Conditions Precedent to Obligations of Parent and Purchaser. The obligation of Parent and Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Purchaser in whole or in part to the extent permitted by applicable Law): (a) the representations and warranties of Sellers contained in this Agreement that are not qualified by materiality or Seller Material Adverse Effect shall be true and correct in all material respects on and as of the Closing, except to the extent expressly made as of an earlier date, in which case as of such earlier date, and the representations and warranties of Sellers contained in this Agreement that are qualified by materiality or Seller Material Adverse Effect shall be true and correct in all respects on and as of the Closing, except to the extent expressly made as of an earlier date, in which case as of such earlier date, and Purchaser shall have received a certificate signed by an authorized officer of Sellers, dated the Closing Date, to the foregoing effect; (b) Sellers shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by it prior to the Closing Date, and Purchaser shall have received a certificate signed by an authorized officer of Sellers, dated the Closing Date, to the forgoing effect; (c) Phase I Environmental Site Assessments of the real property included within the Purchased Assets, performed in substantial conformance with ASTM E: 1527-00, shall have been completed, the results of which shall not have disclosed any Environmental Liabilities not disclosed hereunder or in the schedules hereto, except for any Environmental Liabilities that would not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect; (d) Sellers shall have delivered, or caused to be delivered, to Purchaser all of the items set forth in Section 4.2; (e) the Closing WC shall have been finally determined and shall not be less than the Closing WC Threshold Amount; and (f) between June 30, 2004 and the Closing Date, except as disclosed on the Schedules hereto, there shall not have occurred any Seller Material Adverse Effect.
Appears in 1 contract
Conditions Precedent to Obligations of Parent and Purchaser. The obligation of Parent and Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to as of the Closing Date, of each of the following conditions (any or all of which may be waived by Parent or Purchaser in their sole discretion in whole or in part to the extent permitted by applicable Law, such waiver to be in writing signed by an executive officer of Parent or Purchaser referencing this section and the specific condition to be waived):
(a) the All representations and warranties of the Sellers contained in this Agreement that are not or in any exhibit, schedule or document delivered pursuant hereto shall be true, complete and correct in all respects (with respect to representations and warranties qualified or limited by materiality or Seller Material Adverse Effect shall be true and correct Effect) or in all material respects on (with respect to representations and warranties not so qualified or limited), in each case when made (unless cured as provided in Section 4.4(e)) and as of the ClosingClosing Date as if made on the Closing Date, except to the extent other than any such representations or warranties that expressly made speak only as of an earlier date, which shall be true, complete and correct in which case as of such earlier date, and the all respects (with respect to representations and warranties of Sellers contained in this Agreement that are qualified or limited by materiality or Seller Material Adverse Effect shall be true and correct Effect) or in all material respects on (with respect to representations and as of the Closingwarranties not so qualified or limited), except to the extent expressly made as of an earlier date, in which case as of such earlier date.
(b) All of the terms, covenants and conditions to be complied with and performed by the Sellers on or prior to the Closing Date (other than the covenants contained in Section 8.2 (a)(i), Sections 8.2(b)(iii) through (xi), Section 8.2(b)(xii) (to the extent it relates to commitments to do items covered in Sections 8.2(b)(iii) through (xi)) , Section 8,2(c), and Section 8.9(d), as to which Section 10.1(l) applies) shall have been complied with or performed in all material respects and all breaches of any such covenants in the aggregate do not result in a Seller Material Adverse Effect.
(c) Purchaser shall have received a certificate signed by an authorized officer of Sellersor certificates, dated as of the Closing Date, executed on behalf of the Company, by an authorized executive officer thereof, in the form of the attached Exhibit O.
(d) Any Governmental Authorities whose consent is required for consummation of the transactions contemplated hereby (other than the HSR Act as more particularly described in Section 10.3(c)) shall have issued all consents required for the transactions contemplated hereby, without any unreasonable condition or limitation.
(e) There shall not be in effect any Law or Order of any Governmental Body of competent jurisdiction restraining, enjoining or otherwise preventing consummation of the transactions contemplated by this Agreement.
