectual property referred to therein that it does not already deadlines, if any, for filing any such request, motion, petition, application, appeal or notice, and for the entry by the FCC or other regulatory authority of orders staying, reconsidering or reviewing on its own motion have and that neither Seller nor any of its Affiliates shall have any liability to Purchaser as a result of the failure of achievement of such requirements at the time of Closing or any subsequent failure to achieve such requirementsexpired.
Appears in 1 contract
Conditions Precedent to Obligation of the Purchaser. The obligation of the Purchaser to effect the Contemplated Transactions transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing Date of the conditio ns set forth in Section 7.01 and of the following additional conditions precedent (compliance with which or the occurrence of which may be waived in whole or in part in a writing executed by the Purchaser, unless such a waiver is prohibited by law):
(a) (i) the each Seller shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Closing Date and (ii) Date; the representations and warranties of the Seller Sellers contained in this Agreement, without giving effect to any qualifications therein relating to Seller's Knowledge (A) Agreement that are not qualified as with respect to materiality (i.e., with respect to the occurrence or likely occurrence of a Seller Material Adverse Effect, if not Effect or materiality) shall be true and correct in all material respects as of the Closing Daterespects, as if made as of such time, shall not have a Material Adverse Effect, and (B) that are qualified as to materiality or Material Adverse Effect shall be true and correct when made and as of the Closing Date, as if made as of such time (except in each case to the extent such representations and warranties shall be expressly made as of a certain date, in which case such representations and warranties that are not so qualified shall be true and correct in all material respects and all breaches of such non-qualified representations and warranties, when combined with all matters and conditions that, but for the qualification by reference to a Seller Material Adverse Effect or true materiality, would have constituted breaches of the representations and correctwarranties that are qualified by such reference, shall not collectively constitute or give rise to a Seller Material Adverse Effect, in each case as of the case may bedate of this Agreement and, except with respect to representations and warranties which speak as to an earlier date, at and as of the Closing Date as if made at and as of such earlier date); and the Purchaser shall have received a certificate of the chairman of the board, the president, a vice president or the chief financial officer of the Company as to the satisfaction of this condition;
(b) no event or circumstance the 363 Order and 365 Order shall have occurred since been entered by the date of Bankruptcy Court in substantially the form contemplated by this Agreement whichand shall not have been reversed, independently stayed, modified or together with amended in any other event manner adverse to the Purchaser, and shall not be subject to any pending appeal or circumstance that has so occurred motion for rehearing or is reasonably likely to occurreconsideration, has or is reasonably likely to have imminently a Material Adverse Effectand shall remain valid and binding and in full force and effect;
(c) all Governmental Requirements necessary in connection with Purchaser or any of the Contemplated Transactions have been fulfilled in a manner consistent with Section 5.07, except as would not have a Material Adverse Effect;
(d) the Seller Purchaser's Subsidiaries shall have obtained received or otherwise hold all United States, Illinois, Michigan, Ohio, New York and Massachusetts government approvals, clearances, consents and authorizations necessary to permit Purchaser (or, if applicable, Purchaser shall have received adequate assurances reasonably satisfactory to it that all such approvals, clearances, consents and authorizations will be given) to operate the consents required to transfer to the Purchaser or one or more of its Designees its rights, title and interests Business in the Contracts identified in Section 7.03(d) of the Disclosure Letter United States, Illinois, Michigan, Ohio, New York and Massachusetts, and no such Seller Permits shall be revoked, or, to the extent such consents are required by law with respect applicable, shall fail to the Contemplated Transactions, after giving effect be transferred to the Sale Order;
(e) Purchaser without additional expense and subject to Section 1.04(i), any and all Cure Amounts in respect of Assumed Contracts shall have been paid by no additional restrictions or burdens on the Seller and all such contracts shall have been assumed by the Seller for assignment to the Purchaser; provided, however, that this condition shall not be satisfied if the exclusion of the Assumed Contracts by the Purchaser pursuant to Section 1.04(i), either individually or permittee other than those which in the aggregate, would have a Material Adverse Effect on the Business;
(f) the Parmalat Name Rights License shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered to the Purchaser;
(g) the DASI Technology Agreement shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered to the Purchaser;
(h) shared services agreements among the Purchaser and the Seller as provided by Section 1.06(b) reasonably acceptable to the Purchaser and the Seller shall be in full force and effectaggregate are immaterial; and
