Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion), on or prior to the Closing Date, of each of the following conditions: (a) (i) the representations and warranties made by Sellers in Article III (in each case, other than the Fundamental Representations) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except (A) that the representations and warranties that are made as of a specified date need be true and correct only as of such date and (B) to the extent the failure of such representations and warranties to be true and correct as of the Closing Date or such other specified date, as applicable, has not had a Material Adverse Effect (provided that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.5(a), Section 3.15 and Section 3.16 (collectively, the “Fundamental Representations”) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except that such Fundamental Representations that are made as of a specified date need be true and correct in all respects only as of such date; (b) Sellers shall have performed and complied in all material respects with the covenants and agreements contained in this Agreement which are required to be performed and complied with by Sellers on or prior to the Closing Date; (c) Purchaser shall have received a certificate signed by an executive officer of Sellers stating that the conditions specified in Section 7.2(a) and 7.2(b) have been satisfied; (d) Sellers shall have delivered, or caused to be delivered, to Purchaser all of the items set forth in Section 2.4; (e) Purchaser shall have entered into a lease for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”); (f) since the date hereof, there shall not have occurred and be continuing any Material Adverse Effect; and (g) the Bankruptcy Court shall have approved and authorized an Order, which may be the Sale Order, permitting and authorizing the Designation Rights Period as set forth in Section 1.5(b).
Appears in 2 contracts
Samples: Asset Purchase Agreement (F9 Investments LLC), Asset Purchase Agreement (LL Flooring Holdings, Inc.)
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement Closing are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion), on or prior to at the Closing DateClosing, of each of the following conditions:
(a) (i) the representations and warranties made by Sellers in Article III (in each case, other than the Fundamental Representations) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except (A) that the representations and warranties that are made as of a specified date need be true and correct only as of such date and (B) to the extent the failure of such representations and warranties to be true and correct as of the Closing Date or such other specified date, as applicable, dates has not had a Material Adverse Effect (provided that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.5(a), Section 3.15 3.2 and Section 3.16 3.14 (collectively, the “Fundamental Representations”) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except that such Fundamental Representations that are made as of a specified date need be true and correct in all material respects only as of such date;
(b) Sellers No Seller shall have performed and complied breached in all a manner that is material respects with respect to the Transactions, taken as a whole, the covenants and agreements contained in this Agreement which are required to be performed and or complied with by Sellers such Seller under this Agreement on or prior to Closing without curing such breach prior to the Closing Date;; and
(c) Purchaser shall have received a certificate signed by an executive officer of Sellers stating that the conditions specified in Section 7.2(a) and 7.2(b) have been satisfied;
(d) Sellers shall have delivered, or caused to be delivered, to Purchaser all of the items set forth in Section 2.4;
(e) Purchaser shall have entered into a lease for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”);
(f) since the date hereof, there shall not have occurred and be continuing any Material Adverse Effect; and
(g) the Bankruptcy Court shall have approved and authorized an Order, which may be the Sale Order, permitting and authorizing the Designation Rights Period as set forth in Section 1.5(b).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Complete Solaria, Inc.), Asset Purchase Agreement (Sunpower Corp)
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement Closing are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion), on or prior to the Closing Date, of each of the following conditions:
(a) (i) the representations and warranties made by Sellers in Article III (in each case, other than the Fundamental Representations and the Seller Sufficiency Representations) shall be true and correct in each case in all material respects as of the Closing Date as though made on and as of the Closing Date, except Date (A) that the other than representations and warranties that are made as of a specified date need be true and correct only as of such date and (B) to the extent date), except where the failure of such representations and warranties to be true and correct (without giving effect to any limitation as to “materiality”, “Material Adverse Effect” or similar qualifiers contained therein (other than “material weaknesses” in Section 3.4(d) and the word “Material” when used in the instances of the Closing Date or such other specified date, as applicable, defined term “Material Contract” and “Material Adverse Effect” in Section 3.19)) has not had had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (provided that for purposes of the foregoing clause (i)Effect, the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.5(a), Section 3.15 ) and Section 3.16 3.17 (collectively, the “Fundamental Representations”) shall be true and correct in all material respects other than for de minimis inaccuracies, in each case as of the Closing Date as though all such representations and warranties had been made on and as of the Closing Date, except Date (other than representations and warranties that such Fundamental Representations that are made by their terms address matters only as of a another specified date need date, which shall be so true and correct only as of such other specified date) and (iii) the representations and warranties set forth in Section 3.5(b) (the “Seller Sufficiency Representations”) shall be true and correct in all respects only respects, in each case as of the Closing Date as though such daterepresentations and warranties had been made as of the Closing Date;
(b) Sellers shall have performed and or complied with, or caused to be performed or complied with, in all material respects with respects, all of the obligations and covenants and agreements contained in required by this Agreement which are required to be performed and or complied with by Sellers on or prior to the Closing DateClosing;
(c) Purchaser shall have received a certificate signed by an executive officer of Sellers stating that the conditions specified in Section 7.2(a) and 7.2(b) have been satisfied;
(d) Sellers shall have delivered, or caused to be delivered, to Purchaser all of the items set forth in Section 2.4;
(ed) Purchaser shall have entered into a lease for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”);
(f) since From the date hereofof this Agreement, there shall not have occurred and be continuing any Material Adverse Effect; and
(g) the Bankruptcy Court shall have approved and authorized an Order, which may be the Sale Order, permitting and authorizing the Designation Rights Period as set forth in Section 1.5(b).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Rite Aid Corp), Asset Purchase Agreement (Rite Aid Corp)
Conditions Precedent to the Obligations of Purchaser. The obligations obligation of Purchaser to consummate effect the transactions contemplated by this Agreement are shall be subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion), on at or prior to the Closing Date, of each of the following conditions:
additional conditions precedent: (a) (i) the The representations and warranties made by Sellers of the Seller Parties contained in Article III (in each case, other than the Fundamental Representations) this Agreement shall be true and correct in all material respects at and as of the Closing Date as though made on and as of the Closing Date(without giving any effect to any materiality or Material Adverse Effect qualifications contained therein), except (A) that the for changes permitted by this Agreement and except for those representations and warranties that are made address matters as of a specified date need particular dates which shall be true and correct only at and as of such date and particular dates (B) without giving any effect to the extent any materiality or Material Adverse Effect qualifications contained therein), except where the failure of such representations and warranties to be so true and correct as of the Closing Date or such other specified date, as applicable, has would not had have a Material Adverse Effect (provided that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.5(a), Section 3.15 and Section 3.16 (collectively, the “Fundamental Representations”) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except that such Fundamental Representations that are made as of a specified date need be true and correct in all respects only as of such date;
Effect; (b) Sellers shall have performed and complied in all material respects with All of the covenants and agreements contained in this Agreement which are required to be performed and complied with or performed by Sellers the Seller Parties on or prior to the Closing Date;
Date shall have been complied with or performed in all material respects; (c) Purchaser shall have received a certificate signed by an executive officer of Sellers stating that the conditions specified in Section 7.2(a) and 7.2(b) have been satisfied;
(d) Sellers shall have delivered, or caused to be delivered, to Purchaser all each of the items certificates, agreements, instruments and other documents set forth in Section 2.4;
4.2 hereof; (d) Except as set forth on Schedule 3.2(d), all Liens (except Permitted Liens) on the stock or assets of the Foreign Subsidiaries shall have been discharged (including for this purpose any Liens of the Bank Agent) by each Foreign Subsidiary, as appropriate, or by the Person in whose favor such Liens exist, at no expense to Purchaser; provided that, for purposes of this condition, Liens the existence of which would not have a Material Adverse Effect shall be disregarded; and 10 <PAGE> (e) Purchaser shall have entered into a lease for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”);
(f) since Since the date hereof, there shall not have occurred and be continuing any no Material Adverse Effect; and
(g) the Bankruptcy Court Effect shall have approved and authorized an Orderoccurred. If the Closing occurs, which may be the Sale Order, permitting and authorizing the Designation Rights Period as all closing conditions set forth in this Section 1.5(b)3.2 which have not been fully satisfied as of the Closing shall be deemed to have been fully waived by Purchaser.
