Conditions Precedent to Obligations of Purchaser at the Closing. 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 Parent and Purchaser in whole or in part to the extent permitted by applicable Law): (a) all representations and warranties of Seller and the Member Parties contained herein shall be true and correct on and as of the Closing Date, except to the extent expressly made as of an earlier date; (b) Seller and each Member Party shall have performed and complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller or such Member Party on or prior to the Closing Date; (c) there shall not have been or occurred any Seller Material Adverse Change since the Balance Sheet Date; (d) no Legal Proceedings shall have been instituted or threatened or claim or demand made against Seller, any Member Party, Parent or Purchaser seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby; (e) 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; (f) Purchaser shall have received letters in form and substance satisfactory to it from all holders of indebtedness of Seller that would be reflected on Seller’s consolidated balance sheet as of the Closing Date or disclosed in the footnotes thereto (other than any such indebtedness that is an Assumed Liability) or that is secured by any of the Assets confirming the full payment and satisfaction of such indebtedness (by way of application of a portion of the Purchase Price for such purpose or otherwise), and all related Liens shall have been released and appropriate UCC termination statements filed with respect thereto; (g) Purchaser shall have received confirmation that any Affiliate Receivables have been have been fully repaid as of the time of the Closing (by way of application of a portion of the Purchase Price for such purpose or otherwise); and (h) Purchaser shall have entered into written Employment Agreements with each of the Key Employees, in form and substance agreeable to the parties.
Appears in 1 contract
Conditions Precedent to Obligations of Purchaser at the Closing. 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 precedent (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) all representations and warranties of Seller and the Member Parties Company and/or any of the Shareholders contained herein shall be true and correct on and as of the Closing Date, except to the extent expressly made as of an earlier date;
(b) Seller the Company and each Member Party Shareholder shall have performed and complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller the Company or such Member Party Shareholder on or prior to the Closing Date;
(c) there shall not have been or occurred any Seller Company Material Adverse Change since the Balance Sheet DateChange;
(d) no Legal Proceedings shall have been instituted or threatened or claim or demand made against Sellerthe Company, any Member PartyShareholder, Parent or Purchaser seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby;
(e) 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;
(f) the Employment Agreements shall be in full force and effect and none of the employees party thereto shall have become employed by any Person other than the Company or indicated that he does not intend to continue employment with the Company following the Closing;
(g) (i) to the extent applicable, the waiting period under the HSR Act shall have expired or early termination shall have been granted and the Company shall have obtained or made any other consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Body required to be obtained or made by it in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby and (ii) the Company shall have obtained all consents, waivers and approvals required for the consummation of the transactions herein in a form reasonably satisfactory to Purchaser;
(h) Each Shareholder shall have delivered to Purchaser the following:
(i) a certificate(s) representing all issued and outstanding Company Shares owned by such Shareholder endorsed in blank or with stock powers duly executed to transfer all such Company Shares to Purchaser;
(ii) a copy of IRS Form W-9 duly and properly executed by such Shareholder;
(iii) an affidavit described in Section 1445(b)(2) of the Code from such Shareholder in form and substance reasonably satisfactory to Purchaser; and
(iv) such other documents, instruments or certificates as shall be reasonably requested by Purchaser or its counsel.