(f) [Intentionally Omitted]
(g) Purchaser, in its reasonable discretion, shall be satisfied with the terms and conditions of the Ancillary Documents (with Purchaser deemed to be satisfied with Ancillary Documents with respect to which forms have been attached hereto to the foregoing effectextent the Ancillary Documents delivered at Closing are in the form of such attachments).
(h) The title company selected by Purchaser shall be committed to issue, at normal premium rates an ALTA Owner's Title Insurance Policy for each of the Material Owned Real Properties and an ALTA Leasehold Title Insurance Policy for each of the Leased Real Properties for which the Real Property Lease or a memorandum thereof has been placed of record (or may be placed of record in accordance with the terms of the Real Property Lease), insuring Purchaser's fee or leasehold interest, as applicable, in an amount equal to the fair market value of each of the Material Owned Real Properties and such amount as is customary for leasehold title policies with respect to the Leased Real Properties, subject only to the Permitted Exceptions, together with extended coverage over the so-called "general" exceptions, (to the extent available in the respective States where the Material Owned Real Properties and Leased Real Properties are located) and such endorsements as Purchaser may reasonably request.
(i) The amount of Current Trade Payables to be assumed by Purchaser under Section 2.3(a)(viii) shall not exceed $47,500,000 in the aggregate;
(b) Sellers shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by it prior to the Closing Date, and Purchaser shall have received a certificate signed by an authorized officer of Sellers, dated the Closing Date, to the forgoing effect;
(c) Phase I Environmental Site Assessments of the real property included within the Purchased Assets, performed in substantial conformance with ASTM E: 1527-00, shall have been completed, the results of which shall not have disclosed any Environmental Liabilities not disclosed hereunder or in the schedules hereto, except for any Environmental Liabilities that would not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect;
(dj) Sellers shall have delivered, or caused to be delivered, to Purchaser all of the items set forth in Section 4.2;
(ek) As of the Closing WC Date, neither Sellers nor Purchaser and its Affiliates shall have received any notice from a Governmental Body, no Order shall have been finally determined issued stating and no Governmental Body shall have taken any position in any action before the Bankruptcy Court or any other Governmental Body, asserting, that Purchaser is required under Law or otherwise to purchase any Excluded Assets or to assume any Excluded Liabilities, which notice, Order or position has not been withdrawn with prejudice or dismissed with prejudice by a Final Order of the Bankruptcy Court and/or a court of competent jurisdiction;
(l) Sellers shall have fully complied with and performed their obligations set forth in Sections 8.2(a)(i), Sections 8.2(b)(iii) through (xi), Section 8.2(b)(xii) (to the extent it relates to commitments to do items covered in Sections 8.2(b)(iii) through (xi)), Section 8.2(c) and Section 8.9(d) hereof;
(m) The amount of all obligations (other than those in respect of letters of credit issued in respect of trade payables and workers compensation obligations) outstanding under the DIP Credit Agreement shall not exceed $120,000,000, and the amount of all obligations outstanding in respect of letters of credit issued in respect of trade payables and workers compensation obligations shall not exceed $35,000,000;
(n) Assuming the accuracy of the representation set forth in Section 6.9 hereof, the Bankruptcy Court shall have determined, in the Sale Order and, if applicable, the Confirmation Order, that Aretex (i) as a First Lien Lender, shall have an allowed claim in the face amount of $193,503,839.26, plus interest, (reduced by any payments made after the date hereof) and be entitled to not less than 39.989% of any securities or other property or assets delivered and allocated among the Closing WC Threshold AmountFirst Lien Lenders; and (ii) as a Second Lien Lender, shall have an allowed claim in the face amount of $84,500,000, plus interest, and be entitled to not less than 51.212% of any securities or other property or assets delivered and allocated among the Second Lien Lenders; and
(fo) between June 30, 2004 and The Distributable Value shall have been determined by the Closing Date, except as disclosed on the Schedules hereto, there shall not have occurred any Seller Material Adverse EffectBankruptcy Court.