(i) Subject to clause (iii) below, all consents, waivers, approvals, certificates and other authorizations required to be obtained from the Owner's Policy FCC (the "FCC Approvals") or from any other governmental authority asserting jurisdiction over the Company or one of Title Insurance its subsidiaries (the "State Approvals") (collectively, the "Regulatory Approvals"), including, without limitation, any State PUC, that are required in order to consummate the transactions contemplated hereby shall have been issued obtained by a Final Order (as hereinafter defined). Other than those which in the aggregate are immaterial, all filings and notices required to Purchaser be made by the Sellers prior to the consummation of the transaction contemplated hereby shall have been made. For purposes of this Agreement, "Final Order" shall mean an action by the FCC or its Designee pursuant to and in accordance with other regulatory authority (including State PUCs) (x) that is not reversed, stayed, enjoined, set aside, annulled or suspended within the title commitment referred to in Section 5.19. It is understood and agreed thatdeadline, if the Purchaser waives the requirements of paragraphs any, provided by applicable statute or regulation, (fy) or (g) of this section, and the Closing occurs, then Purchaser shall not thereby attain any right (if any) in or under the Parmalat Name Rights License or the DASI Technology Agreement that it does not already have and will not attain any right (if any) in or with respect to which no request for stay, motion or petition for reconsideration, application or request for review, or notice of appeal or other judicial petition for review that is filed within such period is pending and (z) as to which the intellectual property referred to therein that it does not already deadlines, if any, for filing any such request, motion, petition, application, appeal or notice, and for the entry by the FCC or other regulatory authority of orders staying, reconsidering or reviewing on its own motion have and that neither Seller nor any of its Affiliates shall have any liability to Purchaser as a result of the failure of achievement of such requirements at the time of Closing or any subsequent failure to achieve such requirementsexpired.
Appears in 1 contract
Conditions Precedent to Obligation of the Purchaser. The obligation of the Purchaser to effect purchase the Contemplated Transactions shall be Shares from the Company hereunder is subject to the satisfaction at or prior to waiver by the Closing Date of the conditio ns set forth in Section 7.01 and Purchaser of the following additional conditions precedent (compliance with which or as of the occurrence of which may be waived in whole or in part in a writing executed by the Purchaser):Closing:
(a) (i) the Seller representations and warranties of the Company set forth in Sections 3.01(a), (b), (c), (o) and (t) that are not qualified by Material Adverse Effect shall have performed be true and correct in all material respects its obligations under this Agreement required (without giving effect to materiality or similar phrases in the representations and warranties), and the representations and warranties of the Company set forth in Sections 3.01(a), (b), (c), (o) and (t) that are qualified by Material Adverse Effect shall be performed by it at or prior to true and correct in all respects, in each case on and as of the Closing Date (except to the extent such representations and warranties expressly relate to another date, in which case such representations and warranties shall be so true and correct on and as of such other date), (ii) the representations and warranties of the Seller contained Company set forth in this Agreement, without giving effect to any qualifications therein relating to Seller's Knowledge Sections 3.01(e) and (Ah)(ii) that are not qualified as to materiality or Material Adverse Effect, if not shall be true and correct in all material respects as of the Closing Date, as if made as of such time, shall not have a Material Adverse Effect, and (B) that are qualified as to materiality or Material Adverse Effect shall be true and correct when made on and as of the Closing Date, as if made and (iii) the representations and warranties of the Company set forth in Section 3.01 (other than Sections 3.01(a), (b), (c), (e), (h)(ii), (o) and (t)) shall be true and correct in all respects (without giving effect to materiality, Material Adverse Effect, or similar phrases in the representations and warranties) on and as of such time the Closing Date (except in each case to the extent such representations and warranties shall be expressly made as of a certain relate to another date, in which case such representations and warranties shall be true and correct in all material respects (without giving effect to materiality, Material Adverse Effect, or similar phrases in the representations and warranties) on and as of such other date), except where the failure of such representations and warranties referenced in this clause (iii) to be so true and correct, as individually or in the case may beaggregate, as of such earlier date);
(b) no event or circumstance shall have occurred since the date of this Agreement which, independently or together with any other event or circumstance that has so occurred or is reasonably likely to occur, has or is reasonably likely to have imminently a Material Adverse Effect;