Appears in 1 contract
Samples: Purchase Agreement
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretionPurchaser), on or prior to the Closing Date, of each of the following conditions:
(a) (i) the representations and warranties made by Sellers Seller set forth in Article III II and Article III, (in each case, other than the Fundamental Representations) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing DateClosing, except (A) that the representations and warranties that are made as of a specified date need be true and correct in all respects only as of such date and (B) to the extent the failure of such representations and warranties to be true and correct as of the Closing Date or such other specified date, as applicable, dates has not had a Material Adverse Effect (provided that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.5(a2.1 (Organization and Qualification and Capitalization of Company), Section 3.15 2.4 (Brokers), Section 3.1 (Organization of Seller), Section 3.2 (Authorization and Validity of Agreement), and Section 3.16 3.5 (Brokers) (collectively, the “Fundamental Representations”) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing DateClosing, except that such Fundamental Representations that are made as of a specified date need be true and correct in all material respects only as of such date;
(b) Sellers Seller shall not have performed and complied breached in all a manner that is material respects with respect to the transactions contemplated by this Agreement, taken as a whole, the covenants and agreements contained in this Agreement which are required to be performed and or complied with by Sellers on Seller under this Agreement at or prior to the Closing DateClosing;
(c) Purchaser shall have received on and as of the Closing a certificate signed by of an executive authorized officer of Sellers stating Seller confirming that (i) the conditions specified set forth in Section Sections 7.2(a) and 7.2(b) applicable to Seller have been satisfied; and (ii) the conditions to (A) the Closing Date set forth in the Plan and (B) the Restructuring set forth in the Plan, in each case, shall have been satisfied (or waived with the Consent of Purchaser) in accordance with the Plan;
(d) Sellers Purchaser shall have delivered, or caused to be delivered, to Purchaser all received on and as of the items set forth Closing an Assignment of Equity Interests for each Company substantively in Section 2.4the form attached hereto as Exhibit A, executed and delivered by Seller and New England Radiation Therapy Management Services, Inc.;
(e) Purchaser shall have entered into a lease for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror received on and as of the DC) substantially Closing a Bill of Sale and Assignment and Assumption Agreement substantively in the form set forth on Exhibit D attached hereto (the “DC Lease”);as Exhibit B, executed and delivered by Seller and Purchaser; and
(f) since Seller shall have delivered or caused to be delivered to Purchaser the following items:
(i) the consent of all members of the Board of Managers of RWRT, to the continuation of RWRT as a limited liability company notwithstanding the bankruptcy of the applicable Seller as a member of RWRT, effective as of a date hereofprior to the end of the 90-day period following June 1, there shall not have occurred and be continuing any Material Adverse Effect2023;
(ii) the consent of all members of the Board of Managers of SNERCC, effective as of prior to June 1, 2023, to the continuation of SNERCC as a limited liability company notwithstanding the bankruptcy of the applicable seller as a member of SNERCC, effective as of a date prior to the end of the 90-day period following June 1, 2023;
(iii) the consent of all members of the Board of Managers of RWRT to the transfer of the applicable seller’s membership interest in RWRT to Purchaser in accordance with Section 13.1 of the operating agreement of RWRT;
(iv) the consent of all members of the Board of Managers of SNERCC to the transfer of the applicable seller’s membership interest in SNERCC to Purchaser in accordance with Section 13.1 of the operating agreement of SNERCC;
(v) the waiver by the non-seller members of RWRT of the right of first refusal set forth in Section 14 of the operating agreement of RWRT; and
(gvi) the Bankruptcy Court shall have approved and authorized an Order, which may be waiver by the Sale Order, permitting and authorizing non-seller members of SNERCC of the Designation Rights Period as right of first refusal set forth in Section 1.5(b)14 of the operating agreement of SNERCC.
Appears in 1 contract
Samples: Investment Agreement (American Shared Hospital Services)
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement Closing are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion), on or prior to the Closing Date, of each of the following conditions:
(a) (i) the representations and warranties made by Sellers in Article III (in each case, other than the Fundamental Representations) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except (A) that the representations and warranties that are made as of a specified date need be true and correct only as of such date and (B) to the extent the failure of such representations and warranties to be true and correct as of the Closing Date or such other specified date, as applicable, dates has not had and would not reasonably be expected to have a Material Adverse Effect (provided that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.5(a), Section 3.15 and Section 3.16 3.19 (collectively, the “Fundamental Representations”) shall be true and correct in all material respects (except for any de minimis inaccuracies) as of the Closing Date as though made on and as of the Closing Date, except that such Fundamental Representations that are made as of a specified date need be true and correct in all respects (except for any de minimis inaccuracies) only as of such date;
(b) Sellers shall have performed and complied in all material respects with the covenants and agreements contained in this Agreement which are required to be performed and or complied with by Sellers under this Agreement on or prior to the Closing DateClosing;
(c) Purchaser from and after the date of this Agreement, there shall not have received a certificate signed by an executive officer of Sellers stating that the conditions specified in Section 7.2(a) and 7.2(b) have been satisfiedoccurred any Material Adverse Effect;
(d) the condition set forth on Schedule 7.2(d) shall have been satisfied in accordance with its terms; and
(e) Sellers shall have delivered, or caused to be delivered, to Purchaser all of the items set forth in Section 2.4;
(e) Purchaser shall have entered into a lease for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”);
(f) since the date hereof, there shall not have occurred and be continuing any Material Adverse Effect; and
(g) the Bankruptcy Court shall have approved and authorized an Order, which may be the Sale Order, permitting and authorizing the Designation Rights Period as set forth in Section 1.5(b).
Appears in 1 contract
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion)fulfillment, on or prior to the Closing Date, of each of the following conditions, any of which may be waived in writing by Purchaser in its sole discretion:
(a) Sellers shall have delivered to Purchaser (i) a certified copy of the Sale Order (which shall contain the terms described in Section 7.3) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.2(d));
(b) the representations and warranties made by Sellers in Article III (this Agreement or in each case, other than the Fundamental Representations) any Ancillary Document shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after giving effect to any such qualification), in each case as of the Closing Agreement Date as though made on and as of the Closing Date, except with the same force and effect as though all such representations and warranties had been made as of the Closing Date (A) that the other than representations and warranties that are made by their terms address matters only as of a another specified date need date, which shall be so true and correct only as of such date and (B) to the extent the failure of such representations and warranties to be true and correct as of the Closing Date or such other specified date, as applicable, has not had a Material Adverse Effect (provided that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.5(a), Section 3.15 and Section 3.16 (collectively, the “Fundamental Representations”) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except that such Fundamental Representations that are made as of a specified date need be true and correct in all respects only as of such date;
(bc) Sellers shall have performed and complied in all material respects with the covenants all obligations and agreements contained required in this Agreement which are required to be performed and or complied with by Sellers them on or prior to the Closing Date;
(c) Purchaser shall have received a certificate signed by an executive officer of Sellers stating that the conditions specified in Section 7.2(a) and 7.2(b) have been satisfied;
(d) Sellers shall have delivered, or caused to be delivered, to Purchaser Purchaser, all of the items set forth in Section 2.4;3.2; and
(e) Purchaser Sellers shall have entered into a lease for complied with the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”);
(f) since the date hereof, there shall not have occurred and be continuing any Material Adverse Effect; and
(g) the Bankruptcy Court shall have approved and authorized an Order, which may be the Sale Order, permitting and authorizing the Designation Rights Period as sale process deadlines set forth in Section 1.5(b)the Bidding Procedures Order.
Appears in 1 contract
Samples: Asset Purchase Agreement (Orchard Supply Hardware Stores Corp)
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate effect the transactions contemplated by this Agreement herein are further subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion), on at or prior to the Closing Date, of each Date of the following conditions, unless waived by Purchaser in writing:
(a) (i) the The representations and warranties made by Sellers of Seller set forth in Article III (in each case, other than the Fundamental Representations) this Agreement shall be true and correct in all material respects as of the date of this Agreement, and shall also be true and correct (except for such changes as are contemplated by the terms of this Agreement) on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date, except (A) that the representations if and warranties that are made as of a specified date need be true and correct only as of such date and (B) to the extent the failure of such representations and warranties any failures to be true and correct as would not have a material adverse effect on the Business.
(b) From the date of the Closing Date or such other specified date, as applicable, has not had a Material Adverse Effect (provided that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.5(a), Section 3.15 and Section 3.16 (collectively, the “Fundamental Representations”) shall be true and correct in all material respects as of the Closing Date as though made on and as of this Agreement through the Closing Date, except Seller shall not have suffered any change that such Fundamental Representations that are made as has had a net effect greater than Fifty Thousand Dollars ($50,000.00) on the Business, or the financial condition, assets, liabilities or earnings of Seller (a specified date need be true and correct "Material Adverse Change") in all respects only as the Business or the assets, operations or financial condition of such date;Seller (other than changes relating to the transactions contemplated by this Agreement).
(bc) Sellers Seller shall have performed all obligations and complied in all material respects with the covenants and agreements contained in this Agreement which are conditions required to be performed and complied with by Sellers on it under this Agreement at or prior to the Closing Date;
(c) Purchaser shall have received a certificate signed by an executive officer of Sellers stating that the conditions specified in Section 7.2(a) and 7.2(b) have been satisfied;.
