Conditions Precedent to the Obligations of Purchaser. The obligation of Purchaser to enter into and complete the Closing is subject, at its option, to the fulfillment on or prior to the Closing Date of the following conditions, the imposition of which is solely for the benefit of Purchaser, any one or more of which may be waived by Purchaser: a. The representations and warranties of the Company contained in this Agreement shall be true, correct and complete in all material respects on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date. b. The Company shall have performed in all material respects all obligations and complied with all covenants or forebearances required by this Agreement to be performed or complied with by the Company on or prior to the Closing Date. c. The Company shall have delivered a certificate to Purchaser, dated the Closing Date and signed by the President and the Secretary or Treasurer of the Company, to the effect that the applicable conditions set forth in this Section have been satisfied. d. The Company shall have delivered a certificate to Purchaser, dated the Closing Date and signed by the Secretary or an Assistant Secretary of the Company, certifying and attaching a copy of the Company's Organizational Documents as in effect as of the Closing Date. e. Purchaser shall have received an opinion of counsel to the Company, dated the Closing Date, as to such matters as Purchaser may reasonably request with respect to the transactions contemplated hereby. f. Purchaser shall have received all such certified resolutions, certificates, documents or instruments with respect to the Company as Purchaser may reasonably require to carry out the intent and purpose of this Agreement. g. No action, suit or proceeding shall have been instituted before any court, governmental or regulatory body or arbitral tribunal, or instituted or threatened by any governmental or regulatory body, which has or may have, in the opinion of Purchaser, a materially adverse effect on the assets, properties, business, operations or condition (financial or otherwise) of the Company. h. No action, suit or proceeding shall have been instituted before any court, governmental or regulatory body or arbitral tribunal, or instituted or threatened by any governmental or regulatory body, to restrain, modify or prevent the carrying out of the transactions contemplated hereby or to seek damages or a discovery order in connection with such transactions.
Appears in 6 contracts
Samples: Stock Purchase Agreement (Broadbandnow Inc), Stock Purchase Agreement (Broadbandnow Inc), Stock Purchase Agreement (Broadbandnow Inc)
Conditions Precedent to the Obligations of Purchaser. The obligations of Purchaser hereunder (including the obligation of Purchaser to enter into and complete close the Closing is subject, at its option, transactions contemplated under this Agreement) are subject to the fulfillment on or prior to the Closing Date of the following conditions, the imposition of which is solely for the benefit of Purchaser, any one or more of which may be waived by Purchaserconditions precedent:
a. 10.1 The warranties and representations and warranties of the Company contained made by Sellers in this Agreement to Purchaser shall be true, true and correct and complete in all material respects on and as of the Closing Date with the same force and effect as though if such warranties and representations had been made on and as of the Closing Date.
b. The Company , and Sellers shall have performed in all material respects all obligations and complied with all agreements, covenants or forebearances and conditions on their part required by this Agreement to be performed or complied with by the Company on or prior to the Closing Date; and at the Closing, Purchaser shall have received a certificate executed by an officer of each Seller to the foregoing effect.
c. The Company 10.2 All proceedings to be taken in connection with the consummation of the transactions contemplated by this Agreement and all documents incident thereto, shall be reasonably satisfactory in form and substance to Purchaser and its counsel, and Purchaser and its counsel shall have delivered a certificate received copies of such documents as Purchaser and its counsel may reasonably request in connection with said transactions.