Appears in 1 contract
Conditions Precedent to Obligations of Parent and Purchaser. The obligation of Parent and Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Purchaser in whole or in part to the extent permitted by applicable Law):
(a) the representations and warranties of Sellers contained in this Agreement that are not qualified by materiality or Seller Material Adverse Effect shall be true and correct in all material respects on and as of the Closing, except to the extent expressly made as of an earlier date, in which case as of such earlier date, and the representations and warranties of Sellers contained in this Agreement that are qualified by materiality or Seller Material Adverse Effect shall be true and correct in all respects on and as of the Closing, except to the extent expressly made as of an earlier date, in which case as of such earlier date, and Purchaser shall have received a certificate signed by an authorized officer of Sellersthe Company, dated the Closing Date, to the foregoing effect;
(b) Sellers shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by it them prior to the Closing Date, and Purchaser shall have received a certificate signed by an authorized officer of Sellersthe Company, dated the Closing Date, to the forgoing effect;
(c) Phase I Environmental Site Assessments the Sale Order Condition shall be satisfied in full on and as of the real property included within the Purchased Assets, performed in substantial conformance with ASTM E: 1527-00, shall have been completed, the results of which shall not have disclosed any Environmental Liabilities not disclosed hereunder or in the schedules hereto, except for any Environmental Liabilities that would not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse EffectClosing Date;
(d) all waiting periods (and any extensions thereof) applicable to the transactions contemplated by this Agreement under the HSR Act and any other applicable Antitrust Law shall have expired or otherwise been terminated, without the imposition of or any requirement that Parent, Purchaser or any of their Affiliates agree to any Antitrust Condition;
(e) Sellers shall have delivered, or caused to be delivered, to Purchaser all of the items set forth in Section 4.2;
(e) the Closing WC shall have been finally determined and shall not be less than the Closing WC Threshold Amount; and
(f) between June 30, 2004 and the Closing Date, except as disclosed on the Schedules hereto, there There shall not be pending any Legal Proceedings of the types described in Section 5.6 that have occurred any or could reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse EffectEffect and that could reasonably be expected to adversely affect Purchaser’s ability to conduct the Business after the Closing or the ownership or use by Purchaser of the Purchased Assets in the operation of the Business after the Closing.
Appears in 1 contract
Samples: Intellectual Property Purchase Agreement (Flowers Foods Inc)
Conditions Precedent to Obligations of Parent and Purchaser. The obligation of the Parent and Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Purchaser the Parent in whole or in part to the extent permitted by applicable Law):
(a) all representations and warranties of the Seller and Owner contained herein shall be true and correct as of the date hereof;
(b) all representations and warranties of the Seller contained herein qualified as to materiality shall be true and correct, and the representations and warranties of Sellers the Seller contained in this Agreement that are herein not qualified by as to materiality or Seller Material Adverse Effect shall be true and correct in all material respects on respects, at and as of the Closing, except to Closing Date with the extent expressly made same effect as of an earlier date, in which case as of such earlier date, and the though those representations and warranties of Sellers contained in this Agreement that are qualified by materiality or Seller Material Adverse Effect shall be true and correct in all respects on had been made again at and as of the Closing, except to the extent expressly made as of an earlier date, in which case as of such earlier date, and Purchaser shall have received a certificate signed by an authorized officer of Sellers, dated the Closing Date, to the foregoing effectthat time;
(bc) Sellers the Seller shall have performed and complied in all material respects with all obligations and agreements covenants required in by this Agreement to be performed or complied with by it on or prior to the Closing Date, and Purchaser ;
(d) the Parent shall have received a certificate signed by an authorized officer of Sellers, been furnished with certificates (dated the Closing Date, date and in form and substance reasonably satisfactory to the forgoing effectParent) executed by the Seller certifying as to the fulfillment of the conditions specified in Sections 6.1(a), 6.1(b) and 6.1(c) hereof;
(ce) Phase I Environmental Site Assessments of the real property included within the Purchased Assets, performed in substantial conformance with ASTM E: 1527-00, Parent shall have been completed, obtained all consents and waivers referred to in Section 4.3 hereof with respect to the results of which transactions contemplated by this Agreement and the Parent Documents;
(f) there shall not have disclosed been or occurred any Environmental Liabilities not disclosed hereunder or in the schedules hereto, except for any Environmental Liabilities that would not reasonably be expected to have, individually or in the aggregate, event which will have a Seller Material Adverse Effect;
(dg) Sellers the Seller shall have delivered, or caused obtained all consents and waivers referred to be delivered, to Purchaser all of the items set forth in Section 4.23.5 hereof, in a form reasonably satisfactory to the Parent, with respect to the transactions contemplated by this Agreement and the Seller Documents;
(eh) the Closing WC no Legal Proceedings shall have been finally determined instituted or threatened or claim or demand made against the Seller or the Parent seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby, and there shall not be less than in effect any order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the Closing WC Threshold Amount; andconsummation of the transactions contemplated hereby;
(fi) between June 30the Seller shall have delivered a Certificate of Incumbency executed by the Company’s Secretary;
(j) the Seller shall have delivered a certificate of the Company executed by the Company’s Secretary attaching and certifying to the truth and correctness of (i) the Certificate of Incorporation, 2004 (ii) the Bylaws and (iii) the Closing Dateresolutions adopted by the Company’s Board of Directors and Shareholders in connection with the transactions contemplated by this Agreement.