(d) Sellers Seller shall have deliveredfurnished Purchaser with copies of resolutions duly adopted by its Boards of Directors approving the execution and delivery of this Agreement and all other necessary or proper corporate action to enable them to comply with the terms of this Agreement, or caused such resolutions to be delivered, to Purchaser all certified by the Secretary or Assistant Secretary of the items set forth in Section 2.4;Seller.
(e) Purchaser No event of default by Seller shall have entered into a lease for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”);
(f) since the date hereof, there shall not have occurred and be continuing with respect to any Material Adverse Effect; and
(g) of the Bankruptcy Court shall have approved and authorized an Order, which may be Assumed Liabilities as of the Sale Order, permitting and authorizing the Designation Rights Period as set forth in Section 1.5(b)Closing Date.
Appears in 1 contract
Conditions Precedent to the Obligations of Purchaser. The 7.1 All obligations of Purchaser to consummate the transactions contemplated by this Agreement under Article 2 and Article 9 are subject subject, at Purchaser's option, to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion), on or fulfillment prior to or at the Closing Date, Date of each of the following conditions:
(a) (i) the representations Each and warranties made by Sellers every representation and warranty of Seller as set forth in Article III (in each case, other than the Fundamental Representations) 5 of this Agreement shall be true and correct in all material respects accurate as of the date when made and shall be deemed to be made again at and as of the Closing Date as though made on and as of the Closing Date, except (A) that the representations and warranties that are made as of a specified date need shall then be true and correct only accurate in all respects.
(b) Seller shall have performed and complied with each and every covenant, agreement and condition required by this Agreement to be performed or complied with by Seller prior to or at Closing; provided, however, that if Seller has not obtained consents to assign in respect of the Gulf Fee Lease as of such date and (B) to the extent provided in Section 3.6, the failure of Seller to obtain such representations and warranties consents shall not be deemed to be true a breach of a covenant, agreement or condition of this Agreement.
(c) The Interests shall not have been materially and correct adversely affected as of the Closing Date in any way as a result of any casualty of disaster, accident, labor disputes, exercise of power of eminent domain or such other specified date, as applicable, has not had a Material Adverse Effect (provided that for purposes governmental event or Act of God or the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.5(a), Section 3.15 and Section 3.16 (collectively, the “Fundamental Representations”) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except that such Fundamental Representations that are made as of a specified date need be true and correct in all respects only as of such date;
(b) Sellers shall have performed and complied in all material respects with the covenants and agreements contained in this Agreement which are required to be performed and complied with by Sellers on or prior to the Closing Date;
(c) Purchaser shall have received a certificate signed by an executive officer of Sellers stating that the conditions specified in Section 7.2(a) and 7.2(b) have been satisfied;public enemy.
(d) Sellers No suit, action or other proceeding shall be pending or threatened before any court or governmental agency seeking to restrain, to prohibit or to obtain damages or other relief in connection with this Agreement or the consummation of the transactions contemplated hereby, and there shall have delivered, been no investigation or caused to be delivered, to Purchaser all of inquiry made or commenced by any governmental agency in connection with this Agreement or the items set forth in Section 2.4;transactions contemplated hereby.
(e) Purchaser shall have entered into a lease satisfied itself that no instruments have been filed for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”);
(f) since record from and after the date hereof, there shall not have occurred Purchaser's examination of title concluded that adversely affects the title of Seller to the Leases and be continuing any Material Adverse Effect; and
(g) the Bankruptcy Court shall have approved and authorized an Order, which may be the Sale Order, permitting and authorizing the Designation Rights Period as set forth in Section 1.5(b)Lands.
Appears in 1 contract
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement Closing are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion), on or prior to the Closing Date, of each of the following conditions:
(a) (i) the representations and warranties made by Sellers in Article III (in each case, other than the Fundamental RepresentationsRepresentations and other than the representations and warranties set forth in Section 3.4) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except (A) that the representations and warranties that are made as of a specified date, which, for the avoidance of doubt, shall not include the reference to “as of the date hereof” in the first sentence of Article III, need be true and correct in all respects only as of such date and (B) to the extent the failure of such representations and warranties to be true and correct as of the Closing Date or such other specified date, as applicable, dates has not had a Material Adverse Effect (provided that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.5(a), Section 3.15 3.2 and Section 3.16 3.7 (collectively, the “Fundamental Representations”) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except that such Fundamental Representations that are made as of a specified date, which, for the avoidance of doubt, shall not include the reference to “as of the date hereof” in the first sentence of Article III, need be true and correct in all material respects only as of such date;
(b) Sellers the representations and warranties set forth in Section 3.4 shall have performed be true and complied correct in all material respects as of the Closing Date with respect to each parcel of the Acquired Real Property, provided that in the event the foregoing condition is not satisfied as of the Closing Date with respect to any individual parcel of Acquired Real Property, Purchaser’s sole recourse shall be, at Purchaser’s option, to exclude such individual parcel of Acquired Real Property from the Acquired Assets and proceed with the covenants and agreements contained Closing with respect to any other parcels of Acquired Real Property included in this Agreement which are required the Acquired Assets; provided further that (Y) prior to excluding any such parcel, Purchaser shall notify Sellers of the failure of the foregoing condition to be performed satisfied, together with Purchaser’s basis therefor and complied supporting evidence thereof, and provide Sellers with by Sellers on reasonable opportunity to cure such failure and (Z) in the event that any individual parcel or prior parcels of Acquired Real Property are excluded from the Acquired Assets pursuant to the Closing Dateimmediately preceding proviso, the Purchase Price shall be reduced by an amount equal to:
(i) if any individual parcel or parcels of Acquired Real Property are subject to one or more Qualified Bids (as defined in the Bidding Procedures Order and as may be improved upon at the Auction), the greater of (A) the value of the highest Qualified Bid in the Auction pertaining to such parcel or parcels and (B) the highest value allocated to such parcel or parcels in connection with a Qualified Bid in the Auction for a package of Acquired Real Property that includes such parcel or parcels;
(ii) if (i) is not applicable, but the Sellers otherwise have a binding offer or Contract for such parcel or parcels, the value in such binding offer or Contract;
(iii) if neither (i) nor (ii) is applicable, and solely for the purposes of this proviso and the proviso to Section 8.1(e), that portion of the Purchase Price equal to the product of the percentage set forth for such parcel or parcels on Schedule 7.2(b)(iii) multiplied by the total Purchase Price (the “Pro Rated Amount”); or
(iv) as may otherwise be mutually agreed upon in writing between the Parties;
(c) Purchaser Sellers shall not have received breached in a certificate signed manner that is material with respect to the Transactions, taken as a whole, the covenants required to be performed or complied with by an executive officer of Sellers stating that the conditions specified in Section 7.2(a) and 7.2(b) have been satisfiedunder this Agreement on or prior to Closing;
(d) Sellers Purchaser shall have deliveredreceived on and as of the Closing Date a certificate of an authorized officer of Sellers confirming that the conditions set forth Section 2.4 have been satisfied; and
(e) As of the Closing Date, no right of first refusal relating to any individual parcel or caused parcels of Acquired Real Property shall have been exercised, and the deadline to exercise any such right of first refusal shall have expired. In the event that the foregoing condition is not satisfied as of the Closing Date, Purchaser may elect, in its sole and absolute discretion, to exclude such individual parcel or parcels of Acquired Real Property from the Acquired Assets and proceed with the Closing, with the Purchase Price to be delivered, reduced by an amount determined pursuant to Purchaser all of the items methodology set forth in Section 2.4;
(e7.2(b) Purchaser shall have entered into a lease for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”);
(f) since the date hereof, there shall not have occurred and be continuing any Material Adverse Effect; and
(g) the Bankruptcy Court shall have approved and authorized an Order, which may be the Sale Order, permitting and authorizing the Designation Rights Period as set forth in Section 1.5(b).