10.3 Sellers shall have received all consents, waivers, permits, approvals, authorizations and orders which may be required (by law, agreement or otherwise) to Purchaser, dated be obtained prior to the Closing Date and signed by the President and the Secretary or Treasurer consummation of the Company, sale contemplated under this Agreement in order to the effect that the applicable conditions set forth in this Section have been satisfied.
d. The Company shall have delivered a certificate to Purchaser, dated the Closing Date and signed by the Secretary or an Assistant Secretary transfer all of the CompanyAssets to Purchaser at Closing, certifying and attaching a copy of the Company's Organizational Documents as such consents, waivers, permits, approvals, authorizations and orders shall be in full force and effect as of on the Closing Date.
e. Purchaser shall have received an opinion of counsel to the Company10.4 No investigation, dated the Closing Date, as to such matters as Purchaser may reasonably request with respect to the transactions contemplated hereby.
f. Purchaser shall have received all such certified resolutions, certificates, documents or instruments with respect to the Company as Purchaser may reasonably require to carry out the intent and purpose of this Agreement.
g. No action, suit or proceeding shall have been instituted before by any courtfederal, foreign or state governmental or regulatory commission, agency, body or arbitral tribunalauthority, or instituted or threatened by any governmental or regulatory body, which has or may have, in the opinion of Purchaser, a materially adverse effect on the assets, properties, business, operations or condition (financial or otherwise) of the Company.
h. No and no action, suit or proceeding by any other person, firm, corporation or entity, shall be pending on the Closing Date which challenges, or might result in a challenge to, this Agreement or the consummation of such sale, or which claims, or might give rise to a claim for, damages in a material amount as a result of the consummation of such sale.
10.5 There shall have been instituted before any courtno material adverse change in or with respect to the financial condition, governmental operations, prospects, rights, properties, assets or regulatory body liabilities of Sellers or arbitral tribunalSellers' relations with their employees, creditors, suppliers, distributors, customers, or instituted or threatened by others having business relationships with Sellers, and no state of facts shall exist which may reasonably be expected to give rise to any governmental or regulatory body, such material adverse change.
10.6 The IPO shall have been successfully completed. Purchaser shall have the right to restrain, modify or prevent the carrying out waive any of the transactions contemplated hereby or to seek damages or a discovery order in connection with such transactionsforegoing conditions precedent.
Appears in 1 contract
Samples: Asset Purchase Agreement (Prime Group Realty Trust)
Conditions Precedent to the Obligations of Purchaser. The obligation obligations of Purchaser to enter into and complete consummate the Closing is subject, at its option, transactions contemplated hereby shall be subject to the fulfillment on satisfaction at or prior to the Closing Date of all of the following conditions, the imposition of which is solely for the benefit of Purchaser, conditions precedent (any one or more all of which may be waived waived, in whole or in part, by Purchaser:Purchaser in its discretion):
a. The representations and warranties (a) No preliminary or permanent injunction or other order issued by a court of competent jurisdiction or by any other Governmental Entity, nor any Governmental Rule enacted or promulgated subsequent to the date of this Agreement, which prohibits the consummation of the Company contained in this Agreement transactions contemplated hereby shall be true, correct and complete in all material respects on and as effect.
(b) Each of the Closing Date with the same force Equipment Owners and effect as though made on and as of the Closing Date.
b. The Company License Owners shall have performed in all material respects all their respective obligations and complied with all covenants or forebearances required by pursuant to this Agreement required to be performed or complied with by the Company them on or prior to the Closing Date.
c. (c) The Company shall have delivered a certificate to Purchaser, dated the Closing Date representations and signed by the President and the Secretary or Treasurer warranties of each of the Company, to the effect that the applicable conditions set forth Equipment Owners and License Owners contained in this Section have been satisfied.
d. The Company Agreement shall have delivered a certificate to Purchaser, dated the Closing Date be true and signed by the Secretary or an Assistant Secretary of the Company, certifying correct in all respects at and attaching a copy of the Company's Organizational Documents as in effect as of the Closing DateDate as if made at and as of such time, except as affected by transactions contemplated hereby and except to the extent that any such representation or warranty is made as of a specified date (in which case such representation and warranty shall have been true and correct as of such date).
e. (d) Purchaser shall have received an opinion of counsel to the Companya certificate, dated the Closing Date, as from each of the Equipment Owners and the License Owners to such matters as the effect that the conditions precedent specified in paragraphs (b) and (c) of this Section 9.3 applicable to each of the Equipment Owners and License Owners, respectively, have been satisfied.
