Conditions of Initial Purchasers’ Obligations The obligation of each Initial Purchaser to purchase Securities on the Closing Date as provided herein is subject to the performance by the Company and each of the Guarantors of their respective covenants and other obligations hereunder and to the following additional conditions:
Conditions of the Initial Purchasers’ Obligations The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx & XxXxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(e) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited), there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that:
Conditions to the Initial Purchasers’ Obligations The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Conditions Precedent to Purchaser’s Obligations All obligations of Purchaser hereunder are subject to the fulfillment or waiver of each of the following conditions at or prior to the Closing:
(a) All representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects when made and shall be deemed to have been made again at and as of the date of the Closing, and shall then be true and correct in all material respects.
(b) There shall not have been any breach in any material respect by Seller of any of its covenants, agreements and obligations required by the terms of this Agreement to be performed by Seller at or before the Closing.
(c) Since the date of this Agreement, none of the following shall have occurred: (i) improper conduct by Seller or any of its subsidiaries constituting fraud in connection with transactions with a significant supplier of inventory to Seller or any of its subsidiaries and (ii) violations of government contract laws, rules and practices committed by Seller or any of its subsidiaries that both (A) result in a termination or suspension of performance under a government prime or subcontract or debarment and (B) significantly impair the ability of Seller or any of its subsidiaries to conduct business as a government prime contractor or subcontractor.
(d) There shall have been no material adverse change since June 30, 1998 in the Assets or the financial condition, results of operations, prospects or business of the Business taken as a whole; provided that the foregoing shall not include the termination of any Franchise Agreements due to the public announcement of this Agreement or the transactions contemplated hereby.
(e) There shall be delivered to Purchaser a certificate executed by the chief executive officer and chief financial officer of Seller, dated the Closing Date, certifying, in their capacities as such officers, that the conditions set forth in paragraphs (a), (b), (c) and (d) of this Section 11 have been fulfilled.
(f) Seller shall have obtained evidence in form reasonably satisfactory to Purchaser that any Encumbrances on the Assets pursuant to the Credit Agreement have been or will, immediately following the Closing, be released by the lenders thereunder.
(g) The consummation of the transactions contemplated hereby shall not have been enjoined by any court or federal, state or foreign governmental agency, including, without limitation, the Department of Justice, the Federal Trade Commission or the SEC.
(h) Seller shall have filed all reports and satisfied all requests for additional information pursuant to Xxxx-Xxxxx, and all applicable waiting periods shall have expired.
(i) The consents set forth on Schedule 11(i) shall have been obtained and shall be in full force and effect and not subject to any condition that has not been satisfied or waived.
(j) Purchaser shall have received the opinion of Irell & Xxxxxxx LLP, counsel to Seller, substantially in the form of Exhibit F.
(k) There shall not be a moratorium on commercial bank lending declared by a federal or New York State regulatory authority or other circumstances or state of facts constituting a disruption in the financial markets causing banks and other financial institutions not to extend credit.
Conditions Precedent to the Seller’s Obligations The obligation of the Seller to consummate the transfer of the Asset as contemplated by this Agreement on the Closing Date is subject to the satisfaction (or waiver by the Seller) as of the Closing of the following conditions:
(a) Each of the representations and warranties made by the Buyer in this Agreement shall be true and correct in all material respects when made and on and as of the Closing Date as though such representations and warranties were made on and as of the Closing Date.
(b) The Buyer shall have performed or complied in all material respects with each obligation and covenant required by this Agreement to be performed or complied with by the Buyer on or before the Closing.
(c) No order or injunction of any court or administrative agency of competent jurisdiction nor any statute, rule, regulation or executive order promulgated by any Governmental Authority of competent jurisdiction shall be in effect or threatened in writing as of the Closing which restrains or prohibits the transfer of the Asset or the consummation of any other transaction contemplated hereby.
(d) The Buyer shall have made (or caused to have been made) all of the deliveries required to be made by the Buyer under SECTION 7.1.
(e) The Seller shall have received evidence that the Franchise Agreement has been terminated.