Appears in 1 contract
Samples: Asset Purchase Agreement
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion)fulfillment, on or prior to the Closing Date, of each of the following conditions, any of which may be waived in writing by Purchaser, in its sole discretion:
(a) Sellers shall have delivered to Purchaser (i) a certified copy of the Sale Order (which shall contain the terms described in Section 7.3) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.2(d));
(b) the representations and warranties made by Sellers in Article III (this Agreement or in each case, other than the Fundamental Representations) any Ancillary Document shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after giving effect to any such qualification), in each case, as of the Closing Agreement Date as though made on and as of the Closing Date, except with the same force and effect as though all such representations and warranties had been made as of the Closing Date (A) that the other than representations and warranties that are made by their terms address matters only as of a another specified date need date, which shall be so true and correct only as of such date and (B) to the extent the failure of such representations and warranties to be true and correct as of the Closing Date or such other specified date, as applicable, has not had a Material Adverse Effect (provided that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.5(a), Section 3.15 and Section 3.16 (collectively, the “Fundamental Representations”) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except that such Fundamental Representations that are made as of a specified date need be true and correct in all respects only as of such date;
(bc) Sellers shall have performed and complied in all material respects with the covenants all obligations and agreements contained required in this Agreement which are required to be performed and or complied with by Sellers them on or prior to the Closing Date;
(cd) Purchaser shall have received a certificate signed by an executive officer each consent, approval, assignment or waiver of Sellers stating that the conditions specified any third party identified on Schedule 9.3(d) shall, in Section 7.2(a) and 7.2(beach case, (i) have been satisfiedobtained and delivered to Purchaser, (ii) be in form and substance reasonably satisfactory to Purchaser, (iii) not be subject to the satisfaction of any condition that has not been satisfied or waived and (iv) be in full force and effect;
(de) Sellers shall have delivered, or caused to be delivered, to Purchaser Purchaser, all of the items set forth in Section 2.4;
(e) Purchaser shall have entered into a lease for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”)3.2;
(f) any Permits necessary for the Company to perform its obligations under this Agreement and to consummate the transactions contemplated herein and necessary to operate the Business shall have been transferred to Purchaser (to the extent transferrable) or obtained on behalf of Purchaser;
(g) all consents, approvals and actions of, and filings with any Governmental Body necessary to permit the Company to perform their obligations under this Agreement and to consummate the transactions contemplated herein shall have been duly obtained, made or given;
(h) the Company CBAs shall have been modified, amended or supplemented in form and substance satisfactory to Purchaser, in its sole discretion; provided, however, that Purchaser shall not be permitted to terminate this Agreement pursuant to Section 3.4 as a result of failure to modified, amended or supplemented the Company CBAs in form and substance satisfactory to Purchaser, in its sole discretion;
(i) Sellers shall have complied with the sale process set forth in the Bidding Procedures Order; and
(j) since the date hereofAgreement Date, there shall not have occurred and be continuing any been a Material Adverse Effect; and
(g) the Bankruptcy Court shall have approved and authorized an Order, which may be the Sale Order, permitting and authorizing the Designation Rights Period as set forth in Section 1.5(b).
Appears in 1 contract
Samples: Asset Purchase Agreement (Paperweight Development Corp)
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion)fulfillment, on or prior to the Closing Date, of each of the following conditions, any of which may be waived in writing by Purchaser in its sole discretion:
(a) Sellers shall have (i) obtained entry of the Sale Order (which shall contain the terms described in Section 7.3, reasonably reflect the terms set forth in this Agreement, and be in a form reasonably acceptable to Purchaser) and (ii) provided to Purchaser copies of all affidavits of service of the Sale and Bidding Procedures Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.2(d));
(b) the representations and warranties made by Sellers in Article III (this Agreement or in each case, other than the Fundamental Representations) any Ancillary Document shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after giving effect to any such qualification), in each case as of the Closing Agreement Date as though made on and as of the Closing Date, except with the same force and effect as though all such representations and warranties had been made as of the Closing Date (A) that the other than representations and warranties that are made by their terms address matters only as of a another specified date need date, which shall be so true and correct only as of such date and (B) to the extent the failure of such representations and warranties to be true and correct as of the Closing Date or such other specified date, as applicable, has not had a Material Adverse Effect (provided that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.5(a), Section 3.15 and Section 3.16 (collectively, the “Fundamental Representations”) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except that such Fundamental Representations that are made as of a specified date need be true and correct in all respects only as of such date;
(bc) Sellers shall have performed and complied in all material respects with the covenants all obligations and agreements contained required in this Agreement which are required to be performed and or complied with by Sellers it on or prior to the Closing Date;
(c) Purchaser shall have received a certificate signed by an executive officer of Sellers stating that the conditions specified in Section 7.2(a) and 7.2(b) have been satisfied;
(d) Sellers shall have delivered, or caused to be delivered, to Purchaser Purchaser, all of the items set forth in Section 2.43.2;
(e) Sellers shall have complied with the sale process deadlines set forth in the Bidding Procedures Order; and
(f) Sellers shall have delivered such other documents, agreements and instruments as may be required or reasonably requested by Purchaser as a result of any Updating Information; and
(g) Purchaser shall have received binding commitments from certain key employees of Sellers, as determined by Purchaser, to be employed by Purchaser subsequent to Closing, on terms and conditions reasonably acceptable to Sellers; and
(h) Purchaser shall have entered into a lease rail services agreement with the Canada Pacific Railway for servicing the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”);Terminal prior to Closing.
(fi) since the date hereof, there shall not have occurred and be continuing any Material Adverse Effect; and
(g) the Bankruptcy Court Purchaser shall have approved received a binding commitment from Unimin Corporation to thruput frac sand at the Terminal on terms and authorized conditions that are materially and substantially similar to those that are provided under the Terminal Operating Contract by and between Seller and Unimin Corporation dated on or about July 31, 2013, or have received an Order, which may be the Sale Order, permitting and authorizing the Designation Rights Period as set forth in Section 1.5(b)assignment of said Terminal Operating Contract.
Appears in 1 contract
Samples: Asset Purchase Agreement (Dakota Plains Holdings, Inc.)
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement Closing are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion), on or prior to the Closing Date, of each of the following conditions:
(a) (i) the representations and warranties made by Sellers in Article III (in each case, other than the Fundamental RepresentationsRepresentations and other than the representations and warranties set forth in Section 3.4) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except (A) that the representations and warranties that are made as of a specified date need be true and correct in all respects only as of such date and (B) to the extent the failure of such representations and warranties to be true and correct as of the Closing Date or such other specified date, as applicable, dates has not had a Material Adverse Effect (provided that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.5(a), Section 3.15 3.2 and Section 3.16 3.8 (collectively, the “Fundamental Representations”) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except that such Fundamental Representations that are made as of a specified date need be true and correct in all material respects only as of such date;
(b) Sellers the representations and warranties set forth in Section 3.4 shall have performed be true and complied correct in all material respects as of the Closing Date with respect to each parcel of the Acquired Real Property, provided that in the event the foregoing condition is not satisfied as of the Closing Date with respect to any individual parcel of Acquired Real Property, Purchaser’s sole recourse shall be, at Purchaser’s option, to exclude such individual parcel of Acquired Real Property from the Acquired Assets and proceed with the covenants and agreements contained Closing with respect to any other parcels of Acquired Real Property included in this Agreement which are required the Acquired Assets; provided, further, that (Y) prior to excluding any such parcel, Purchaser shall notify Sellers of the failure of the foregoing condition to be performed satisfied, together with Purchaser’s basis therefor and complied supporting evidence thereof, and provide Sellers with by Sellers on reasonable opportunity to cure such failure and (Z) in the event that any individual parcel or prior parcels of Acquired Real Property are excluded from the Acquired Assets pursuant to the Closing Dateimmediately preceding proviso, the Purchase Price shall be reduced by an amount equal to:
(i) solely for the purposes of this proviso and the proviso to Section 8.1(e), that portion of the Purchase Price equal to the product of the percentage set forth for such parcel or parcels on the column titled “% of Total” on Schedule 7.2(b)(i) multiplied by the total Purchase Price (the “Pro Rated Amount”); or
(ii) as may otherwise be mutually agreed upon in writing between the Parties;
(c) Sellers shall not have breached in a manner that is material with respect to the Transactions, taken as a whole, the covenants required to be performed or complied with by Sellers under this Agreement on or prior to Closing; and
(d) Purchaser shall have received on and as of the Closing Date a certificate signed by of an executive authorized officer of Sellers stating confirming that the conditions specified in set forth Section 7.2(a) and 7.2(b) 2.4 have been satisfied;.
(de) Sellers As of the Closing Date, no right of first refusal relating to any individual parcel or parcels of Acquired Real Property shall have deliveredbeen exercised, and the deadline to exercise any such right of first refusal shall have expired. In the event that the foregoing condition is not satisfied as of the Closing Date, Purchaser may elect, in its sole and absolute discretion, to exclude such individual parcel or caused parcels of Acquired Real Property from the Acquired Assets and proceed with the Closing, with the Purchase Price to be delivered, reduced by an amount determined pursuant to Purchaser all of the items methodology set forth in Section 2.4;
(e7.2(b) Purchaser shall have entered into a lease for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”);
(f) since the date hereof, there shall not have occurred and be continuing any Material Adverse Effect; and
(g) the Bankruptcy Court shall have approved and authorized an Order, which may be the Sale Order, permitting and authorizing the Designation Rights Period as set forth in Section 1.5(b).
Appears in 1 contract
Samples: Asset Purchase Agreement (XPO, Inc.)