(i) In addition, Purchaser shall have received the following items:
(i) a certificate executed by each Shareholder dated the Closing Date to the effect that each of the conditions specified in Section 5.1(a) through (e) are satisfied in all respects
(ii) a legal opinion of counsel to the Company and the Shareholders in the form of Exhibit A hereto;
(iii) copies of board of directors and shareholder resolutions, certified by the Secretary of the Company, as to the authorization of this Agreement and all of the transactions contemplated hereby;
(iv) (A) the certificate of incorporation, as amended through the Closing Date, of the Company, certified as of a recent date by the Secretary of State of the State of Minnesota, (B) good standing certificates for the Company, certified by the Secretary of State of the State of Minnesota, and each state in which the Company is qualified to do business as a foreign corporation, as of a recent date, and (C) a copy of the by-laws (or similar organizational document) of the Company, as in effect on the Closing Date, certified by the Secretary of the Company;
(v) all Consents, if any, with respect to Contracts shall have been obtained, including without limitation such Consents listed on Schedule II, and Purchaser shall have received satisfactory evidence thereof;
(vi) a duly executed assignment of lease and estoppel certificate with respect to each Real Property Lease in form and substance reasonably satisfactory to Purchaser and its counsel;
(vii) letters in form and substance reasonably satisfactory to it Purchaser from all holders of indebtedness of Seller the Company that would be reflected on Seller’s consolidated balance sheet as of the Closing Date or disclosed in the footnotes thereto (other than any such indebtedness that is an Assumed Liability) Balance Sheet or that is secured by any of the Assets assets of the Company confirming the full payment and satisfaction of such indebtedness indebtedness, if any, to be paid at or prior to Closing (by way of application of a portion of the Purchase Price for such purpose or otherwise), and all related Liens shall have been released and appropriate UCC termination statements filed with respect thereto;
(gviii) Purchaser shall have received confirmation that any Affiliate Receivables have been have and all indebtedness owing from or to directors, officers, employees or stockholders of the Company has been fully repaid as of the time of the Closing (by way of application of a portion of the Purchase Price for such purpose or otherwise); and;
(hix) Purchaser shall have entered into written Employment Agreements with each of the Key Employeesreleases from Xxxxxx Xxxxxxx and Xxxxx Xxxxxxx, in form and substance agreeable reasonably satisfactory to Purchaser and its counsel;
(x) audited financial statements for the Company, prepared by BDO Xxxxxxx, LLP which satisfy the Form 8-K filing requirements of the Exchange Act applicable to the partiestransactions contemplated by this Agreement, and which do not materially differ from the Financial Statements and Balance Sheet; provided, however, that in determining whether such audited financial statements materially differ from the Financial Statements and the Balance Sheet, neither the lack of footnotes nor any normal year-end adjustments in the Financial Statements and Balance Sheet shall be considered; and
(xi) such other documents, instruments or certificates as shall be reasonably requested by Purchaser or its counsel.
(j) all the directors and officers of the Company shall have resigned effective as of the Closing, except Xxxxxx Xxxxxxx shall not resign as a director and Xxxxx Xxxxxxx shall not resign as president of the Company, and individuals designated by Purchaser shall have been elected or appointed as directors and officers of the Company, effective as of the Closing;
Appears in 1 contract
Conditions Precedent to Obligations of Purchaser at the Closing. The obligation of Parent and Purchaser Purchasers 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 Purchasers in whole or in part to the extent permitted by applicable Law):
(a) all representations and warranties of each Seller and the Member Parties contained herein that are qualified by materiality shall be true and correct on as of the Closing Date, except to the extent expressly made as of an earlier date, and all representations and warranties of each Seller contained herein that are not qualified by materiality shall be true and correct in all material respects as of the Closing Date, except to the extent expressly made as of an earlier date;
(b) each Seller and each Member Party shall have performed and complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by such Seller or such Member Party on or prior to the Closing Date;
(c) there shall not have been or occurred any Seller Material Adverse Change since the Balance Sheet Date;
(d) no Legal Proceedings shall have been instituted or threatened or claim or demand made against any Seller, any Member Party, Parent or Purchaser seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby;
(e) 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;
(f) Purchaser any waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"), applicable to the transactions contemplated by this Agreement shall have expired or been terminated;
(g) provision reasonably satisfactory to Parent and Purchasers shall have been made for the satisfaction of all intercompany indebtedness (by way of application of a portion of the Purchase Price for such purpose or otherwise);
(h) Parent and Purchasers shall have received letters in form and substance reasonably satisfactory to it them from all holders of indebtedness of any Seller that would be reflected on Sellerthe Company’s consolidated balance sheet as of the Closing Date or disclosed in the footnotes thereto (other than any such indebtedness that is an Assumed Liability) or that is secured by any of the Assets confirming the full payment and satisfaction of such indebtedness (by way of application of a portion of the Purchase Price for such purpose or otherwise), and all related Liens shall have been released and appropriate UCC termination statements filed with respect thereto;
(gi) Purchaser Parent and Purchasers shall have received confirmation that any the Affiliate Receivables have been have been fully repaid as of the time of the Closing (by way of application of a portion of the Purchase Price for such purpose or otherwise);
(j) Parent and Purchasers shall have received a certificate of non-foreign person status in the form prescribed by United States Treasury Regulation § 1.1445-2(b)(2)(iii) with respect to SHHC in form and substance reasonably satisfactory to them;
(k) Sellers shall have delivered all Consents that are (A) required for the assumption of any Contract related to an Employee Benefit Plan or Pension Plan that will be assumed by Purchaser or Parent pursuant to Section 10.2 or (B) listed or described on Schedule IV, each in form and substance reasonably satisfactory to Parent and Purchaser (collectively, the "Closing Consents"); and
(hl) Purchaser all items required by Section 7.1 shall have entered into written Employment Agreements with each of the Key Employees, in form and substance agreeable to the partiesbeen delivered by Sellers.