(e) All audits, due diligence and other investigations of each of the Equipment Owners, the License Owners, the Licenses, the Systems, and the Purchased Assets undertaken by Purchaser may reasonably request shall have been completed to the satisfaction of Purchaser in its sole and absolute discretion.
(f) There shall not have occurred any material adverse change in any of the Licenses, the Systems or the Purchased Assets.
(g) All Liens and indebtedness with respect to the transactions contemplated hereby.
f. Purchaser shall have received all such certified resolutionsLicenses, certificates, documents or instruments with respect to the Company as Purchaser may reasonably require to carry out Systems and the intent and purpose of this Agreement.
g. No action, suit or proceeding Purchased Assets shall have been instituted before released.
(h) There shall have been received all of the waivers, consents and approvals set forth on Schedule 4.14 attached hereto, without the addition of any courtcondition or requirement which could have a material adverse effect on any of the Licenses, governmental the Systems or regulatory body the Purchased Assets, would increase the cost of operation thereof or arbitral tribunal, or instituted or threatened by any governmental or regulatory body, which has or may have, in increase the opinion Purchase Price.
(i) The FCC shall have granted its consent to the assignment of the Licenses to Purchaser, without the addition of any condition or requirement which could have a materially material adverse effect on the assetsLicenses, properties, business, operations or condition (financial or otherwise) increase the cost of operation of the CompanyPurchased Assets or the Systems or increase the Purchase Price, and such grant shall have become a Final Order.
h. No action, suit or proceeding (j) The following shall have been instituted before any court, governmental or regulatory body or arbitral tribunal, or instituted or threatened by any governmental or regulatory body, delivered to restrain, modify or prevent the carrying out Purchaser:
(i) a written reaffirmation dated as of the transactions Closing Date addressed and delivered to the Purchaser by SMR Advisory for and on behalf of the Equipment Owners and License Owners confirming as of the Closing Date each of the representations, warranties and covenants of the Equipment Owners and License Owners set forth herein;
(ii) Disclosure Letter and related Schedules dated as of the Closing Date addressed and delivered to Purchaser in form and substance satisfactory to Purchaser in its sole and absolute discretion;
(iii) written evidence of action taken by all of the equity holders of each of the Equipment Owners and License Owners in favor of the transaction contemplated hereby herein , and the authority of SMR Advisory to act for and on behalf of each of such entities as to the transaction contemplated herein, in form and substance satisfactory to Purchaser in its sole and absolute discretion;
(iv) one or more bills of sale conveying to seek damages or a discovery order in connection Purchaser the Licenses, the Systems and all of the Purchased Assets, free and clear of any and all Liens;
(v) evidence of the assignment of all leases and other agreements identified on Schedule 2.4 to the Disclosure Letter;
(vi) copies of all equipment manuals and material maintenance records associated with the Purchased Assets; and
(vii) such transactions.other documents, assignments, bills of sale, instruments of conveyance, and certificates of officers as may be reasonably required by Purchaser to consummate this Agreement and the transaction contemplated herein;
Appears in 1 contract
Conditions Precedent to the Obligations of Purchaser. The obligation of Purchaser to enter into and complete the Closing is subject, at its option, to the fulfillment on or prior to the Closing Date of the following conditions, the imposition of which is solely for the benefit of Purchaser, any one or more of which may be waived by Purchaser:
a. The representations and warranties of the Company contained in this Agreement shall be true, correct and complete in all material respects on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date.
b. The Company shall have performed in all material respects all obligations and complied with all covenants or forebearances required by this Agreement to be performed or complied with by the Company on or prior to the Closing Date.
c. The Company shall have delivered a certificate to Purchaser, dated the Closing Date and signed by the President and the Secretary or Treasurer of the Company, to the effect that the applicable conditions set forth in this Section have been satisfied.