(c) all Governmental Requirements necessary in connection with the Contemplated Transactions have been fulfilled in a manner consistent with Section 5.07, except as not had and would not reasonably be expected to have a Material Adverse Effect;
(b) the Company shall have performed and complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by it on or prior to the Closing Date;
(c) the Purchaser shall have received a certificate, dated the Closing Date, duly executed by an executive officer of the Company on behalf of the Company, certifying that the conditions specified in Section 2.04(a) and (b) have been satisfied; and
(d) the Seller Company shall have obtained (i) executed and delivered the consents required to transfer to the Purchaser or one or more of its Designees its rights, title and interests in the Contracts identified in Section 7.03(d) of the Disclosure Letter to the extent such consents are required by law with respect to the Contemplated Transactions, after giving effect to the Sale Order;
(e) subject to Section 1.04(i), any and all Cure Amounts in respect of Assumed Contracts shall have been paid by the Seller and all such contracts shall have been assumed by the Seller for assignment to the Purchaser; provided, however, that this condition shall not be satisfied if the exclusion of the Assumed Contracts by the Purchaser pursuant to Section 1.04(i), either individually or in the aggregate, would have a Material Adverse Effect on the Business;
(f) the Parmalat Name Registration Rights License shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered to the Purchaser;
(g) the DASI Technology Agreement shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered to the Purchaser;
(h) shared services agreements among the Purchaser and the Seller as provided by Section 1.06(b) reasonably acceptable to the Purchaser and (ii) entered into an amendment to the Seller shall be in full force Amended and effect; and
(i) Restated Registration Rights Agreement dated as of January 31, 2013, by and among the Owner's Policy of Title Insurance shall have been issued to Purchaser or its Designee pursuant to and in accordance with the title commitment referred to in Section 5.19. It is understood and agreed thatCompany, if the Purchaser waives the requirements of paragraphs (f) or (g) of this sectionPAR Investment Partners, L.P. and the Closing occursother parties thereto (as amended), then Purchaser shall not thereby attain any right (if any) on the terms and conditions set forth in or under the Parmalat Name Rights License or the DASI Technology Agreement that it does not already have and will not attain any right (if any) in or with respect to the intellectual property referred to therein that it does not already have and that neither Seller nor any of its Affiliates shall have any liability to Purchaser as a result of the failure of achievement of such requirements at the time of Closing or any subsequent failure to achieve such requirementsStage 2 Letter Agreement.
Appears in 1 contract
Samples: Investment Agreement (Global Eagle Entertainment Inc.)
Conditions Precedent to Obligation of the Purchaser. The obligation of the Purchaser to effect consummate the Contemplated Transactions shall be Closing is subject to the satisfaction at fulfillment, on or prior to the Closing Date Date, of the conditio ns set forth in Section 7.01 and each of the following additional conditions precedent (compliance with which any or the occurrence all of which may be waived by the Purchaser in whole or in part in a writing executed to the extent permitted by the Purchaserapplicable Law):
(a) (i) the Seller shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Closing Date and (ii) the representations and warranties of the Seller contained set forth in this AgreementSections 4.1(a) (Organization), without giving effect to any qualifications therein relating to Seller's Knowledge 4.2 (AAuthorization), 4.3 (Capitalization), 4.8(ii) that are not qualified as to materiality or (No Material Adverse Effect), if not true and correct in all material respects as of the Closing Date5.1 (Seller Organization), as if made as of such time5.2 (Seller Authorization), shall not have a Material Adverse Effect5.3 (Ownership), and 5.6 (BFinancial Advisors) that are qualified as to materiality or Material Adverse Effect shall be true and correct when made and, except for Section 4.8(ii), at and as of the Closing Date, as if though made at and as of such time (except in each case to the extent other than any such representations and warranties shall be expressly made as of a certain that relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date) and (ii) all other representations and warranties of the Seller set forth in all material respects or this Agreement shall be true and correctcorrect (disregarding for purposes of this clause (ii) any qualifications or exceptions as to “materiality”, including the term “Material Adverse Effect”) when made and, at and as of the Closing as though made at and as of such time (other than any such representations and warranties that relate to an earlier date, in which case may be, such representations and warranties shall be true and correct as of such earlier date);
(b) no event or circumstance shall have occurred since the date of this Agreement which, independently or together with any other event or circumstance that has so occurred or is reasonably likely to occur, has or is reasonably likely to have imminently a Material Adverse Effect;