(k) the Owner shall have entered into the Employment Agreement with the Purchaser, except as disclosed on substantially in the Schedules form of Exhibit A hereto;
(l) the Parent shall have received disclosure schedules required pursuant to Article 3 hereof, there which shall not have occurred any Seller Material Adverse Effectbe reasonably satisfactory to the Parent.
Appears in 1 contract
Conditions Precedent to Obligations of Parent and Purchaser. The obligation obligations of Parent and Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent and Purchaser in whole or in part to the extent permitted by applicable Law):
(a) the representations and warranties of Sellers contained Seller set forth in this Agreement that are qualified as to materiality shall be true and correct, and those not so qualified by materiality or Seller Material Adverse Effect shall be true and correct in all material respects on respects, as of the date of this Agreement and as of the Closing as though made at and as of the Closing, except to the extent such representations and warranties expressly made as of relate to an earlier date, date (in which case as of such earlier date, and the representations and warranties of Sellers contained in this Agreement that are qualified by as to materiality or Seller Material Adverse Effect shall be true and correct, and those not so qualified shall be true and correct in all respects material respects, on and as of the Closing, except to the extent expressly made as of an earlier date, in which case as of such earlier date); provided, however, in the event of any breach of a representation or warranty of Seller set forth in this Agreement, the condition set forth in this Section 9.1(a) shall be deemed satisfied unless the effect of all such breaches of representations and Purchaser shall warranties taken together could reasonably be expected to have received a certificate signed by an authorized officer of Sellers, dated the Closing Date, to the foregoing effect;Material Adverse Effect.
(b) Sellers Seller shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by it on or prior to the Closing Date;
(c) there shall not have been or occurred any event, and Purchaser change, occurrence or circumstance that, individually or in the aggregate, with any other events, changes, occurrences or circumstances, has had or which could reasonably be expected to have a Material Adverse Effect;
(d) Parent shall have received a certificate signed by an authorized officer the Chief Executive Officer of SellersSeller, in form and substance reasonably satisfactory to Parent, dated the Closing Date, to the forgoing effect that each of the conditions specified above in Sections 9.1(a)-(c) have been satisfied in all respects;
(e) With respect to each Owned Property, Parent shall have received a binding commitment from a title company of Parent's choice , the costs of which will be borne one-half by Parent and one-half by Seller, to issue a policy of title insurance on such Owned Property, which shall show title thereto to be in the condition represented by Seller herein, and shall otherwise be reasonably satisfactory to Parent, shall contain exceptions only for Permitted Exceptions (all Liens, other than Permitted Exceptions, including all Liens set forth on Company Disclosure Schedule 5.9(a)(i)(A)), being satisfied by Seller prior to Closing, and satisfactory evidence thereof provided to Parent and its title company on or before Closing), and shall show no rights of occupancy or use by third parties other than tenants under Real Property Leases, no encroachments, and no gaps in the chain of title, the cost of the cure of which shall be borne by Seller;
(f) Parent shall have received, from Parent's surveyor, an ALTA/ACSM Class A Land Title Survey with respect to each Owned Property, which does not reveal any fact or condition which has not been previously disclosed to Parent and which is otherwise reasonably satisfactory to Parent, the cost of which surveys shall be borne equally by Seller and Parent;
(g) Seller shall have delivered to Parent's title company any certifications, gap and lien indemnities and title and survey affidavits, commonly delivered in transactions involving the sale of real property in which title insurance is purchased, as may be requested by the title company in connection with the issuance of title insurance for Parent or its lenders, together with copies of formation documents, incumbency certificates, certificates of good standing and consents or resolutions as are requested by said title company;
(h) 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;
(i) (i) the waiting period under the HSR Act shall have expired and Seller shall have obtained any consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Body set forth on Company Disclosure Schedule 5.3(b) required to be obtained or made in connection with the execution and delivery of this Agreement or the performance of the transactions contemplated hereby and (ii) Seller shall have obtained all consents waivers and approvals under all Antitrust Laws and those consents, waivers and approvals referred to in Section 5.3(b) hereof in a form satisfactory to Parent;