d. The Company shall have delivered a certificate to Purchaser, dated the Closing Date and signed by the Secretary or an Assistant Secretary of the Company, certifying and attaching a copy of the Company's Organizational Documents as in effect as of the Closing Date.
e. Purchaser shall have received an opinion of counsel to the Company, dated the Closing Date, as to such matters as Purchaser may reasonably request with respect to the transactions contemplated hereby.
f. Purchaser shall have received all such certified resolutions, certificates, documents or instruments with respect to the Company as Purchaser may reasonably require to carry out the intent and purpose of this Agreement.
g. No action, suit or proceeding shall have been instituted before any court, governmental or regulatory body or arbitral tribunal, or instituted or threatened by any governmental or regulatory body, which has or may have, in the opinion of Purchaser, a materially adverse effect on the assets, properties, business, operations or condition (financial or otherwise) of the Company.
h. No action, suit or proceeding shall have been instituted before any court, governmental or regulatory body or arbitral tribunal, or instituted or threatened by any governmental or regulatory body, to restrain, modify or prevent the carrying out of the transactions contemplated hereby or to seek damages or a discovery order in connection with such transactions.
i. Purchaser shall have completed its due diligence of the Company, the Company's management, the Company's internal controls and the Company's industry, with satisfactory results as determined in the sole discretion of Purchaser.
Appears in 1 contract
Conditions Precedent to the Obligations of Purchaser. The obligation of Purchaser to enter into and complete consummate the Closing is subject, at its option, will be subject to the fulfillment on satisfaction or prior to the Closing Date waiver by Purchaser of each of the following conditions, the imposition of which is solely for the benefit of Purchaser, any one or more of which may be waived by Purchaserconditions set forth below:
a. The (a) Each of the representations and warranties of the Company contained Seller in Section 3.1 of this Agreement and in any other Transaction Document shall be true, true and correct and complete in all material respects on as of the date hereof and as of the Closing Date with (other than those qualified by a reference to materiality or Material Adverse Effect, which representations and warranties shall be true and correct in all respects).
(b) All consents, approvals and filings required to be obtained or made by Seller, Manager, the same Company and any Project Company (i) for the Seller, Manager or the Company to execute, deliver and perform the Transaction Documents to which it is a party or (ii) to effect the conversions described in Section 2.4(p), including each of the consents, approvals and filings set forth on Schedule 2.4(b), shall have been obtained or made and shall be in full force and effect as though made on and as of the Closing Date.
b. The Company shall have performed in all material respects all obligations and complied with all covenants or forebearances required by this Agreement to be performed or complied with by the Company on or prior to the Closing Date.
c. The Company shall have delivered a certificate to Purchaser, dated the Closing Date and signed by the President and the Secretary or Treasurer of the Company, to the effect that the applicable conditions set forth in this Section have been satisfied.
d. The Company shall have delivered a certificate to Purchaser, dated the Closing Date and signed by the Secretary or an Assistant Secretary of the Company, certifying and attaching a copy of the Company's Organizational Documents as in effect as of the Closing Date.
e. (c) Seller shall have delivered to Purchaser one or more legal opinions of counsel to Seller, Manager and the Company, in form and substance reasonably satisfactory to Purchaser, to the effect that each of the Transaction Documents to which each of Seller, Manager, the Company, or any Project Company is a party, and the performance of each of their respective obligations thereunder, including the conversions described in Section 2.4(p), (i) has been duly authorized, executed and delivered by such party, (ii) constitutes the valid and binding obligation of such party, as applicable, and is enforceable against such entity in accordance with its terms, (iii) does not violate any Applicable Law, decree, or judgment to which Seller, Manager, the Company or any Project Company or any of their respective properties are subject, (iv) does not conflict with, or cause a breach of, any provision in the Organizational Documents of Seller, Manager, the Company or any Project Company, (v) does not violate, result in the breach of, or constitute a default under certain examined documents, or result in the creation or imposition pursuant to the provisions of such examined documents of a Lien upon any assets of the Company or any Project Company, and (vi) does not require any notice, consent, approval or filing with any Governmental Authority or other Person, in each case, subject to customary qualifications, limitations and exceptions.