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion), on or prior to the Closing Date, of each of the following conditions:
(a) Sellers shall have delivered to Purchaser a certified copy of the Sale Order;
(ib) the representations and warranties made by Sellers in Article III (in each case, other than the Fundamental Representations) shall be true and correct in all material respects as of the Closing Date (disregarding all qualifications or limitations as to “materiality” or “Material Adverse Effect” (other than the use of “Material Adverse Effect” in Section 3.14(b) therein) and words of similar import set forth therein), as though such representations and warranties had been made on and as of the Closing Date, Date (except (A) that the representations and warranties that are made as of a specified date need be true and correct only as of such date and (B) to the extent date), except where the failure of such representations and or warranties to be so true and correct as of the Closing Date or such other specified date, as applicable, has not had had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (Effect; provided that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section (x) Sections 3.1, Section 3.2, Section 3.5(a), Section 3.15 3.4 and Section 3.16 (collectively, the “Fundamental Representations”) shall 3.11 will be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Daterespects, except that such Fundamental Representations that are made as of a specified date need be true and correct in all respects only as of such datefor de minimis matters;
(bc) Sellers shall have performed and complied or caused to be performed, in all material respects with respects, all of the obligations and covenants and agreements contained in required by this Agreement which are required to be performed and complied with by Sellers on or prior to by the Closing Date;
(c) Purchaser shall have received a certificate signed by an executive officer of Sellers stating that the conditions specified in Section 7.2(a) and 7.2(b) have been satisfiedClosing;
(d) since the date hereof, no Material Adverse Effect shall have occurred;
(e) the e-commerce going-out-of-business sales shall have been completed; and
(f) Sellers shall have delivered, or caused to be delivered, to Purchaser all of the items set forth in Section 2.4;
(e) Purchaser shall have entered into a lease for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”);
(f) since the date hereof, there shall not have occurred and be continuing any Material Adverse Effect; and
(g) the Bankruptcy Court shall have approved and authorized an Order, which may be the Sale Order, permitting and authorizing the Designation Rights Period as set forth in Section 1.5(b).
Appears in 1 contract
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion), on or prior to the Closing Date, of each of the following conditions:
(a) (i) : Seller shall have delivered to Purchaser a certified copy of the Sale Order; the representations and warranties made by Sellers Seller in Article III (in each case, other than the Fundamental Representations) shall be true and correct in all material respects as of the Closing Date (disregarding all qualifications or limitations as to “materiality” or “Material Adverse Effect” (other than the use of “Material Adverse Effect” in Section 3.5 which shall remain as written and shall not be subject to a further materiality qualifier) and words of similar import set forth therein), as though such representations and warranties had been made on and as of the Closing Date, Date (except (A) that the representations and warranties that are made as of a specified date need be true and correct only as of such date and (B) to the extent the failure of such representations and warranties date); Seller shall have performed or caused to be true and correct as of the Closing Date or such other specified dateperformed, as applicable, has not had a Material Adverse Effect (provided that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.5(a), Section 3.15 and Section 3.16 (collectively, the “Fundamental Representations”) shall be true and correct in all material respects as respects, all of the Closing Date as though made on obligations and as of the Closing Date, except that such Fundamental Representations that are made as of a specified date need be true and correct in all respects only as of such date;
(b) Sellers shall have performed and complied in all material respects with the covenants and agreements contained in required by this Agreement which are required to be performed by Seller by the Closing; and complied with by Sellers on or prior to the Closing Date;
(c) Purchaser shall have received a certificate signed by an executive officer of Sellers stating that the conditions specified in Section 7.2(a) and 7.2(b) have been satisfied;
(d) Sellers Seller shall have delivered, or caused to be delivered, to Purchaser all of the items set forth in Section 2.4;
(e) Purchaser shall have entered into a lease for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”);
(f) since the date hereof, there shall not have occurred and be continuing any Material Adverse Effect; and
(g) the Bankruptcy Court shall have approved and authorized an Order, which may be the Sale Order, permitting and authorizing the Designation Rights Period as set forth in Section 1.5(b).
Appears in 1 contract
Samples: Asset Purchase Agreement
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement Closing are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion), on or prior to at the Closing DateClosing, of each of the following conditions:
(a) (i) the representations and warranties made by Sellers in Article III (in each case, other than the Fundamental Representations) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except (A) that the representations and warranties that are made as of a specified date need be true and correct only as of such date and (B) to the extent where the failure of such representations and warranties in clause (i) to be true and correct as of correct, individually or in the Closing Date or aggregate with other such other specified date, as applicablefailures, has not had had, and would not reasonably be expected to have, a Material Adverse Effect (provided that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.13.1(a), Section 3.1(b), Section 3.2, Section 3.5(a3.4, Section 3.5(e), Section 3.15 3.5(f), the first sentence of Section 3.6(a), Section 3.6(b) and Section 3.16 3.20 (collectively, the “Fundamental Representations”) shall be true and correct in all material non-de minimis respects as of the Closing Date as though made on and as of the Closing Date, except that such Fundamental Representations that are made as of a specified date need be true and correct in all non-de minimis respects only as of such date, provided, however, that for the purposes of determining the accuracy of representations and warranties referred to in clause (i) for purposes of this condition, all qualification as to “materiality” and “Material Adverse Effect” or any other similar qualification contained in such representations and warranties shall be disregarded (other than the word “Material” when used in the instances of the defined term “Material Contract”);
(b) Sellers shall have performed and complied with their covenants and agreements hereunder to the extent required to be performed prior to the Closing in all material respects with (including the covenants and agreements contained in this Agreement which are required to be performed and complied with by Sellers on or prior to the Closing DateMilestones);
(c) Purchaser Sellers shall have received caused the documents and instruments required by Section 2.4 to be delivered by Purchaser (or tendered subject only to Closing);
(d) there shall not have occurred a Material Adverse Effect that is continuing;
(e) Sellers and their Subsidiaries shall have completed the Corporate Reorganization Steps;
(f) Sellers shall have delivered a certificate signed by from an executive authorized officer of Sellers stating to the effect that each of the conditions specified in Section 7.2(a), Section 7.2(b), and Section 7.2(d) and 7.2(b) have has been satisfied;
(dg) Sellers shall have delivered, or caused to be delivered, to Purchaser all of the items consents set forth in Section 2.4;
(e) Purchaser shall have entered into a lease for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”Schedule 7.2(g);
(fh) since Sellers shall have provided the date hereofPurchaser with evidence of termination of all intercompany intellectual property licenses or royalty agreements identified by the Purchaser for termination set forth in Schedule 7.2(h); provided, there that Sellers and Purchaser may mutually agree to amend Schedule 7.2(h) at any time prior to Closing;
(i) Sellers shall have provided Purchaser with evidence of written notices of termination having been sent to the applicable counterparties to the Terminated Agreements in accordance with Section 6.8(d); provided that Sellers and Purchaser may mutually agree to amend Schedule 6.8(d) at any time prior to Closing;
(j) Sellers shall have paid all outstanding Bridge Loan Secured Obligations in full in cash from the Cash Consideration;
(k) the estimated Cure Costs on the Closing Date shall not unreasonably exceed the Cure Cap;
(l) Tupperware Products A.G. shall have occurred been dismissed from the Bankruptcy Cases;
(m) Sellers shall have provided Purchaser with certified true, correct and be continuing any Material Adverse Effectcomplete, duly executed scanned copy of Form MGT-4 (along with all necessary attachments) filed by Tupperware Home Parties, LLC with the Indian Acquired Entity, declaring the change in the beneficial interest of the Equity Interest held by Tupperware Home Parties, LLC in the Indian Acquired Entity to Purchaser;
(n) Sellers shall have provided Purchaser with certified true, correct and complete, duly executed scanned copy of Form MGT-6 (along with all necessary attachments) filed by the Indian Acquired Entity with the (Indian) Registrar of Companies, taking note of change in beneficial ownership of the Equity Interest held by Tupperware Home Parties, LLC in the Indian Acquired Entity to Purchaser;
(o) Sellers shall have provided Purchaser with the updated and certified true copy of the register of members, reflecting Purchaser as the beneficial owner of the Equity Interest held by Tupperware Home Parties, LLC in the Indian Acquired Entity; and
(gp) the Bankruptcy Court Sellers shall have approved provided the Purchaser with the scanned copy of the duly executed power of attorney in favor of the persons to be indicated in writing by Purchaser to implement the process of dematerialization of the Equity Interests held by Tupperware Home Parties, LLC in the Indian Acquired Entity and authorized an Orderfor implementing the transfer and delivery of the Equity Interest held by Tupperware Home Parties, which may be LLC in the Sale Order, permitting and authorizing the Designation Rights Period as set forth in Section 1.5(b)Indian Acquired Entity to Purchaser.