(c) all Governmental Requirements necessary in connection with the Contemplated Transactions have been fulfilled in a manner consistent with Section 5.07, except as would not have a Material Adverse Effect;
(d) the Seller shall have obtained the consents required to transfer to the Purchaser or one or more of its Designees its rights, title and interests in the Contracts identified in Section 7.03(d) of the Disclosure Letter to the extent such consents are required by law with respect to the Contemplated Transactions, after giving effect to the Sale Order;
(e) subject to Section 1.04(i), any and all Cure Amounts in respect of Assumed Contracts shall have been paid by the Seller and all such contracts shall have been assumed by the Seller for assignment to the Purchaser; provided, however, that this condition shall not be satisfied if the exclusion failure of the Assumed Contracts by the Purchaser pursuant representations and warranties referred to Section 1.04(i)in this clause (ii) to be so true and correct, either individually or in the aggregate, has not had, and would have not be reasonably expected to have, a Material Adverse Effect or a material adverse effect on the BusinessSeller’s ability to consummate the transactions contemplated hereby, and the Purchaser shall have received a certificate signed by an authorized officer of the Seller, dated the Closing Date, to the foregoing effect;
(b) Seller shall have performed and complied in all material respects with all material obligations and agreements required by this Agreement to be performed or complied with by it on or prior to the Closing Date (it being acknowledged that the failure to obtain any consents or approvals sought under this Agreement shall not be considered to be a failure to perform or comply with any of the Seller’s obligations or agreements so long as the Seller has complied in all material respects with Section 7.4, Section 7.5, Section 7.6, Section 7.12, Section 7.13, Section 7.14 and Section 7.19), and the Purchaser shall have received a certificate signed by an authorized officer of the Seller, dated the Closing Date, to the foregoing effect;
(c) there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(d) (i) the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act shall have expired or early termination shall have been granted and any applicable non-United States antitrust and merger control requirements shall have been satisfied and (ii) all approvals required from FINRA and other self-regulatory organizations with respect to the transactions contemplated by this Agreement will have been obtained;
(e) the Seller shall have delivered, or caused to be delivered, to the Purchaser, duly executed Ancillary Agreements to which the Seller or any Affiliate thereof is a party, including the Transition Services Agreement, which will contain arrangements reasonably satisfactory to Purchaser for the provision of proprietary transition services and the replacement of such services for at least 24 months following the Closing;
(f) the Parmalat Name Rights License Departure Percentage shall have become fully effective in all respects and not be in full force and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered to the Purchaserless than 80%;
(g) the DASI Technology Agreement Preliminary Closing NB Revenue Run-Rate Percentage shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations equal to effectuate the same shall have been obtained and evidence thereof delivered to the Purchaseror greater than 70%;
(h) shared services agreements among the average closing price of the S&P 500 Index for the 10 consecutive full trading days immediately preceding the Closing Date shall be at least 75% of 1202.79;
(i) the Bankruptcy Court shall have entered the Bid Procedures Order in form and substance reasonably satisfactory to Purchaser and substantially in the Seller form attached hereto as provided by Section 1.06(bExhibit A;
(j) the Bankruptcy Court shall have entered the Sale Order in form and substance reasonably acceptable satisfactory to the Purchaser and substantially in the Seller form attached hereto as Exhibit B, and such Order shall be not have been stayed, amended, modified, reversed, vacated or revoked and is in full force and effect;
(k) Parent shall not have elected to cause the Estimated Aggregate Additional Adjustment to equal $850,000,000;
(l) Parent shall not have elected to cause the Estimated EBITDA Adjustment to equal $190,000,000; and
(m) the sum of (i) the Owner's Policy of Title Insurance shall have been issued to Purchaser or its Designee pursuant to and Estimated Closing NB Adjustment plus (ii) the Estimated EBITDA Adjustment plus (iii) the Estimated Other Liabilities Adjustment plus (iv) the Estimated Closing S&P Adjustment (in accordance with the title commitment referred to in Section 5.19. It is understood and agreed thateach case, if the Purchaser waives the requirements of paragraphs (fcalculated as though Parent has made no elections that would otherwise limit such amounts) or (g) of this section, and the Closing occurs, then Purchaser shall not thereby attain any right (if any) in or under the Parmalat Name Rights License or the DASI Technology Agreement that it does not already have and will not attain any right (if any) in or with respect to the intellectual property referred to therein that it does not already have and that neither Seller nor any of its Affiliates shall have any liability to Purchaser as a result of the failure of achievement of such requirements at the time of Closing or any subsequent failure to achieve such requirementsbe greater than $1,250,000,000.