(f) Simultaneously with the execution of this Agreement, the Buyer or affiliates of Buyer (collectively, “Affiliate Buyers”) are entering into the Related Agreements with other sellers that are affiliates of Seller (collectively, “Other Sellers”). Except as otherwise set forth below, it shall be a condition precedent to the Seller’s obligation to close on the sale of the Asset, that (i) the closing date under the Related Agreements shall be the same as the Closing Date under this Agreement and (ii) the closing of the Related Agreements shall take place simultaneously with the Closing hereunder (i.e., the closing in this Agreement or any Related Agreement will have occurred when all of the conditions precedent to closing set forth in the applicable agreement have been met or waived by the appropriate party, including without limitation the Title Company’s receipt of the applicable deed or assignment of lease and its unconditional and irrevocable commitment to (x) record the deed or assignment of lease; and (y) issue the Title Policy effective as of such date, notwithstanding that such deed or assignment of lease may not have been recorded). If any of the Buyer or Affiliate Buyers defaults under this Agreement or any Related Agreement, as applicable, such default shall be deemed a default by the Buyer and the Affiliate Buyers under this Agreement and all of the Related Agreements. Notwithstanding the foregoing, in the event that any of the Seller or Other Sellers is in default under this Agreement or any other Related Agreement (any such agreement being a “Defaulted Agreement”), as applicable, and the respective parties thereto fail to close under such Defaulted Agreement, then, so long as the Acquisition Threshold is met, a closing under such Defaulted Agreement shall not be a condition precedent to the Seller’s obligation to close under this Agreement or any other Related Agreement (so long as the Acquisition Threshold is met); provided, however, in the event that the Acquisition Threshold is not met, then such defaults shall constitute a default under this Agreement and all other Related Agreements and the Buyer shall have the right to terminate this Agreement (and all other Related Agreements) and the Seller shall be deemed in breach hereof whereupon the Buyer shall have the remedies set forth in SECTION 11.2(c), except that the aggregate amount of out-of-pocket costs and expenses that the Buyer will be entitled to recover from the Seller for damages under this Agreement and the other Related Agreements shall in no event exceed Three Hundred Thousand Dollars ($300,000.00) under SECTION 11.2(c). Additionally, if any of the Buyer or Affiliate Buyers elects to terminate this Agreement or any Related Agreement, as applicable, under any provision of this Agreement or such Related Agreement that expressly gives the Buyer (or an Affiliate Buyer, as applicable) the right to terminate (other than as the result of the Seller’s default for which the preceding sentence in this clause (f) shall control), then any such notice to terminate under any such agreement shall be deemed an election to terminate this Agreement and all of the Related Agreements, it being the intention of the parties that except as otherwise set forth in this clause (f), there shall be no Closing under this Agreement unless there is a closing under the Related Agreements and vice versa.
Conditions to the Seller’s Obligations At the Closing, the Buyer shall deliver:
(i) certified copies of the resolutions duly adopted by the Buyer’s board of directors (or its equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby to which it is a party, and the consummation of all transactions contemplated hereby and thereby;
(ii) a certificate of an authorized officer of the Buyer in the form set forth in Exhibit E, dated as of the Closing, stating that: (i) all of the representations and warranties set forth in Article VI that are qualified as to materiality or words of similar import are true and correct in all respects, and those not so qualified are true and correct in all material respects, in each case as of the Closing (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date), and (ii) to the Buyer’s knowledge, no action or proceeding before any court or Governmental Authority is pending or threatened wherein an unfavorable judgment, decree or order which would prevent the performance of this Agreement or the consummation of any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement or would reasonably be expected to cause such transactions to be rescinded;
(iii) the Estimated Purchase Price as contemplated in Section 1.02 above; and
(iv) such other documents reasonably requested by the Representative for the consummation of the transactions contemplated hereby.
Conditions to Purchasers’ Obligations at the Closing Purchasers’ obligation to purchase the Shares at the Closing are subject to the satisfaction, at or prior to the Closing Date, of the following conditions:
Conditions of the Purchasers’ Obligations at Closing The obligations of the Purchaser to the Company under this Agreement are subject to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise waived:
Conditions to the Purchaser’s Obligations The obligation of each Purchaser to purchase the Shares and Warrants at the Closing is subject to the fulfillment to the Purchasers’ reasonable satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived in writing by the Purchasers:
(i) The representations and warranties made by the Company in Section 3.1 hereof shall be true and correct except where the failure to be so true and correct does not have a Material Adverse Effect. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date.
(ii) The Company shall have obtained in a timely fashion any and all material consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Shares and Warrants, all of which shall be and remain so long as necessary in full force and effect.
(iii) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, or self-regulatory organization enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction Documents.
(iv) The Company shall have delivered a Certificate, executed on behalf of the Company by its Chief Executive Officer or its Chief Financial Officer, dated as of the Closing Date, certifying to the fulfillment of the conditions specified in subsections (i), (ii), (iii) and(vii) of this Section 2.2(a).
(v) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Shares and Warrants, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company.
(vi) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order or suspension of trading shall have been imposed by any Person with respect to public trading in the Common Stock; and the Purchaser shall have received the Prospectus in accordance with the federal securities laws.
(vii) The Company’s Common Stock (including the Shares and the Warrant Shares) shall be eligible for inclusion on the Nasdaq Capital Market and listed and admitted and authorized for trading on the Nasdaq Capital Market.
Conditions Precedent to Buyer’s Obligations Each and every obligation of Buyer to be performed on the Closing Date shall be subject to the satisfaction prior to or at the Closing of each of the following conditions:
