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 (LL Flooring Holdings, Inc.), Asset Purchase Agreement (F9 Investments LLC)
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 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)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 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), 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: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 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 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