Appears in 1 contract
Conditions Precedent to Obligation of the Purchaser. The obligation of the Purchaser to effect consummate the Contemplated Transactions shall be transactions contemplated by this Agreement is subject to the satisfaction at fulfillment, on or prior to the Closing Date Date, of the conditio ns set forth in Section 7.01 and each of the following additional conditions precedent (compliance with which any or the occurrence all of which may be waived by the Purchaser in whole or in part in to the extent permitted by applicable Law if Purchaser executes a writing executed by written statement to that effect with respect to the Purchaser):
(a) (i) the Seller condition so waived or shall have performed in all material respects its obligations under this Agreement required be deemed to be performed by it at or prior to the Closing Date and (ii) so waived upon a Closing): the representations and warranties of the Seller contained set forth in this Agreement, without giving effect to any qualifications therein relating to Seller's Knowledge (A) that are not qualified as to materiality or Material Adverse Effect, if not true and correct in all material respects as of the Closing Date, as if made as of such time, shall not have a Material Adverse Effect, and (B) that are qualified as to materiality or Material Adverse Effect Agreement shall be true and correct when made at and as of the Closing Date, as if made as of such time Date (except in each case to the extent other than such representations and warranties shall be expressly made as of a certain that relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects or true and correct, as the case may be, as of such earlier date);
(b) no event or circumstance , except to the extent the failure of such representations and warranties to be so true and correct has not had a Material Adverse Effect, and the Purchaser shall have received a certificate signed by an authorized officer of the Seller, dated the Closing Date, to the foregoing effect; the Company, the Seller and the Subsidiary Seller 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 them on or prior to the Closing Date, and the Purchaser shall have received a certificate signed by an authorized officer of the Seller, dated the Closing Date, to the foregoing effect; the Seller, the Subsidiary Seller and the Company shall have obtained all consents and waivers set forth on Schedule 8.1(c) hereof that are required to be obtained by, and, in form reasonably satisfactory to, the Purchaser, with respect to the transactions contemplated by this Agreement; there shall not have been or occurred any Material Adverse Effect since the date of this Agreement; the waiting period applicable to the transactions contemplated by this Agreement which, independently under the HSR Act shall have expired or together with any other event or circumstance that has so occurred or is reasonably likely to occur, has or is reasonably likely to have imminently a Material Adverse Effect;
(c) all Governmental Requirements necessary in connection with the Contemplated Transactions early termination shall have been fulfilled granted; no action, suit, or proceeding shall be extant or pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely the right of the Purchaser to own the Shares and to control the Company and the Subsidiaries, or (D) affect adversely the right of the Company or any of the Subsidiaries to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in a manner consistent with Section 5.07effect); Purchaser shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit 8.1(g) attached hereto, except addressed to Purchaser and on which Purchaser's lenders shall be entitled to rely and dated as would not have a Material Adverse Effect;
(d) of the Closing Date; the Seller shall have obtained the consents required to transfer to the Purchaser or one or more of its Designees its rights, title and interests in the Contracts identified in Section 7.03(d) delivered a certificate of the Disclosure Letter Secretary or Assistant Secretary of the Seller, dated as of the Closing Date, certifying as to (i) the extent such consents are required by law with respect to incumbency of officers of the Contemplated TransactionsSeller, after giving the Company and the Subsidiary Seller executing documents executed and delivered in connection herewith, (ii) the copies of the Company's and each Subsidiary's formation documents and operating documents, each as in effect to from the Sale Order;
date of this Agreement until the Closing Date, (eiii) subject to Section 1.04(i)any resolutions of the authorizing body of the Seller, any the Company and all Cure Amounts in respect each Subsidiary authorizing this Agreement and the transactions contemplated thereby, and (iv) a certificate of Assumed Contracts shall have been paid good standing of the Seller, the Company and each Subsidiary issued on or before the Closing Date by the Seller and all jurisdiction of such contracts shall have been assumed by Person's organization; the Seller for assignment to the Purchaser; provided, however, that this condition shall not be satisfied if the exclusion of the Assumed Contracts by the Purchaser pursuant to Section 1.04(i), either individually or in the aggregate, would have a Material Adverse Effect on the Business;
(f) the Parmalat Name Rights License shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered to the Purchaser;
(g) the DASI Technology Agreement shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered to the Purchaser;
(h) shared services agreements among the Purchaser and the Seller as provided by Section 1.06(b) reasonably acceptable to the Purchaser and the Seller General Release shall be in full force and effect; and
(i) the Owner's Policy of Title Insurance Company and the Subsidiaries shall have been issued delivered notice of the assignment (in a form approved by Purchaser) of each of the Real Property Leases to the landlord thereunder if and as required by the Real Property Leases as set forth in Schedule 4.5(a), and shall have obtained and delivered to Purchaser or its Designee pursuant to a written consent for the assignment of each of the Real Property Leases if and as required by the Real Property Leases as set forth in accordance with Schedule 4.5(a) (the title commitment referred to in Section 5.19. It is understood and agreed that, if the Purchaser waives the requirements of paragraphs (f) or (g) of this section, and the Closing occurs, then Purchaser shall not thereby attain any right (if any) in or under the Parmalat Name Rights License or the DASI Technology Agreement that it does not already have and will not attain any right (if any) in or "Lease Consents"); all Liens with respect to the intellectual matters described in Schedule 4.4 and any other Liens (other than Permitted Exceptions and Liens which secure indebtedness in the aggregate not to exceed $250,000) shall be released; and there shall not be pending any foreclosure or bankruptcy proceedings with respect to any property referred to therein that it does not already have located in New York City at which the Company or its Subsidiaries leases and that neither Seller nor any of its Affiliates shall have any liability to Purchaser as operates a result of the failure of achievement of such requirements at the time of Closing or any subsequent failure to achieve such requirementsspa.