Appears in 1 contract
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion)fulfillment, on or prior to the Closing Date, of each of the following conditions, any of which may be waived in writing by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser (i) a certified copy of the Sale Order (which shall contain the terms described in Section 7.3) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Seller (which service shall comply with Section 7.2(d));
(b) (A) the representations and warranties made by Sellers Seller in Article III (this Agreement or in each caseany Ancillary Document, other than the Fundamental Representations) those set forth in Section 4.12 (Assets Necessary to Business), shall be true and correct in all material respects respects, in each case as of the Closing Agreement Date as though made on and as of the Closing Date, except with the same force and effect as though all such representations and warranties had been made as of the Closing Date (A) that the other than representations and warranties that are made by their terms address matters only as of a another specified date need date, which shall be so true and correct only as of such date and (B) to the extent other specified date), except where the failure of such representations and warranties to be true and correct as of would not, individually or in the Closing Date or such other specified dateaggregate, as applicable, has not had have a Material Adverse Effect (provided that for purposes of the foregoing clause (i)Effect, the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (iiB) the representations and warranties made by Seller set forth in Section 3.1, Section 3.2, Section 3.5(a4.12 (Assets Necessary to Business), Section 3.15 and Section 3.16 (collectively, the “Fundamental Representations”) shall be true and correct in all material respects respects, in each case as of the Closing Agreement Date as though made on and as of the Closing Date, except that with the same force and effect as though all such Fundamental Representations that are representations and warranties had been made as of a specified date need be true and correct in all respects only as of such datethe Closing Date;
(bc) Sellers Seller shall have performed and complied in all material respects with the covenants all obligations and agreements contained required in this Agreement which are required to be performed and or complied with by Sellers them on or prior to the Closing Date;
(c) Purchaser shall have received a certificate signed by an executive officer of Sellers stating that the conditions specified in Section 7.2(a) and 7.2(b) have been satisfied;
(d) Sellers Seller shall have delivered, or caused to be delivered, to Purchaser Purchaser, all of the items set forth in Section 2.43.2;
(e) Purchaser shall have entered into a lease for all Permits material to the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror operation of the DC) substantially in the form Business, as set forth on Exhibit D attached hereto (the “DC Lease”Schedule 9.3(e), shall have been transferred to Purchaser;
(f) since Seller shall have complied with the date hereof, sale process deadlines set forth in the Bidding Procedures Order and any Order amending such Bidding Procedures Order;
(g) there shall not have occurred and be continuing any a Material Adverse Effect; and;
(gh) the Bankruptcy Court shall have approved and authorized an Order, which may the assumption and assignment of all Contracts between Seller and/or its Subsidiaries and each Major Customer (other than Major Customers that are governmental entities);
(i) the Minimum Business Revenues shall not be less than $75 million; and
(j) the Sale Order, permitting and authorizing Closing Date Net Receivables Amount shall be equal to or greater than the Designation Rights Period as set forth in Section 1.5(b)Minimum Net Receivables Amount.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ciber Inc)
Conditions Precedent to the Obligations of Purchaser. The obligations obligation of Purchaser to consummate effect the transactions contemplated by this Agreement are shall be subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion), on at or prior to the Closing Date, of each of the following conditionsadditional conditions precedent:
(a) (i) the The representations and warranties made by Sellers of the Seller Parties contained in Article III (in each case, other than the Fundamental Representations) this Agreement shall be true and correct in all material respects at and as of the Closing Date as though made on and as of the Closing Date(without giving any effect to any materiality or Material Adverse Effect qualifications contained therein), except (A) that the for changes permitted by this Agreement and except for those representations and warranties that are made address matters as of a specified date need particular dates which shall be true and correct only at and as of such date and particular dates (B) without giving any effect to the extent any materiality or Material Adverse Effect qualifications contained therein), except where the failure of such representations and warranties to be so true and correct as of the Closing Date or such other specified date, as applicable, has would not had have a Material Adverse Effect (provided that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.5(a), Section 3.15 and Section 3.16 (collectively, the “Fundamental Representations”) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except that such Fundamental Representations that are made as of a specified date need be true and correct in all respects only as of such dateEffect;
(b) Sellers shall have performed and complied in all material respects with All of the covenants and agreements contained in this Agreement which are required to be performed and complied with or performed by Sellers the Seller Parties on or prior to the Closing DateDate shall have been complied with or performed in all material respects;
(c) Purchaser shall have received a certificate signed by an executive officer each of Sellers stating that the conditions specified certificates, agreements, instruments and other documents set forth in Section 7.2(a) and 7.2(b) have been satisfied4.2 hereof;
(d) Sellers Except as set forth on Schedule 3.2(d), all Liens (except Permitted Liens) on the stock or assets of the Foreign Subsidiaries shall have deliveredbeen discharged (including for this purpose any Liens of the Bank Agent) by each Foreign Subsidiary, as appropriate, or caused by the Person in whose favor such Liens exist, at no expense to Purchaser; provided that, for purposes of this condition, Liens the existence of which would not have a Material Adverse Effect shall be delivered, to Purchaser all of the items set forth in Section 2.4;disregarded; and
(e) Purchaser shall have entered into a lease for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”);
(f) since Since the date hereof, there shall not have occurred and be continuing any no Material Adverse Effect; and
(g) the Bankruptcy Court Effect shall have approved and authorized an Orderoccurred. If the Closing occurs, which may be the Sale Order, permitting and authorizing the Designation Rights Period as all closing conditions set forth in this Section 1.5(b)3.2 which have not been fully satisfied as of the Closing shall be deemed to have been fully waived by Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Nco Group Inc)
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion)fulfillment, on or prior to the Closing Date, of each of the following conditions, any of which may be waived in writing by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser (i) a certified copy of the Sale Order (which shall contain the terms described in Section 7.2) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Seller (which service shall comply with Section 7.1(c));
(A) the representations and warranties made by Sellers Seller in Article III (this Agreement or in each caseany Ancillary Document, other than the Fundamental Representations) those set forth in Section 4.12 (Assets Necessary to Business), shall be true and correct in all material respects respects, in each case as of the Closing Agreement Date as though made on and as of the Closing Date, except with the same force and effect as though all such representations and warranties had been made as of the Closing Date (A) that the other than representations and warranties that are made by their terms address matters only as of a another specified date need date, which shall be so true and correct only as of such date and (B) to the extent other specified date), except where the failure of such representations and warranties to be true and correct as of would not, individually or in the Closing Date or such other specified dateaggregate, as applicable, has not had have a Material Adverse Effect (provided that for purposes of the foregoing clause (i)Effect, the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (iiB) the representations and warranties made by Seller set forth in Section 3.1, Section 3.2, Section 3.5(a4.12 (Assets Necessary to Business), Section 3.15 and Section 3.16 (collectively, the “Fundamental Representations”) shall be true and correct in all material respects respects, in each case as of the Closing Agreement Date as though made on and as of the Closing Date, except that with the same force and effect as though all such Fundamental Representations that are representations and warranties had been made as of a specified date need be true and correct in all respects only as of such datethe Closing Date;
(bc) Sellers Seller shall have performed and complied in all material respects with the covenants all obligations and agreements contained required in this Agreement which are required to be performed and or complied with by Sellers them on or prior to the Closing Date;
(c) Purchaser shall have received a certificate signed by an executive officer of Sellers stating that the conditions specified in Section 7.2(a) and 7.2(b) have been satisfied;
(d) Sellers Seller shall have delivered, or caused to be delivered, to Purchaser Purchaser, all of the items set forth in Section 2.43.2;
(e) Purchaser shall have entered into a lease for all Permits material to the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror operation of the DC) substantially in the form Business, as set forth on Exhibit D attached hereto (the “DC Lease”Schedule 9.3(e), shall have been transferred to Purchaser;
(f) since Seller shall have complied with the date hereof, sale process deadlines set forth in the Bidding Procedures Order and any Order amending such Bidding Procedures Order;
(g) there shall not have occurred and be continuing any a Material Adverse Effect; and;
(gh) the Bankruptcy Court shall have approved and authorized an Order, which may the assumption and assignment of all Contracts between Seller and/or its Subsidiaries and each Major Customer (other than Major Customers that are governmental entities);
(i) the Minimum Business Revenues shall not be less than $75 million; and
(j) the Sale Order, permitting and authorizing Closing Date Net Receivables Amount shall be equal to or greater than the Designation Rights Period as set forth in Section 1.5(b)Minimum Net Receivables Amount.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ciber Inc)
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion)fulfillment, on or prior to the Closing Date, of each of the following conditions, any of which may be waived in writing by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser (i) a certified copy of the Sale Order (which shall contain the terms described in Section 6.2) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Seller (which service shall comply with Section 6.1);
(b) Seller shall have delivered to Purchaser a certified copy of the Section 365(n) Order (which shall contain the terms described in Section 6.3) and (ii) copies of all affidavits of service of the Section 365(n) Motion or notice of such motion filed by or on behalf of Seller (which service shall comply with Section 6.1);
(c) the representations and warranties made by Sellers Seller in Article III (this Agreement or in each case, other than the Fundamental Representations) any Ancillary Document shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after giving effect to any such qualification), in each case as of the Closing Agreement Date as though made on and as of the Closing Date, except with the same force and effect as though all such representations and warranties had been made as of the Closing Date (A) that the other than representations and warranties that are made by their terms address matters only as of a another specified date need date, which shall be so true and correct only as of such date and (B) to the extent the failure of such representations and warranties to be true and correct as of the Closing Date or such other specified date, as applicable, has not had a Material Adverse Effect (provided that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.5(a), Section 3.15 and Section 3.16 (collectively, the “Fundamental Representations”) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except that such Fundamental Representations that are made as of a specified date need be true and correct in all respects only as of such date;
(bd) Sellers Seller shall have performed and complied in all material respects with the covenants all obligations and agreements contained required in this Agreement which are required to be performed and or complied with by Sellers them on or prior to the Closing Date;
(ce) Purchaser shall have received a certificate signed by an executive officer of Sellers stating that the conditions specified in Section 7.2(a) and 7.2(b) have been satisfied;
(d) Sellers Seller shall have delivered, or caused to be delivered, to Purchaser all of the items set forth in Section 2.4;
(e) Purchaser shall have entered into a lease for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”)3.2;
(f) all of the Material Governmental Authorizations shall be in full force and effect as necessary for Purchaser to continue to conduct the Business in the Ordinary Course of Business immediately after the Closing Date; and
(g) since the date hereofAgreement Date, there shall not have occurred and be continuing any a Material Adverse Effect; and
(g) the Bankruptcy Court shall have approved and authorized an Order, which may be the Sale Order, permitting and authorizing the Designation Rights Period as set forth in Section 1.5(b).