(d) There shall not be any action or proceeding that has been instituted or threatened in writing by any Governmental Authority or Person against any of Purchaser, Seller, Manager, the Company or any Project Company (i) that seeks to impair, restrain, prohibit or invalidate the transactions contemplated herein or in any Transaction Document, (ii) that seeks to impair, restrain, prohibit or invalidate the transactions contemplated by any Material Contract or (iii) regarding the effectiveness or validity of any governmental approvals with respect to any Project Company, except, in each case under clauses (ii) and (iii), to the extent such action or proceeding has not or could not reasonably be expected to have a Material Adverse Effect.
(e) Purchaser shall have received true and complete copies of all Material Contracts.
(f) Purchaser shall have received true and complete copies of all title policies with respect to the Puna Project, the Xxx X. Xxxxxxxx Project and the Xxx X. Xxxxxxxx Expansion and as-built surveys with respect to the Puna Project and the Xxx X. Xxxxxxxx Project, each of which shall be in form and substance reasonably satisfactory to the Purchaser.
(g) Seller shall have delivered to Purchaser an opinion officer's certificate of counsel an authorized officer of Seller (i) certifying that each of the conditions to the obligation of the Seller to consummate the Closing, set forth in Section 2.5, has been fulfilled to the satisfaction of Seller or has been waived by the Seller, (ii) certifying that each of the representations and warranties of Seller set forth in Section 3.1 is true and correct in all material respects as of the date hereof and as of the Closing Date (other than those qualified by a reference to materiality or Material Adverse Effect, which representations and warranties shall be true and correct in all respects); (iii) certifying that Seller has performed all of its obligations under this Agreement required to be performed by Seller prior to or at Closing; and (iv) attaching true and complete copies of the Organizational Documents and a good standing certificate issued as of a recent date of each of Seller, Manager, the Company and the Project Companies, and resolutions of Seller, Manager, and the Company authorizing the execution of and performance of each such entity's obligations under each of the Transaction Documents to which it is a party.
(h) Seller shall have delivered to Purchaser a certificate of incumbency from the secretary or assistant secretary of each of Seller, the Manager and the Company as to the officers of Seller, the Manager, and the Company who sign the Transaction Documents on behalf of each of them.
(i) The Company LLC Agreement shall have been duly executed and delivered by Seller to Purchaser.
(j) Seller shall have delivered to Purchaser an affidavit of non-foreign status that complies with Section 1445 of the Code, duly executed by Seller.
(k) The Management Services Agreement shall have been duly executed and delivered by Seller and the Company.
(l) Except as listed on Schedule 3.1(p), there shall be no defaults under any Material Contracts.
(m) Except as disclosed on Schedule 2.4(m), there shall not have occurred any events or circumstances that, individually or in the aggregate, have had or could reasonably be expected to have a Material Adverse Effect.
(n) Seller shall have delivered to Purchaser a duly executed Assignment Agreement with respect to the assignment of the Class B Membership Interests.
(o) Seller shall have delivered or caused the Company to deliver to Purchaser the certificate of Class B Membership Interest.
(p) Seller shall have provided evidence satisfactory to Purchaser that each of OREG 1, OREG 2, and OREG 3 was converted from a Delaware corporation to a Delaware limited liability company that is treated as a "disregarded entity" for United States federal income tax purposes and that each such conversion occurred at least one Business Day prior the sale provided for in Section 2.4(s) below.
(q) Seller shall have provided evidence satisfactory to Purchaser that each of the Project Companies has been contributed to the Company.
(r) Seller shall have provided an IRS Form 8594 in form and substance reasonably satisfactory to Purchaser.
(s) Seller shall have provided evidence satisfactory to Purchaser that no less than a one percent interest in the Company (such interest shall consist of 1% of the Class A Membership after closing) was sold to an entity that for United States federal income tax purposes is recognized as separate from each of the Seller and the Company and that such sale occurred at least five Business Days prior to the Closing.