Appears in 1 contract
Conditions Precedent to Obligation of the Purchaser. The obligation of the Purchaser to effect the Contemplated Transactions shall be subject to the satisfaction at or prior to the Closing Date of the conditio ns set forth in Section 7.01 and of the following additional conditions precedent (compliance with which or the occurrence of which may be waived in the Purchaser's sole discretion, in whole or in part in part, by a writing executed by the PurchaserPurchaser and delivered to the Sellers only, without any requirement that notice of such waiver be given to the Bankruptcy Court or to any other Person):
(a) (i) the Seller The Sellers shall have performed in all material respects its their respective obligations under this Agreement required to be performed by it them at or prior to the Closing Date Date, except where non-performance does not have a Sellers Material Adverse Effect; and (ii) the representations and warranties of the Seller Sellers contained in this Agreement, without giving effect to any qualifications therein relating to Seller's Knowledge (A) that are not qualified as to materiality or Material Adverse Effect, if not true and correct in all material respects as of the Closing Date, as if made as of such time, shall not have a Material Adverse Effect, and (B) that are qualified as to materiality or Material Adverse Effect shall be true and correct when made and as of the Closing Date, as if made as of such time (except in each case to the extent such representations and warranties shall be expressly made as of a certain date, in which case such representations and warranties Agreement shall be true and correct in all material respects or true except where the falsity of the representations and correct, as the case may be, as of such earlier date);
(b) no event or circumstance shall warranties does not have occurred since the date of this Agreement which, independently or together with any other event or circumstance that has so occurred or is reasonably likely to occur, has or is reasonably likely to have imminently a Sellers Material Adverse Effect;
(b) The Sellers shall have obtained all of the Sellers Required Approvals;
(c) The Purchaser shall have received or otherwise hold all Governmental Requirements government approvals, clearances, consents and authorizations necessary to permit the Purchaser (or, if applicable and at the discretion of the Purchaser, the Purchaser shall have received adequate assurances reasonably satisfactory to it that all such approvals, clearances, consents and authorizations will be given) to operate the Business; and no Permits shall be revoked or, to the extent applicable, shall fail to be transferred to the Purchaser without additional expense and subject to no additional restrictions or burdens on the permittee other than those which, in connection with the Contemplated Transactions have been fulfilled in a manner consistent with Section 5.07aggregate, except as would not have a Material Adverse Effectare immaterial;
(d) the Seller No Action shall have obtained the consents required to transfer to been commenced by or before any Governmental Authority against the Purchaser or one the Sellers, seeking to restrain or more of its Designees its rightsmaterially and adversely alter the Contemplated Transactions that, title and interests in the Contracts identified in Section 7.03(d) reasonable good faith determination of the Disclosure Letter Purchaser, is likely to the extent such consents are required by law with respect render it impracticable or unlawful to consummate the Contemplated Transactions, after giving effect to the Sale Order;
(e) subject to Section 1.04(i), any and all Cure Amounts in respect of Assumed Contracts The Sellers shall have been paid by the Seller and all such contracts shall have been assumed by the Seller for assignment delivered to the Purchaser; provided, however, that this condition shall not be satisfied if Purchaser the exclusion of the Assumed Contracts by the Purchaser pursuant to documents set forth in Section 1.04(i), either individually or in the aggregate, would have a Material Adverse Effect on the Business3.4;
(f) the Parmalat Name Rights License shall have become fully effective The conditions set forth in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same this Section 7.3 shall have been obtained and evidence thereof delivered to the Purchaser;satisfied on or before November 13, 2000; and
(g) The independent public accountants of the DASI Technology Agreement Sellers shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered to the Purchaser;
(h) shared services agreements among the Purchaser and the Seller as provided by Section 1.06(b) reasonably acceptable to the Purchaser and the Seller shall be in full force and effect; and
(i) the Owner's Policy of Title Insurance shall have been issued to Purchaser or its Designee pursuant to and in accordance with the title commitment referred to in Section 5.19. It is understood and agreed that, if the Purchaser waives the requirements of paragraphs (f) or (g) of this section, and the Closing occurs, then Purchaser shall not thereby attain any right (if any) in or under the Parmalat Name Rights License or the DASI Technology Agreement that it does not already have and will not attain any right (if any) in or with respect to the intellectual property referred to therein that it does not already have and that neither Seller nor any of its Affiliates shall have any liability to Purchaser as a result Sellers audited financial statements of the failure of achievement of such requirements Sellers for the year ended December 31, 1999 at the time expense of Closing or any subsequent failure to achieve such requirementsPurchaser.