Appears in 1 contract
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion), on or prior to the Closing Date, of each of the following conditions:
(a) (i) the representations and warranties made by Sellers in Article III (in each case, other than the Seller Sufficiency Representations and the Seller Fundamental Representations) shall be true and correct correct, in each case as of the date hereof and the Closing Date with the same force and effect as though all material respects such representations and warranties had been made as of the Closing Date as though made on and as of the Closing Date, except (A) that the other than representations and warranties that are made by their terms address matters only as of a another specified date need date, which shall be so true and correct only as of such date and (B) to the extent other specified date), except where the failure of such representations and warranties to be true and correct (without giving effect to any limitation as to “materiality”, “material adverse effect”, “Material Adverse Effect” or similar qualifiers contained therein (other than “material weaknesses” in Section 3.5(b) and the word “Material” when used in the instances of the Closing Date or such other specified datedefined terms “Material Contract”, as applicable, “Material Customer” and “Material Supplier”)) has not had had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (provided that for purposes of the foregoing clause (i)Effect, the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Sections 3.1 (other than the last sentence of Section 3.13.1(a), the last sentence of Section 3.1(b) and Section 3.1(c)), 3.2, Section 3.5(a3.3 (solely with respect to clause (i) thereof), Section 3.15 3.4 and Section 3.16 3.19 (collectively, the “Seller Fundamental Representations”) shall be true and correct in all material respects respects, other than for de minimis inaccuracies, in each case as of the date hereof and the Closing Date with the same force and effect as though all such representations and warranties had been made as of the Closing Date as though made on (other than representations and warranties that by their terms address matters only as of the Closing Dateanother specified date, except that such Fundamental Representations that are made which shall be so true and correct only as of a such other specified date need date) and (iii) the representations and warranties set forth in Section 3.7(b) (the “Seller Sufficiency Representations”) shall be true and correct in all respects only respects, in each case as of the date hereof and the Closing Date with the same force and effect as though such daterepresentations and warranties had been made as of the Closing Date;
(b) Sellers shall have performed and or complied with, or caused to be performed or complied with, in all material respects with respects, all of the obligations and covenants and agreements contained in required by this Agreement which are required to be performed and or complied with by Sellers on or prior to the Closing DateClosing;
(c) Purchaser shall have received a certificate signed by an executive officer of Sellers stating that the conditions specified in Section 7.2(a) and 7.2(b) have been satisfied;
(d) Sellers shall have delivered, or caused to be delivered, to Purchaser (i) all of the items set forth in Section 2.42.3;
(d) The Bankruptcy Court shall have entered the Sale Order and such Sale Order shall have become a Final Order;
(e) Purchaser shall each consent, approval, assignment or waiver of any Person identified on Schedule 7.2(e) shall, in each case, (i) have entered into a lease for been obtained and delivered to Purchaser, (ii) be in form and substance reasonably acceptable to Purchaser, (iii) not be subject to the DC satisfaction of any condition that has not been satisfied or waived and (with either Seller (or a Subsidiary thereof that owns the DCiv) or the acquiror of the DC) substantially be in the form set forth on Exhibit D attached hereto (the “DC Lease”)full force and effect;
(f) since Purchaser shall have obtained, or there is a reasonable expectation that Purchaser will obtain within ten (10) Business Days following the Closing (or within such time as otherwise required by applicable Law), all Permits required by Purchaser to operate the business of the Company and its Subsidiaries following the Closing consistent, in all material with respects, with the operation of such business in the Ordinary Course as of the date hereof, there shall not have occurred and be continuing any Material Adverse Effectof this Agreement; and
(g) the Bankruptcy Court no Material Adverse Effect shall have approved occurred and authorized an Order, which may then be the Sale Order, permitting and authorizing the Designation Rights Period as set forth in Section 1.5(b)continuing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Akorn Inc)
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion), on or prior to the Closing Date, of each of the following conditions:conditions:
(a) Sellers shall have delivered to Purchaser a certified copy of the Sale Order;
(ib) the representations and warranties made by Sellers in Article III (in each case, other than the Fundamental Representations) shall be be true and correct in all material respects as of the Closing Date (disregarding all qualifications or limitations as to “materiality” or “Material Adverse Effect” (other than the use of “Material Adverse Effect” in Section 3.14(b) therein) and words of similar import set forth therein), as though such representations and warranties had been made on and as of the Closing Date, Date (except (A) that the representations and warranties that are made as of a specified date need be true and correct only as of such date and (B) to the extent date), except where the failure of such representations and or warranties to be so true and correct as of the Closing Date or such other specified date, as applicable, has not had had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (Effect; provided that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section (x) Sections 3.1, Section 3.2, Section 3.5(a), Section 3.15 3.4 and Section 3.16 (collectively, the “Fundamental Representations”) shall 3.11 will be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Daterespects, except that such Fundamental Representations that are made as of a specified date need be true and correct in all respects only as of such datefor de minimis matters;
(bc) Sellers shall have performed and complied or caused to be performed, in all material respects with respects, all of the obligations and covenants and agreements contained in required by this Agreement which are required to be performed and complied with by Sellers on or prior to by the Closing DateClosing;
(d) since the date hereof, no Material Adverse Effect shall have occurred;
(ce) Purchaser the e-commerce going-out-of-business sales shall have received a certificate signed by an executive officer of Sellers stating that the conditions specified in Section 7.2(a) and 7.2(b) have been satisfied;completed; and
(df) Sellers shall have delivered, or caused to be delivered, to Purchaser all of the items set forth in Section 2.4;
(e) Purchaser shall have entered into a lease for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”);
(f) since the date hereof, there shall not have occurred and be continuing any Material Adverse Effect; and
(g) the Bankruptcy Court shall have approved and authorized an Order, which may be the Sale Order, permitting and authorizing the Designation Rights Period as set forth in Section 1.5(b).