(t) Seller shall have provided an estoppel duly executed by each Person and with respect to each contract set forth on Schedule 2.4(t) hereto; provided that with respect to the Puna Lease Financing Documents and the Puna Land Lease, Seller (x) shall deliver a request for an estoppel to the Owner Lessor (in respect of the Puna Lease Financing Documents) and to the respective landlord (in respect of the Puna Land Lease), (y) shall keep Purchaser updated regarding the response from each such counterparty and the status of any discussions between Seller and such counterparty regarding such request for an estoppel, and (z) may elect at any time prior to Closing to deliver written notice to Purchaser that the provision of Section 5.1(e) shall apply with respect to such contracts.
(u) Seller shall have delivered to Purchaser a duly executed amendment to the operations and maintenance agreement for the Xxx X. Xxxxxxxx Project, in the form attached hereto as Exhibit D.
(v) Seller shall have delivered to Purchaser an unaudited consolidated and consolidating balance sheet and statements of income, changes in members' equity, and cash flow as of and for the 12-month period ended December 31, 2014 for the Company and the Project Companies (the "Balance Sheet").
(w) Seller shall have delivered to Purchaser a copy of the duly executed DAC 2 EPC Agreement.
(x) Purchaser shall have received evidence that PGV has filed a self-certification of qualifying small power production facility status with FERC under subpart B of 18 C.F.R. part 292 with respect to such Project.
(y) Seller shall have delivered to Purchaser duly executed copies of operation and maintenance agreements for each of the OREG 1 Project, OREG 2 Project, and the OREG 3 Project, in form and substance reasonably satisfactory to Purchaser.
(z) Seller shall have provided evidence satisfactory to Purchaser that Purchaser has been named as an additional insured on all insurance policies relating to the Company, dated the Closing Date, Project Companies and the Projects as its interests may appear.
(aa) Seller shall have provided evidence satisfactory to such matters as Purchaser may reasonably request with respect that Seller has contributed US$ 4,000,000 to the transactions contemplated herebyCompany, which amount shall be used by the Company for payment of transaction expenses pursuant to Section 7.5.
f. Purchaser (bb) Seller shall have received all such certified resolutions, certificates, documents or instruments with respect delivered to Purchaser written evidence of the resignation of the managing member of the Company and of each Project Company, effective as Purchaser may reasonably require to carry out of the intent and purpose of this AgreementEffective Time.
g. No action, suit or proceeding (cc) Seller shall have delivered to Purchaser a CD containing all Background Materials.
(dd) Seller shall have delivered to Purchaser evidence that all interests in the geothermal resources and land rights previously assigned by PGV to PGV-II (the "PGV-II Interests") have been instituted before transferred back to PGV; provided, however, that if Seller is unable to obtain any courtconsent from any Governmental Authority or Person that are required for such transfer using commercially reasonable efforts, governmental or regulatory body or arbitral tribunal, or instituted or threatened Seller shall deliver written notice thereof to Purchaser and Section 4.14 shall continue in full force and effect after the Closing.
(ee) Seller shall have delivered to Purchaser evidence that monies in an amount equal to all revenues received by any governmental or regulatory bodyProject Company on and after January 1, which has or may have, in the opinion of Purchaser, a materially adverse effect on the assets, properties, business, operations or condition (financial or otherwise) of the Company.
h. No action, suit or proceeding shall 2015 have been instituted before any court, governmental or regulatory body or arbitral tribunal, or instituted or threatened by any governmental or regulatory body, to restrain, modify or prevent deposited into the carrying out of the transactions contemplated hereby or to seek damages or a discovery order in connection with such transactionsrespective bank accounts listed on Schedule 3.1(z).
Appears in 1 contract
Samples: Agreement for Purchase of Membership Interests (Ormat Technologies, Inc.)