Appears in 1 contract
Samples: Asset Purchase Agreement (McSi Inc)
Conditions Precedent to Obligation of the Purchaser. The obligation of the Purchaser to effect the Contemplated Transactions shall be subject to the satisfaction at or prior to the Closing Date of the conditio ns set forth in Section 7.01 and of the following additional conditions precedent (compliance with which or the occurrence of which may be waived in the Purchaser's sole discretion, in whole or in part in part, by a writing executed by the PurchaserPurchaser and delivered to the Seller only, without any requirement that notice of such waiver be given to the Bankruptcy Court or to any other Person):
(a) (i) the The Seller shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Closing Date and (ii) Date; the representations and warranties of the Seller contained in this Agreement, without giving effect to any qualifications therein relating to Seller's Knowledge (A) that are not qualified as to materiality or Material Adverse Effect, if not true and correct in all material respects as of the Closing Date, as if made as of such time, shall not have a Material Adverse Effect, and (B) Agreement that are qualified as to materiality or a Seller Material Adverse Effect shall be true and correct when made in all respects and as of the Closing Date, as if made as of such time (except in each case to the extent such representations and warranties shall be expressly made as of a certain date, in which case such representations and warranties that are not so qualified shall be true and correct in all material respects or true respects, in each case as of the date of this Agreement and, except with respect to representations and correctwarranties which speak as of an earlier date, at and as of the case may be, Closing Date as if made at and as of such earlier date); and the Purchaser shall have received a certificate of the chairman of the board, chief executive officer or chief operating officer of the Seller as to the satisfaction of this condition to the best of his knowledge;
(b) no event or circumstance The Seller shall have occurred since obtained all of the date of this Agreement which, independently or together with any other event or circumstance that has so occurred or is reasonably likely to occur, has or is reasonably likely to have imminently a Material Adverse EffectSeller Required Approvals;
(c) The Purchaser shall have received or otherwise hold all Governmental Requirements government approvals, clearances, consents and authorizations necessary to permit the Purchaser (or, if applicable, the Purchaser shall have received adequate assurances reasonably satisfactory to it that all such approvals, clearances, consents and authorizations will be given) to operate the Business; and no Permits shall be revoked or, to the extent applicable, shall fail to be transferred to the Purchaser without additional expense and subject to no additional restrictions or burdens on the permittee other than those which, in connection with the Contemplated Transactions have been fulfilled in a manner consistent with Section 5.07aggregate, except as would not have a Material Adverse Effectare immaterial;
(d) the Seller shall have obtained the consents required to transfer to the Purchaser or one or more of its Designees its rights, title The 363 Order and interests in the Contracts identified in Section 7.03(d) of the Disclosure Letter to the extent such consents are required by law with respect to the Contemplated Transactions, after giving effect to the Sale Order;
(e) subject to Section 1.04(i), any and all Cure Amounts in respect of Assumed Contracts 365 Order shall have been paid entered by the Seller Bankruptcy Court in substantially the form contemplated by this Agreement and all such contracts shall not have been assumed by the Seller for assignment to the Purchaser; providedreversed, howeverstayed, that this condition shall not be satisfied if the exclusion of the Assumed Contracts by the Purchaser pursuant to Section 1.04(i), either individually modified or amended in the aggregate, would have a Material Adverse Effect on the Business;
(f) the Parmalat Name Rights License shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered any manner adverse to the Purchaser;
(ge) the DASI Technology Agreement shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same No Action shall have been obtained commenced by or before any Governmental Authority against the Purchaser or the Seller, seeking to restrain or materially and evidence thereof adversely alter the Contemplated Transactions that, in the reasonable good faith determination of the Purchaser, is likely to render it impossible or unlawful to consummate the Contemplated Transactions;
(f) The Seller shall have delivered to the PurchaserPurchaser the documents set forth in Section 3.3;
(g) The Seller shall have filed a motion with the Bankruptcy and take all other necessary and appropriate actions to reject the executory contracts and unexpired leases set forth in SCHEDULE 8.3(g); and
(h) shared services agreements among the Purchaser and the The Seller as provided by Section 1.06(b) reasonably acceptable shall have delivered to the Purchaser and the Seller shall be in full force and effectGladwin License; and
(i) Concurrently with the Owner's Policy payment of Title Insurance shall have been issued to Purchaser or its Designee pursuant to and the Cash Payment in accordance with Section 3.2(a), the title commitment referred Seller shall deliver to in Section 5.19. It is understood and agreed that, if the Purchaser waives the requirements Letter of paragraphs (f) or (g) of this section, and the Closing occurs, then Purchaser shall not thereby attain any right (if any) in or under the Parmalat Name Rights License or the DASI Technology Agreement that it does not already have and will not attain any right (if any) in or with respect to the intellectual property referred to therein that it does not already have and that neither Seller nor any of its Affiliates shall have any liability to Purchaser as a result of the failure of achievement of such requirements at the time of Closing or any subsequent failure to achieve such requirementsCredit.