(j) the Form S-4 shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Form S-4 shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the SEC;
(k) the Seller Unitholder Approval shall have been obtained in accordance with applicable Law and the operating agreement and By-laws of Seller;
(l) the Parent Stockholder Approval shall have been obtained in accordance with applicable Law and the certificate of incorporation and by-laws of Parent;
(m) the shares of Parent Common Stock deliverable to the Unitholders as contemplated by this Agreement shall have been approved for listing on The American Stock Exchange, subject to official notice of issuance;
(n) Seller shall have provided Parent with an affidavit of non-foreign status of Seller that complies with Section 1445 of the Code (a "FIRPTA Affidavit");
(o) Each of Mark Myers, David Pace and Larry Angotti shall have entered into an xxxxxxxxxt xxxxxxxxx on texxx xxxxxxxxxory to Parent, and such employment agreements shall be in full force and effect;
(cp) Phase I Environmental Site Assessments of the real property included within the Purchased Assets, performed in substantial conformance with ASTM E: 1527-00, Dean Carlson shall have been completed, the results of which shall not have disclosed any Environmental Liabilities not disclosed hereunder or executed and delivered a noncompetition and xxxxxxxxxxxtion agreement substantially in the schedules hereto, except for any Environmental Liabilities that would not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effectform attached hereto as Exhibit C;
(dq) Sellers Purchaser shall have obtained proceeds from the financing set forth in the Term Sheet on the terms and conditions set forth therein (or otherwise reasonably satisfactory to Parent) (the "Financing");
(r) Parent shall have received the appropriate consents required under Parent's senior credit facility and subordinated debt facility;
(s) Seller shall have delivered, or caused to be delivered, to Purchaser all a duly executed bill of sale in the items set forth in Section 4.2form of Exhibit D hereto and other documents anx xxstruments of transfer reasonably requested by Purchaser or Purchaser's title company;
(et) Seller shall have delivered, or cause to be delivered, to Purchaser duly executed general warranty deeds in forms appropriate for each state in which Owned Real Property is located (other than for the Excluded Properties) and, if requested by Purchaser, separate assignments for the Real Property Leases; provided, however, that Seller may deliver special warranty deeds in lieu of general warranty deeds for certain Owned Real Property if title insurance has been obtained for such Owned Real Property;
(u) Seller shall have obtained the issuance, reissuance or transfer of all Permits (including Environmental Permits) set forth on Company Disclosure Schedule 5.16(b) for Purchaser to conduct the operations of Business as of the Closing Date, and Seller shall have satisfied all property transfer requirements arising under Law, including Environmental Laws;
(v) Seller shall have delivered, or caused to be delivered, to Purchaser a duly executed assignment and assumption agreement in the form of Exhibit E hereto and duly executed assignments of the registrations and applications included in the Purchased Intellectual Property, in a form reasonably acceptable to Purchaser and suitable for recording in the U.S. Patent and Trademark Office, U.S. Copyright Office or equivalent foreign agency, as applicable, and general assignments of all other Purchased Intellectual Property;
(w) Seller shall have delivered, or caused to be delivered, to Purchaser, a duly executed power of attorney in the form of Exhibit F hereto;
(x) Seller shall have delivered, or caused to be delivered, to Parent an opinion of Nyemaster, Goode, West, Hansell & O'Brien PC, counsel to Seller, in substantially the form xx Xxxxbit G hereto and permitting reliance thereupon by Parent's lenders;
(y) Seller shall have delivered all instruments and documents necessary to release any and all Liens, other than Permitted Exceptions, on the Purchased Assets, including appropriate UCC financing statement amendments (termination statements);
(z) appropriate payoff letters relating to the Payoff Indebtedness Amount in form and substance reasonably satisfactory to Parent;
(aa) the Closing WC opinion of Harris Nesbitt Corp. dated as of December 16, 2005 delivered to the Xxxxx xx Xxxxctors of Parent shall not have been withdrawn or materially modified due solely to a Material Adverse Effect;
(bb) Seller shall have been finally determined delivered, or caused to be delivered, to Purchaser copies of all consents, waivers and shall not be less than the Closing WC Threshold Amountapprovals referred to in Section 9.1(i)(ii); and
(fcc) between June 30Seller shall have delivered, 2004 and the Closing Dateor caused to be delivered, except to Parent such other documents as disclosed on the Schedules hereto, there shall not have occurred any Seller Material Adverse EffectParent may reasonably request.