Appears in 1 contract
Samples: Asset Purchase Agreement
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion)fulfillment, on or prior to the Closing Date, of each of the following conditions:
, any of which may be waived in writing by Purchaser, in its sole discretion: (a) Sellers shall have delivered to Purchaser (i) a copy of the Sale Order (which shall contain the terms described in Section 8.3) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 8.2(d)); (b) Other than the representations and warranties of Sellers contained in Sections 5.1, 5.2, 5.3(a) and (b), 5.4, 5.7 and 5.24, the representations and warranties made by Sellers in Article III (this Agreement or in each case, other than the Fundamental Representations) any Ancillary Document shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after giving effect to any such qualification), in each case, as of the Closing Agreement Date as though made on and as of the Closing Date, except with the same force and effect as though all such representations and warranties had been made as of the Closing Date (A) that the other than representations and warranties that are made by their terms address matters only as of a another specified date need date, which shall be so true and correct only as of such date and (B) to the extent other specified date), except where the failure of such representations and or warranties to be so true and correct as of the Closing Date or such other specified date, as applicable, has not had had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (provided that for purposes of on Purchaser’s ability to consummate the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such transactions contemplated hereby. The representations and warranties shall not be given effect (other than those of Sellers contained in the second sentence of Section 3.4)Sections 5.1, 5.2, 5.3(a) and (ii) the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.5(ab), Section 3.15 5.4, 5.7 and Section 3.16 (collectively, the “Fundamental Representations”) 5.24 shall be true and correct in all material respects on and as of the Closing Date as though made date hereof and on and as of the Closing Date, Date with the same effect as though made at and as of such date (except those representations and warranties that such Fundamental Representations that are made address matters only as of a specified date, the accuracy of which shall be determined as of that specified date need be true and correct in all respects only as of such date;
respects); (bc) Sellers shall have performed and complied in all material respects with the covenants all obligations and agreements contained required in this Agreement which are required to be performed and or complied with by Sellers them on or prior to the Closing Date;
; (cd) Purchaser shall have received a certificate signed by an executive officer each consent, approval, notice, assignment or waiver required of Sellers stating that the conditions specified any third party shall, in Section 7.2(a) and 7.2(beach case, (i) have been satisfied;
obtained and delivered to Purchaser, (dii) be in form and substance reasonably satisfactory to Purchaser, (iii) not be subject to the satisfaction of any condition that has not been satisfied or waived and (iv) be in full force and effect; (e) Sellers shall have delivered, or caused to be delivered, to Purchaser Purchaser, all of the items set forth in Section 2.4;
(e) Purchaser shall have entered into a lease for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”);
4.2; (f) since Sellers shall have complied with the date hereof, there shall not have occurred and be continuing any Material Adverse Effectsale process set forth in the Bidding Procedures Order; and
(g) the Bankruptcy Court Material Customers identified by Purchaser on the Disclosure Schedule Delivery Date shall have approved provided confirmation or other assurances reasonably satisfactory to Purchaser that such customers will continue their relationships with the Business in the ordinary course; and authorized an Order, which may be the Sale Order, permitting and authorizing the Designation Rights Period as set forth in Section 1.5(b).55
Appears in 1 contract
Conditions Precedent to the Obligations of Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement are and the Ancillary Agreements is expressly subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion)satisfaction, on or prior to the Closing Date, of each all of the following conditions:conditions (compliance with any of which or the occurrence of any of which may be waived in whole or in part by the Purchaser in writing):
(a) (i) Each representation and warranty of the representations Company and warranties made by the Sellers contained in Article III (in each case, other than this Agreement and the Fundamental Representations) Ancillary Agreements shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date, Date (except (A) that the representations and warranties that are made by their terms speak as of a specified the date need be true and correct only as of such this Agreement or some other date and (B) to the extent the failure of such representations and warranties to shall be true and correct as of the Closing Date or such other specified date, as applicable, has not had a Material Adverse Effect (provided and except that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.14.1, Section 3.24.2, Section 3.5(a)4.4, Section 3.15 and Section 3.16 4.5 shall be true and correct in all respects at and as of the Closing Date); provided, however, to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect,” such representations and warranties (collectively, the “Fundamental Representations”as so written) shall be true and correct in all material respects at and as of the Closing Date as though made on (except that representations and warranties that by their terms speak as of the Closing Date, except that such Fundamental Representations that are made as date of a specified this Agreement or some other date need shall be true and correct in all respects only as of such date;).
(b) The Company, the Sellers and the Owners shall have performed and complied with in all material respects with the all covenants and agreements contained in required by this Agreement which are required and the Ancillary Agreements to be performed and complied with by Sellers on or prior to the Closing Date;. The Company shall have delivered to the Purchaser a certificate dated as of the Closing Date and signed by an officer of the Company certifying compliance with Section 7.1(a), this Section 7.1(b), and Section 7.1(g) (the “Company Compliance Certificate”).
(c) All documents and instruments executed and delivered and all actions taken in connection with this Agreement and the transactions contemplated by this Agreement and the Ancillary Agreements shall be reasonably satisfactory to the Purchaser shall have received a certificate signed by an executive officer of Sellers stating that the conditions specified and its counsel, including those deliverables set forth in Section 7.2(a) and 7.2(b) have been satisfied;3.2(a).
(d) Sellers All required HSR filings shall have delivered, been made and either (i) the HSR waiting period shall have expired or caused to be delivered, to Purchaser all of the items set forth in Section 2.4;(ii) early termination granted.
(e) Purchaser No Proceeding shall have entered into a lease for the DC (with either Seller (been instituted before any court or a Subsidiary thereof that owns the DC) Governmental Authority to restrain or prohibit, or to obtain damages in respect of, this Agreement or the acquiror consummation of the DC) substantially in transactions contemplated by this Agreement and the form set forth on Exhibit D attached hereto (the “DC Lease”);Ancillary Agreements.
(f) since No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits consummation of any of the date hereof, there shall not have occurred transactions contemplated by this Agreement and be continuing any Material Adverse Effect; andthe Ancillary Agreements.
(g) the Bankruptcy Court No Event shall have approved occurred since the date of this Agreement that, individually or in the aggregate with any other Event, has had or would reasonably be expected to have a Material Adverse Effect.
(h) No flocks or barns (i) owned or maintained by the Company or any of its Subsidiaries, (ii) owned or maintained by Skyline Farms or Xxxxxx Farms, or (iii) otherwise located within a twenty (20) kilometer radius of any of the Owned Real Property or the Leased Real Property, shall have tested positive (or presumptive positive) for avian influenza or any variation or subtype thereof, nor shall any of such flocks or barns have been quarantined (or threatened to be quarantined) by the USDA or any other Governmental Authority.
(i) The Environmental Reports shall have been received by the Company and authorized an Order, which may shall be satisfactory to the Sale Order, permitting Purchaser.
(j) That certain Retention Agreement entered into as of the date hereof with Xxxxxxx X. Xxxxxx shall be in full force and authorizing effect as of the Designation Rights Period as set forth in Section 1.5(b)Closing Date.
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Samples: Membership Interest Purchase Agreement (Post Holdings, Inc.)
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement Closing are subject to the satisfaction (or to the extent permitted by Law, written waiver by Purchaser in its sole discretion), on or prior to at the Closing DateClosing, of each of the following conditions:
(a) the Bankruptcy Court shall have entered the Sale Order by October 31, 2024, which and shall be (i) in full force and effect, (ii) not subject to appeal, and (iii) neither modified nor vacated since the date of this Agreement;
(i) the representations and warranties made by Sellers in Article III (in each case, other than the Seller Fundamental Representations) ), disregarding for these purposes any excepting in such representations and warranties relating to materiality or a Material Adverse Effect, shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, except (A) that the for those representations and warranties that are made which address matters only as of a specified an earlier date need be in which case such representation or warranty shall have been true and correct only as of such earlier date and (B) to the extent the failure of such representations and warranties to be true and correct as of the Closing Date or such other specified date, as applicable, has dates would not had reasonably be expected to have a Material Adverse Effect (provided that for purposes of the foregoing clause (i), the qualifications as to materiality and Material Adverse Effect contained in such representations and warranties shall not be given effect (other than those contained in the second sentence of Section 3.4)) and (ii) the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.5(a3.1 (Organization and Qualification), Section 3.15 3.2 (Authorization of Agreement), Section 3.3 (Conflicts; Consents), and Section 3.16 3.14 (Brokers) (collectively, the “Seller Fundamental Representations”) shall be true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date, Date (except that such Fundamental Representations that are made for those representations and warranties which address matters only as of a specified an earlier date need be in which case such representation or warranty shall have been true and correct in all respects only as of such earlier date);
(bc) none of the Chapter 11 Cases shall have been converted to a case under Chapter 7 of the Bankruptcy Code nor shall a trustee or examiner with expanded powers have been appointed with respect to the Sellers;
(d) the Chapter 11 Cases shall not have been dismissed;
(i) the DIP Facility lenders shall have not acquired all or a material part of the Acquired Assets as a result of the exercise of remedies under the DIP Facility and (ii) the DIP Facility shall not have been terminated;
(f) Sellers shall have performed and complied in all material respects with the covenants and agreements contained in this Agreement which are required to be performed and or complied with by Sellers under this Agreement on or prior to the Closing Date prior to the Closing Date;; and
(c) Purchaser shall have received a certificate signed by an executive officer of Sellers stating that the conditions specified in Section 7.2(a) and 7.2(b) have been satisfied;
(dg) Sellers shall have delivered, or caused to be delivered, to Purchaser all of the Acquired Assets as well as those items set forth in Section 2.4;
(e) Purchaser shall have entered into a lease for the DC (with either Seller (or a Subsidiary thereof that owns the DC) or the acquiror of the DC) substantially in the form set forth on Exhibit D attached hereto (the “DC Lease”);
(f) since the date hereof, there shall not have occurred and be continuing any Material Adverse Effect; and
(g) the Bankruptcy Court shall have approved and authorized an Order, which may be the Sale Order, permitting and authorizing the Designation Rights Period as set forth in Section 1.5(b)2.3.
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