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Conditions Precedent to Obligation of the Purchaser. The obligation of the Purchaser to effect the Contemplated Transactions transactions contemplated by this Agreement shall be subject to the satisfaction or waiver at or prior to the Closing Date of the conditio ns set forth in Section 7.01 and of the following additional conditions precedent (compliance with which or the occurrence of which may be waived in whole or in part in a writing executed by the Purchaser):conditions:
(a) (i) the The Seller shall have performed in all material respects its obligations under this Agreement required to be performed by it the Seller at or prior to the Closing Date Date, and (ii) the representations and warranties of the Seller contained in this Agreement, without giving effect to any qualifications therein relating to Seller's Knowledge (A) that are not qualified as to materiality or Material Adverse Effect, if not Agreement shall be true and correct in all material respects as of the Closing Date, as if made as of such time, shall not have a Material Adverse Effect, date hereof and (B) that are qualified as to materiality or Material Adverse Effect shall be true and correct when made on and as of the Closing Date, as if made as of such time (except in each case to the extent such representations and warranties shall be expressly made as of a certain date, in which case such representations and warranties shall be true and correct in all material respects or true and correct, as the case may be, as of such earlier date);.
(b) Except for the matters subject to the investigation of the Seller by the SEC previously disclosed to Purchaser and the litigation and proceedings disclosed in Schedule 3.12, there shall exist no event material violations of federal, state, local or circumstance foreign laws, statutes, regulations or codes of any kind or nature whatsoever that would materially adversely affect the value of the Acquired Assets after the Closing and the value of the Acquired Assets shall have occurred since the date of this Agreement which, independently or together with any other event or circumstance that has so occurred or is reasonably likely to occur, has or is reasonably likely to have imminently a Material Adverse Effect;
(c) all Governmental Requirements necessary in connection with the Contemplated Transactions have been fulfilled in a manner consistent with Section 5.07, except as would not have a Material Adverse Effect;
(d) changed materially from the Seller shall have obtained the consents required to transfer to the Purchaser or one or more of its Designees its rightsvalue that existed on March 31, title and interests in the Contracts identified in Section 7.03(d) of the Disclosure Letter to the extent such consents are required by law with respect to the Contemplated Transactions, after giving effect to the Sale Order;
(e) subject to Section 1.04(i), any and all Cure Amounts in respect of Assumed Contracts shall have been paid by the Seller and all such contracts shall have been assumed by the Seller for assignment to the Purchaser2000; provided, however, that this condition shall not be satisfied if the exclusion none of the Assumed Contracts following shall constitute a material adverse change for purposes of this Section 6.03(b): (i) normal intra-quarter fluctuations in assets of the Seller, (ii) the departure of any employee (x) whose contract obligations are not assumed by the Purchaser pursuant or (y) who does not receive an offer of employment on substantially the same terms as his present employment (including, without limitation, compensation, location and responsibilities) from Purchaser prior to Section 1.04(i)Closing, either individually (iii) the impact of the departure of any employee or employees referred to in clause (ii) above, or (iv) reasonable levels of deterioration in Seller's business, including but not limited to erosion of its customer base, loss or deferral of expected sales and loss of employees, resulting from the aggregate, would have a Material Adverse Effect on announcement or implementation of the Business;transactions contemplated hereby.
(fc) Upon consummation of the Parmalat Name Rights License transactions contemplated hereby, the Purchaser will have acquired good title in and to, or a valid leasehold interest in, as applicable, each of the Acquired Assets, free and clear of all Liens other than Liens related to the Assumed Liabilities and Permitted Exceptions.
(d) The Section 363/365 Order shall have been entered by the Bankruptcy Court and such order shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered to the Purchaser;
(g) the DASI Technology Agreement shall have become fully effective in all respects and be in full force and effect and all necessary approvals and authorizations to effectuate the same shall have been obtained and evidence thereof delivered to the Purchaser;
(h) shared services agreements among the Purchaser and the Seller as provided by Section 1.06(b) reasonably acceptable to the Purchaser and the Seller shall be in full force and effect; and
(i) the Owner's Policy of Title Insurance shall have been issued to Purchaser or its Designee pursuant to and in accordance with the title commitment referred to in Section 5.19. It is understood and agreed that, if the Purchaser waives the requirements of paragraphs (f) or (g) of this section, and the Closing occurs, then Purchaser shall not thereby attain any right (if any) in or under the Parmalat Name Rights License or the DASI Technology Agreement that it does not already have and will not attain any right (if any) in or with respect to the intellectual property referred to therein that it does not already have and that neither Seller nor any of its Affiliates shall have any liability to Purchaser as a result of the failure of achievement of such requirements at the time of Closing or any subsequent failure to achieve such requirementsfinal order.
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Samples: Asset Purchase Agreement (System Software Associates Inc)