Appears in 1 contract
Samples: Asset Purchase Agreement (Darling International Inc)
Conditions Precedent to Obligations of Parent and Purchaser. The obligation of the Parent and Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by the Purchaser in whole or in part to the extent permitted by applicable Lawlaw):
(a) all representations and warranties of the Sellers contained herein shall be true and correct as of the date hereof;
(b) all representations and warranties of the Sellers contained herein qualified as to materiality shall be true and correct, and the representations and warranties of the Sellers contained in this Agreement that are herein not qualified by as to materiality or Seller Material Adverse Effect shall be true and correct in all material respects on respects, at and as of the Closing, except to Closing Date with the extent expressly made same effect as of an earlier date, in which case as of such earlier date, and the though those representations and warranties of Sellers contained in this Agreement that are qualified by materiality or Seller Material Adverse Effect shall be true and correct in all respects on had been made again at and as of the Closing, except to the extent expressly made as of an earlier date, in which case as of such earlier date, and Purchaser shall have received a certificate signed by an authorized officer of Sellers, dated the Closing Date, to the foregoing effectthat time;
(bc) the Sellers shall have performed and complied in all material respects with all obligations and agreements covenants required in by this Agreement to be performed or complied with by it them on or prior to the Closing Date, and Purchaser shall have received a certificate signed by an authorized officer of Sellers, dated the Closing Date, to the forgoing effect;
(c) Phase I Environmental Site Assessments of the real property included within the Purchased Assets, performed in substantial conformance with ASTM E: 1527-00, shall have been completed, the results of which shall not have disclosed any Environmental Liabilities not disclosed hereunder or in the schedules hereto, except for any Environmental Liabilities that would not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect;
(d) Sellers the Purchaser shall have delivered, or caused been furnished with certificates (dated the Closing Date and in form and substance reasonably satisfactory to be delivered, the Purchaser) executed by each Seller certifying as to Purchaser all the fulfillment of the items set forth conditions specified in Section 4.2Sections 8.1(a), 8.1(b) and 8.1(c) hereof;
(e) Certificates or other appropriate documentation representing 100% of the Membership Interests shall have been, or shall at the Closing WC shall have been finally determined be, validly delivered and shall not be less than transferred to the Closing WC Threshold Amount; andPurchaser, free and clear of any and all Liens;
(f) between June 30, 2004 and the Closing Date, except as disclosed on the Schedules hereto, there shall not have been or occurred any Seller Material Adverse Effect.Change;
(g) the Sellers shall have obtained all consents and waivers referred to in Section 4.7 hereof, in a form reasonably satisfactory to the Purchaser, with respect to the transactions contemplated by this Agreement;
(h) no Legal Proceedings shall have been instituted or threatened or claim or demand made against the Sellers, the Company, the Purchaser or the Parent seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby, and 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; and
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Mesa Energy Holdings, Inc.)