Appears in 1 contract
Conditions Precedent to Obligations of Purchaser at the Closing. 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 Parent and Purchaser in whole or in part to the extent permitted by applicable Law):
(a) all representations and warranties of Seller and the Member Parties Members contained herein in the Transaction Documents shall be true and correct on and as of the Closing Date, except to the extent expressly made as of an earlier date;
(b) Seller and each Member Party shall have performed and complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller or such Member Party on or prior to the Closing Date;
(c) there shall not have been or occurred any Seller Material Adverse Change since the Balance Sheet Date;
(d) no Legal Proceedings shall have been instituted or threatened or claim or demand made against Seller, any Member PartyMember, Parent or Purchaser seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby;
(e) 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;
(f) Purchaser shall have received letters in form and substance satisfactory to it Purchaser from Xxxxxx and all other holders of indebtedness of Seller that would be reflected on Seller’s consolidated balance sheet as of the Closing Date or disclosed in the footnotes thereto (other than any such indebtedness that is an Assumed Liability) or that is secured by any of the Assets confirming the full payment and satisfaction of such indebtedness (by way of application of a portion of the Purchase Price for such purpose or otherwise), and the release of all related Liens shall have been released and the authority of Purchaser and its representatives to file appropriate UCC termination statements filed with respect theretothereto (the “Payoff Letters”);
(g) Purchaser shall have received confirmation that any Affiliate Receivables have been have all indebtedness owing from directors, officers, employees or stockholders of Seller has been fully repaid as of the time of the Closing (by way of application of a portion of the Purchase Price for such purpose or otherwise); and
(h) Purchaser The Key Employees and all other employees listed on Schedule III shall have entered into written Employment Agreements with each of the Key Employees, in form and substance agreeable to the partiesbecome Transferred Employees (as defined below).