Conditions Precedent to Obligations of Parent and Purchaser. The obligation of Parent and Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Purchaser in whole or in part to the extent permitted by applicable Law):
(a) the representations and warranties of Sellers contained in this Agreement that are not qualified by materiality or Seller Material Adverse Effect shall be true and correct in all material respects on and as of the Closing, except to the extent expressly made as of an earlier date, in which case as of such earlier date, and the representations and warranties of Sellers contained in this Agreement that are qualified by materiality or Seller Material Adverse Effect shall be true and correct in all respects on and as of the Closing, except to the extent expressly made as of an earlier date, in which case as of such earlier date, and Purchaser shall have received a certificate signed by an authorized officer of Sellersthe Company, dated the Closing Date, to the foregoing effect;
(b) Sellers shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by it them prior to the Closing Date, and Purchaser shall have received a certificate signed by an authorized officer of Sellersthe Company, dated the Closing Date, to the forgoing effect;
(c) Phase I Environmental Site Assessments the Sale Order Condition shall be satisfied in full on and as of the real property included within the Purchased Assets, performed in substantial conformance with ASTM E: 1527-00, shall have been completed, the results of which shall not have disclosed any Environmental Liabilities not disclosed hereunder or in the schedules hereto, except for any Environmental Liabilities that would not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse EffectClosing Date;
(d) all waiting periods (and any extensions thereof) applicable to the transactions contemplated by this Agreement under the HSR Act and any other applicable Antitrust Law shall have expired or otherwise been terminated, without the imposition of or any requirement that Parent, Purchaser or any of their Affiliates agree to any Antitrust Condition;
(e) Sellers shall have delivered, or caused to be delivered, to Purchaser all of the items set forth in Section 4.2;
(e) the Closing WC shall have been finally determined and shall not be less than the Closing WC Threshold Amount; and
(f) between June 30, 2004 and the Closing Date, except as disclosed on the Schedules hereto, there There shall not be pending any Legal Proceedings of the types described in Section 5.8 that have occurred any or could reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse EffectEffect and that could reasonably be expected to adversely affect Purchaser’s ability to conduct the Business after the Closing or the ownership or use by Purchaser of the Purchased Assets in the operation of the Business after the Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement
Conditions Precedent to Obligations of Parent and Purchaser. The obligation of Parent and Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to as of the Closing Date, of each of the following conditions (any or all of which may be waived by Parent or Purchaser in their sole discretion in whole or in part to the extent permitted by applicable Law, such waiver to be in writing signed by an executive officer of Parent or Purchaser referencing this section and the specific condition to be waived):
(a) the All representations and warranties of the Sellers contained in this Agreement that are not or in any exhibit, schedule or document delivered pursuant hereto shall be true, complete and correct in all respects (with respect to representations and warranties qualified or limited by materiality or Seller Material Adverse Effect shall be true and correct Effect) or in all material respects on (with respect to representations and warranties not so qualified or limited), in each case when made (unless cured as provided in Section 4.4(e)) and as of the ClosingClosing Date as if made on the Closing Date, except to the extent other than any such representations or warranties that expressly made speak only as of an earlier date, which shall be true, complete and correct in which case as of such earlier date, and the all respects (with respect to representations and warranties of Sellers contained in this Agreement that are qualified or limited by materiality or Seller Material Adverse Effect shall be true and correct Effect) or in all material respects on (with respect to representations and as of the Closingwarranties not so qualified or limited), except to the extent expressly made as of an earlier date, in which case as of such earlier date.
(b) All of the terms, covenants and conditions to be complied with and performed by the Sellers on or prior to the Closing Date (other than the covenants contained in Section 8.2 (a)(i), Sections 8.2(b)(iii) through (xi), Section 8.2(b)(xii) (to the extent it relates to commitments to do items covered in Sections 8.2(b)(iii) through (xi)) , Section 8,2(c), and Section 8.9(d), as to which Section 10.1(l) applies) shall have been complied with or performed in all material respects and all breaches of any such covenants in the aggregate do not result in a Seller Material Adverse Effect.
(c) Purchaser shall have received a certificate signed by an authorized officer of Sellersor certificates, dated as of the Closing Date, executed on behalf of the Company, by an authorized executive officer thereof, in the form of the attached Exhibit O.
(d) Any Governmental Authorities whose consent is required for consummation of the transactions contemplated hereby (other than the HSR Act as more particularly described in Section 10.3(c)) shall have issued all consents required for the transactions contemplated hereby, without any unreasonable condition or limitation.