Appears in 1 contract
Conditions Precedent to Obligations of Purchaser at the Closing. 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 Parent and Purchaser in whole or in part to the extent permitted by applicable Law):
(a) all representations and warranties of Seller and contained in the Member Parties contained herein Transaction Documents shall be have been true and correct on and as of the Closing Date, except to the extent expressly made as of an earlier datedate hereof;
(b) Seller and each Member Party shall have performed and complied in all material respects with all obligations and covenants required by this Agreement the Transaction Documents to be performed or complied with by Seller or such Member Party on or prior to the Closing Date;
(c) there shall not have been or occurred any Seller Material Adverse Change since the Balance Sheet Date;
(d) no Legal Proceedings shall have been instituted or threatened or claim or demand made against Seller, any Member PartySeller , Parent or Purchaser seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby;
(e) 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;
(f) Purchaser shall have received letters in form and substance satisfactory to it from all holders UPMC Health System, Highmark Health Ventures Investment Fund, L.P. and any other holder of indebtedness of Seller that would be reflected on Seller’s consolidated balance sheet as of the Closing Date or disclosed in the footnotes thereto (other than any such indebtedness that is an Assumed Liability) or Person that is secured by any of the Assets confirming the full payment and satisfaction release of such indebtedness (by way of application of a portion of the Purchase Price for such purpose or otherwise), and all related Liens Liens; Purchaser shall have been released and be authorize pursuant to such letters to file appropriate UCC termination statements filed with respect thereto; and UPMC Health System, Highmark Health Ventures Investment Fund, L.P. and each such other holder shall have delivered to Purchaser a covenant not to bring any claim against Purchaser with respect to such indebtedness, including any claim based on fraudulent conveyance, fraudulent transfer or any similar theory;
(g) Purchaser the employment of all employees of Seller other than Xxxxx Xxxxxxx, Xxxxxxxx Xxxxxxxxx and Xxxxxx Xxx shall have received confirmation terminated (which termination may occur simultaneously with the Closing);
(h) Seller shall have terminated its relationship with its scientific consultants and advisors to the extent directed by Purchaser and shall not have taken any action to terminate such relationships except as so directed by Purchaser (it being agreed that any Affiliate Receivables have such relationship with Xxxxx Xx has been have been fully repaid as of the time of the Closing (by way of application of a portion of the Purchase Price for such purpose or otherwisewill be terminated); and
(hi) Purchaser any waiting period under the HSR Act applicable to the transactions contemplated by this Agreement shall have entered into written Employment Agreements with each of the Key Employees, in form and substance agreeable to the partiesexpired or been terminated.
Appears in 1 contract
Samples: Asset Purchase Agreement (XTL Biopharmaceuticals LTD)
Conditions Precedent to Obligations of Purchaser at the Closing. 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 Parent and Purchaser in whole or in part to the extent permitted by applicable Law):
(a) all representations and warranties of Seller and the any Company and/or any Member Parties contained herein shall be true and correct on and as of the Closing Date, except to the extent expressly made as of an earlier date;
(b) Seller each Company and each Member Party shall have performed and complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller such Companies or such Member Party on or prior to the Closing Date;
(c) there shall not have been or occurred any Seller Company Material Adverse Change since the Balance Sheet DateDecember 31, 2006;
(d) no Legal Proceedings shall have been instituted or threatened or claim or demand made against Sellerany Company, any Member PartyMember, Parent or Purchaser seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby;
(e) 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;
(f) Purchaser any waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), applicable to the transactions contemplated by this Agreement shall have received expired or been terminated;
(g) the Employment Agreements shall be in full force and effect and none of the employees party thereto shall have become employed by any Person other than the Companies or indicated that he does not intend to continue employment with the Companies following the Closing;
(h) Each Member shall have delivered to Purchaser the following:
(i) assignments representing all issued and outstanding Membership Interests, owned by such Member, executed to transfer all Membership Interests to Purchaser;
(ii) a copy of IRS Form W-9 duly and properly executed by such Member;
(iii) an affidavit described in Section 1445(b)(2) of the Code from such Member in form and substance reasonably satisfactory to Purchaser;
(iv) stock transfer forms, board resolutions and forms 288 (a), each as reasonably requested by Purchaser or its counsel to effectuate the transfer of the equity interests of BioSector 2, Limited to Purchaser;
(v) share transfer deeds, minutes of Partners' decisions by unanimous written consent, amended articles of association, power of attorney for legal formalities and delegation of powers, each as reasonably request by Purchaser to effectuate the transfer of the equity interests of Xxxxxxxx Chicco Agency SARL; and
(vi) such other documents, instruments or certificates as shall be reasonably requested by Purchaser or its counsel.
(i) The Representative shall have delivered to Purchaser the following:
(i) a certificate executed by the Representative dated the Closing Date to the effect that each of the conditions specified in Section 6.1(a) through (c) is satisfied in all respects;
(ii) a legal opinion of counsel for the Companies in form satisfactory to Purchaser covering the matters set forth on Exhibit B hereto, subject to the good faith negotiation of the parties;
(iii) (A) articles of organization (or similar organizational document), as amended through the Closing Date, of each Company and each Subsidiary, certified as of a recent date by an appropriate official of the jurisdiction of incorporation or formation, (B) good standing certificates for each Company and each Subsidiary certified as of a recent date by the Secretary of State of each State in which it is authorized to conduct business, or, in the case of Subsidiaries formed outside the United States, certified by a similar government official or body, and (C) copies of the by-laws (or similar organizational document) of each Company and each Subsidiary, as in effect on the Closing Date, certified by the Secretary of such Company or Subsidiary;
(iv) a non competition agreement in the form attached hereto as Exhibit D from each Participant (as defined in the Phantom Equity Plan) with the duration specified for such Participant previously disclosed to Purchaser;
(v) confirmation from AdMedia that, except for the payment to be made pursuant to the last sentence of Section 1.2(a), no Company or Subsidiary will have any post-Closing liability to AdMedia under the AdMedia Engagement Letter;
(vi) letters in form and substance reasonably satisfactory to it Purchaser from all holders of indebtedness Indebtedness (including, without limitation, Indebtedness arising under that certain line of Seller credit and those certain term loans from Valley National Bank and all related UCC filings) of any Company or Subsidiary that would be reflected on Seller’s consolidated the balance sheet of any Company or Subsidiary as of the Closing Date or disclosed in the footnotes thereto (other than any such indebtedness that is an Assumed Liability) or that is secured by any of the Assets assets of any Company or Subsidiary, except for Indebtedness constituting equipment or leasehold financing that may permissibly remain outstanding in accordance with the terms of Parent's credit facilities, confirming the full payment and satisfaction of such indebtedness Indebtedness (by way of application of a portion of the Purchase Price for such purpose or otherwise), ; and evidence that all related Liens shall have been released and appropriate UCC and USPTO termination statements filed with respect thereto;
(gvii) Purchaser shall have received confirmation that any Affiliate Receivables have and all indebtedness owing from directors, officers, employees or members of each of the Companies and the Subsidiaries has been have cancelled or has been fully repaid as of the time of the Closing (by way of application of a portion of the Purchase Price for such purpose or otherwise);
(viii) evidence that
(A) all equity interests of any Company in Puissance Enterprises, LLC (“Puissance”) have been transferred to third parties;
(B) all guaranties or obligations of any Company related to Puissance have been cancelled without any adverse accounting or other impact on any Company;
(C) all obligations of Puissance to any Company have been cancelled without any adverse accounting or other impact on any Company (other than the reduction in total assets arising from such cancellation); and
(hD) the employment or consulting relationship of each employee of or consultant to any Company who are relatives of either Member (“Related Personnel”) have been terminated without any adverse accounting or other impact on the Company.
(ix) an assignment of all interest in the tradename “BrandTectonics” from BrandTectonics, L.L.C. to CCA NY and of all interest in the tradename “Determinus” from Determinus, L.L.C. to CCA NY; and
(x) such other documents, instruments or certificates as shall be reasonably requested by Purchaser or its counsel.
(j) all the directors and officers of the Companies and the Subsidiaries other than those listed on Schedule III shall have resigned effective as of the Closing and individuals designated by Purchaser shall have entered into written Employment Agreements with each been elected or appointed as directors and officers of the Key EmployeesCompanies and the Subsidiaries, in form and substance agreeable to effective as of the partiesClosing.