(e) There shall not be in effect any Law or Order of any Governmental Body of competent jurisdiction restraining, enjoining or otherwise preventing consummation of the transactions contemplated by this Agreement.
(f) [Intentionally Omitted]
(g) Purchaser, in its reasonable discretion, shall be satisfied with the terms and conditions of the Ancillary Documents (with Purchaser deemed to be satisfied with Ancillary Documents with respect to which forms have been attached hereto to the foregoing effectextent the Ancillary Documents delivered at Closing are in the form of such attachments).
(h) The title company selected by Purchaser shall be committed to issue, at normal premium rates an ALTA Owner’s Title Insurance Policy for each of the Material Owned Real Properties and an ALTA Leasehold Title Insurance Policy for each of the Leased Real Properties for which the Real Property Lease or a memorandum thereof has been placed of record (or may be placed of record in accordance with the terms of the Real Property Lease), insuring Purchaser’s fee or leasehold interest, as applicable, in an amount equal to the fair market value of each of the Material Owned Real Properties and such amount as is customary for leasehold title policies with respect to the Leased Real Properties, subject only to the Permitted Exceptions, together with extended coverage over the so-called “general” exceptions, (to the extent available in the respective States where the Material Owned Real Properties and Leased Real Properties are located) and such endorsements as Purchaser may reasonably request.
(i) The amount of Current Trade Payables to be assumed by Purchaser under Section 2.3(a)(viii) shall not exceed $47,500,000 in the aggregate;
(b) Sellers shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by it prior to the Closing Date, and Purchaser shall have received a certificate signed by an authorized officer of Sellers, dated the Closing Date, to the forgoing effect;
(c) Phase I Environmental Site Assessments of the real property included within the Purchased Assets, performed in substantial conformance with ASTM E: 1527-00, shall have been completed, the results of which shall not have disclosed any Environmental Liabilities not disclosed hereunder or in the schedules hereto, except for any Environmental Liabilities that would not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect;
(dj) Sellers shall have delivered, or caused to be delivered, to Purchaser all of the items set forth in Section 4.2;
(ek) As of the Closing WC Date, neither Sellers nor Purchaser and its Affiliates shall have received any notice from a Governmental Body, no Order shall have been finally determined issued stating and no Governmental Body shall have taken any position in any action before the Bankruptcy Court or any other Governmental Body, asserting, that Purchaser is required under Law or otherwise to purchase any Excluded Assets or to assume any Excluded Liabilities, which notice, Order or position has not been withdrawn with prejudice or dismissed with prejudice by a Final Order of the Bankruptcy Court and/or a court of competent jurisdiction;
(l) Sellers shall have fully complied with and performed their obligations set forth in Sections 8.2(a)(i), Sections 8.2(b)(iii) through (xi), Section 8.2(b)(xii) (to the extent it relates to commitments to do items covered in Sections 8.2(b)(iii) through (xi)), Section 8.2(c) and Section 8.9(d) hereof;
(m) The amount of all obligations (other than those in respect of letters of credit issued in respect of trade payables and workers compensation obligations) outstanding under the DIP Credit Agreement shall not exceed $120,000,000, and the amount of all obligations outstanding in respect of letters of credit issued in respect of trade payables and workers compensation obligations shall not exceed $35,000,000;
(n) Assuming the accuracy of the representation set forth in Section 6.9 hereof, the Bankruptcy Court shall have determined, in the Sale Order and, if applicable, the Confirmation Order, that Aretex (i) as a First Lien Lender, shall have an allowed claim in the face amount of $193,503,839.26, plus interest, (reduced by any payments made after the date hereof) and be entitled to not less than 39.989% of any securities or other property or assets delivered and allocated among the Closing WC Threshold AmountFirst Lien Lenders; and (ii) as a Second Lien Lender, shall have an allowed claim in the face amount of $84,500,000, plus interest, and be entitled to not less than 51.212% of any securities or other property or assets delivered and allocated among the Second Lien Lenders; and
(fo) between June 30, 2004 and The Distributable Value shall have been determined by the Closing Date, except as disclosed on the Schedules hereto, there shall not have occurred any Seller Material Adverse EffectBankruptcy Court.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Real Estate Partners L P)