Appears in 1 contract
Conditions Precedent to Obligations of Purchaser at the Closing. 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 Parent and Purchaser in whole or in part to the extent permitted by applicable Law):
(a) all representations and warranties of any Company and/or any Seller and the Member Parties contained herein shall be true and correct in all material respects on and as of the Closing DateDate provided, except to however, that for purposes of the extent expressly made as of an earlier dateforegoing clause representations and warranties that contain materiality qualifiers (or the like) shall be true and correct in all respects;
(b) Seller each Company and each Member Party Seller shall have performed and complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller such Company or such Member Party Seller on or prior to the Closing Date;
(c) there shall not have been or occurred any Seller Company Material Adverse Change since the Balance Sheet DateDecember 31, 2006;
(d) no Legal Proceedings shall have been instituted or threatened or claim or demand made against Sellerany Company, any Member PartySeller, Parent or Purchaser seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby;
(e) 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;
(f) Purchaser any waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), applicable to the transactions contemplated by this Agreement shall have received letters expired or been terminated;
(g) the Employment Agreement shall be in full force and effect and the employee party thereto shall not have become employed by any Person other than any Company or indicated that he does not intend to continue employment with the applicable Company following the Closing;
(h) Each Seller shall have delivered to Purchaser the following:
(i) certificates representing all shares of Capital Stock, endorsed in blank or with stock powers duly executed to transfer all such Capital Stock to Purchaser;
(ii) assignments representing all issued and outstanding Membership Interests owned by such Seller, executed to transfer all Membership Interests to Purchaser;
(iii) a copy of IRS Form W-9 duly and properly executed by such Seller;
(iv) an affidavit described in Section 1445(b)(2) of the Code from such Seller in form and substance reasonably satisfactory to Purchaser; and
(v) such other documents, instruments or certificates as shall be reasonably requested by Purchaser or its counsel.
(i) The Representative shall have delivered to Purchaser the following:
(i) a certificate executed by the Representative dated the Closing Date to the effect that each of the conditions specified in Section 6.1(a) through (c) is satisfied in all respects;
(ii) a legal opinion of King & Spalding, counsel for the Company, in the form of Exhibit D hereto;
(iii) a certificate of the secretary of each Company certifying to (A) such Company’s attached Organizational Documents, (B) the adoption of resolutions of such Company and its shareholders or members, as applicable, and (C) the incumbency of the officers signing the Transaction Documents on behalf of such Company (together with their specimen signatures);
(iv) good standing certificates for each Company certified by the Secretary of State of the state of organization of each Company, as of a recent date;
(v) all Consents listed on Schedule II;
(vi) a duly executed estoppel certificate with respect to each Real Property Lease in form and substance satisfactory to it Purchaser and its counsel;
(vii) letters in form and substance reasonably satisfactory to Purchaser from all holders of indebtedness Indebtedness of Seller each Company that would be reflected on Sellersuch Company’s consolidated balance sheet as of the Closing Date or disclosed in the footnotes thereto (other than any such indebtedness that is an Assumed Liability) or that is secured by any of the Assets such Company's assets confirming the full that, upon payment of amounts specified in such letters, such Indebtedness will be fully paid and satisfaction of such indebtedness (by way of application of a portion of the Purchase Price for such purpose or otherwise), satisfied and all related Liens shall have been released will be released, and providing Purchaser with the authority to file appropriate UCC termination statements filed and other evidences of lien release with respect theretothereto (including any such filings to be made with the United States Patent and Trademark Office);
(gviii) Purchaser shall have received confirmation that there is no Indebtedness owing from directors, officers, employees or members of any Affiliate Receivables have been have been fully repaid Company as of the time of the Closing (by way of application of a portion of the Purchase Price for such purpose or otherwise)Closing; and
(hix) such other documents, instruments or certificates as shall be reasonably requested by Purchaser or its counsel;
(j) all the directors and officers of each Company other than AWAC shall have resigned effective as of the Closing, except that Xx. Xxxxxxxx shall continue to serve as a director of IHS and iProcert (and shall be elected to the Board of Directors of Purchaser) and shall continue to serve as the President and Chief Executive Officer of IHS and iProcert (and shall be elected as the President and Chief Executive Officer of Purchaser) (all current directors and officers of the Companies being listed on Schedule III), and individuals designated by Purchaser shall have entered into written Employment Agreements with each been elected or appointed as directors and officers of the Key EmployeesCompanies (other than AWAC), effective as of the Closing; and
(k) AWAC shall have delivered to Purchaser (i) the duly executed Xxxx of Sale and (ii) certificates of title to all motor vehicles included in form and substance agreeable the AWAC Assets (if any), duly endorsed for transfer to Purchaser as of the partiesClosing Date.
Appears in 1 contract
Conditions Precedent to Obligations of Purchaser at the Closing. 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 precedent (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) all representations and warranties of Seller and the Member Parties contained herein shall be true and correct in all material respects on and as of the Closing Date, except to the extent expressly made as of an earlier date;
(b) Seller and each Member Party shall have performed and complied in all material respects with all obligations and covenants required by this Agreement to be performed performed, or complied with with, by Seller or such Member Party on or prior to the Closing Date;
(c) there shall not have been or occurred any Seller Material Adverse Change since the Balance Sheet Datein either Lodge Resort or either of their respective Businesses;
(d) no Legal Proceedings shall have been instituted or threatened or claim or demand made against Sellerthe Partnership, any Member PartySubsidiary of the Partnership, Parent Seller or Purchaser seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby;
(e) 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;
(f) the Partnership, Purchaser and Seller shall have received letters obtained all Consents, waivers and approvals required from any Person for the execution and delivery of this Agreement and the consummation of the transactions herein in a form and substance on conditions reasonably satisfactory to it from all holders Purchaser and Seller, including, but not limited to, the Consent of indebtedness of Lender (Purchaser and Seller acknowledge and agree that would be reflected on Seller’s consolidated balance sheet as of the Closing Date or disclosed in the footnotes thereto (other than any such indebtedness that is an Assumed Liability) or that is secured by any of the Assets confirming the full payment and satisfaction of such indebtedness (by way of application a Lender requirement of a portion principal prepayment as a condition to issuing the Consent of the Purchase Price for such purpose or otherwiseLender shall be deemed to be unreasonable), and all related Liens shall have been released and appropriate UCC termination statements filed with respect thereto;
(g) Purchaser shall have received confirmation an appraisal of each of xxx Xxxxx Lodge and the Sandusky Lodge in an amount that is sufficient to avoid Purchaser and/or any Affiliate Receivables have been have been fully repaid as of the time of Purchaser from incurring negative accounting ramifications on or after the Closing (by way of application of a portion of the Purchase Price for such purpose or otherwise); andDate;
(h) Purchaser Seller shall have entered into written Employment Agreements with each delivered to Purchaser the following:
(i) an assignment of all of Seller’s right, title and interest in and to the Seller Interest, duly and validly executed to transfer ownership of the Key Employeesentire Seller Interest to Purchaser, in form and substance agreeable reasonably satisfactory to Seller and Purchaser;
(ii) a copy of IRS Form W-9 duly and properly executed by Seller;
(iii) an affidavit described in Section 1445(b)(2) of the Code from Seller in form and substance reasonably satisfactory to Purchaser; and
(iv) such other documents, instruments or certificates as shall be reasonably requested by Purchaser or its counsel.
(i) At or prior to the partiesClosing, xxx Xxxxx Management Agreement and the License Fee Agreements shall have each been terminated;
(j) At or prior to the Closing, Dells Tenant, Manager and Guarantor shall have entered into the New Dells Management Agreement;
(k) At or prior to the Closing, Dells Tenant and an Affiliate of Seller shall have entered into the New Dells License Agreement;
(l) At or prior to the Closing, Sandusky Tenant, Manager and Guarantor shall have entered into the Sandusky Management Agreement Amendment;
(m) Purchaser shall have received the following items:
(i) a certificate executed by a duly authorized officer of Seller dated the Closing Date to the effect that each of the conditions specified in Section 6.1(a) through (e) are satisfied in all respects;
(ii) copies of resolutions of the manager(s) of Seller and its member(s) as required by applicable law, certified by the Secretary of Seller, as to the authorization of this Agreement and all of the transactions contemplated hereby;
(iii) (A) the certificate of formation, as amended through the Closing Date, of Seller, certified as of a recent date by the Secretary of State of the State of Delaware, (B) good standing certificates for Seller, certified by the Secretary of State of the State of Delaware, and each state in which Seller is qualified to do business as a foreign limited liability company, as of a recent date, and (C) a copy of the limited liability company agreement (or similar organizational document) of Seller, as in effect on the Closing Date, certified by the Secretary of Seller; and
(iv) such other documents, instruments or certificates as shall be reasonably requested by Purchaser or its counsel.
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