Conditions to Buyer’s Obligations. The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to the satisfaction (or waiver by Buyer in its sole discretion) of the following conditions as of the Closing Date: (a) (i) The representations and warranties of Seller in Section 3.04, Section 3.05, and Section 3.23 shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse Effect; (b) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller shall have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the Closing; (c) Seller shall have delivered to Buyer a certificate of Seller, dated the Closing Date and executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfied; (d) Seller shall have delivered to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer; (e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates; (f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer; (g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect; (h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity; (i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract; (j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and (k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreement.
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Conditions to Buyer’s Obligations. The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to the satisfaction (or waiver by Buyer in its sole discretion) of the following conditions as of on or before the Closing Date:
(a) (i) The Except where the failure to be true and correct would not reasonably be expected to have a Material Adverse Effect, the representations and warranties of Seller set forth in Section 3.04, Section 3.05, and Section 3.23 Article IV hereof shall be true and correct in all respects at and as of the Closing Date with the same effect as though then made at and as though the Closing Date had been substituted for the date of this Agreement throughout such representations and warranties (without taking into account any disclosures by Sellers of discoveries, events or occurrences arising on or after the date of this Agreement), except that any such representation or warranty made as of a specified date (other than the date of this Agreement) shall only need to have been true on and as of such date, (ii) the representations and warranties of Seller in Section 3.08 shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09, Sellers and Section 5.15, Seller shall have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller Stockholders shall have performed in all material respects all of such covenants, obligations the covenants and agreements required to be performed and complied with by it and them under this Agreement at or prior to the Closing;
(c) Seller The stockholders of Sellers representing the number of shares required under their respective certificates of incorporation, other charter documents and the applicable law of the jurisdiction in which the Sellers were incorporated or organized shall have delivered to Buyer a certificate approved the consummation of Seller, dated the Closing Date and executed transactions contemplated by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfiedthis Agreement;
(d) Seller Sellers shall have delivered obtained on substantially the terms set forth in the form of consent provided by Buyer to Buyer Sellers prior to the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;date of this Agreement each consent and approval required as described on Schedule M; EXECUTION DRAFT
(e) Buyer Sellers shall have received evidence reasonably satisfactory assigned to it that: (i) all Liens on Buyer the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its AffiliatesPermits in Schedule E;
(f) The Transition Services Agreement Sellers shall have been executed by PIC and delivered provided evidence reasonably satisfactory to BuyerBuyer that Sellers are using commercially reasonable efforts to file within 90 days after the Closing any Tax Return listed on Schedule 4.09(a);
(g) Since the date of this Agreement, there Sellers shall not have occurred and paid any Taxes required to be continuing paid pursuant to any Material Adverse Effectfiled Tax Returns listed on Schedule 4.09(a);
(h) Seller Sellers shall have (i) delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) copies of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect unaudited consolidated balance sheet as of January 1December 31,2004 and the unaudited statements of income, 2016 shall have been established in accordance with stockholders' equity and cash flows, including the terms notes, of Sellers, for the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply year ended December 31,2004 and (ii) provided evidence reasonably satisfactory to Buyer that the receipt audit of all Consents necessary to effect Sellers' Financial Statements for the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated year ended December 31,2003 by the Contribution and Restructuring AgreementSellers' independent accountants has been completed, and Seller shall have delivered such audit is reasonably satisfactory to Buyer duly executed instruments (as applicable)or that such audit, evidencing the transfer of the equity interest of CO Holdco and NM Holdco when completed, will be reasonably satisfactory to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreement.Buyer;
Appears in 1 contract
Conditions to Buyer’s Obligations. The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to the reasonable satisfaction (or waiver by Buyer in its sole discretion) of the following conditions as of the Closing Date:
(a) (i) The Each of the representations and warranties of Seller set forth in Section 3.04, Section 3.05, Articles III and Section 3.23 IV hereof shall be true and correct in all respects at and as of the Closing Date with the same effect as though then made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) as of though the Closing Date with was substituted for the same effect as though made at and as date of this Agreement throughout such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time)warranties, except where to the extent the failure of such representations and warranties to be true and correct, individually or in correct at and as of the aggregate, Closing Date would not reasonably be expected to have a Material Adverse Effect; provided, however, that the representations contained in Article III and in Sections 4.01, 4.02, 4.03 and 4.04 must be true and correct in all respects without regard to whether or not a failure to be true and correct could not reasonably be expected to have a Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09, The Company and Section 5.15, Seller shall have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller Sellers shall have performed in all material respects all of such covenants, obligations the covenants and agreements required to be performed by it them under this Agreement (including Section 1.03(b) hereof) at or prior to the Closing;
(c) The consents set forth on the Required Third Party Consents Schedule attached hereto that are required as a result of the transactions contemplated by this Agreement in order to prevent a breach of or a default under or a termination of any agreement to which the Company or any of its Subsidiaries is a party or to which any material portion of the Company's or any of its Subsidiaries' property is subject shall have been obtained, unless the failure to obtain such consent would not reasonably be expected to result in a Material Adverse Effect;
(d) The applicable waiting periods, if any, under the Hart-Scott-Rodino Antitrust Xxxxxxxxxxxx Xxx of 1976 (the "HSR Act") shall haxx xxxxxxx xx xxxx xerminated, and the material governmental filings, consents, authorizations, and approvals set forth on the Required Governmental Consents Schedule attached hereto that are required for the consummation of the transactions contemplated hereby shall have been made and obtained, unless the failure to obtain such consent would not reasonably be expected to result in a Material Adverse Effect;
(e) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States or by any United States federal or state governmental or regulatory body, nor any statute, rule, regulation, or executive order promulgated or enacted by any United States federal or state governmental authority which restrains, enjoins, or otherwise prohibits the transactions contemplated hereby shall be in effect;
(f) Buyer shall have received from Sellers the completed Proceeds Schedule, in the form attached to this Agreement, together with a certificate of Sellers' Representative that the amounts set forth as the component parts of the Capital Contributions constitute all amounts necessary to pay in full the obligations described in such component parts.
(g) It is a further condition to Buyer's condition to close that: (i) each Seller executes and delivers a stock power confirming that the number of shares being transferred thereby and the number of shares represented by the applicable stock certificate is the number of shares represented on Schedule A of the Agreement as being owned by such Seller; and (ii) Buyer receives at Closing a true copy of the resolutions (minutes or written consent, in either case signed by the Board of Directors of the Company) approving and ratifying the 10-for-1 stock split reflected by the number of shares listed on Schedule A.
(h) The Sellers' Representative shall have delivered to Buyer each of the following:
(i) a certificate of Seller, the Company dated the Closing Date and executed by an executive officer of Seller(the "Company's Closing Certificate") in a form substantially similar to Exhibit A-1 hereto, stating that the conditions specified in Section 2.02(asubsections (a) and Section 2.02(b(b) hereof, inclusive, as they relate to the Company have been satisfied;
(dii) Seller shall a certificate of the Sellers' Representative (on behalf of the Sellers) dated the Closing Date (the "Sellers' Certificate") in a form substantially similar to Exhibit A-2 hereto, stating that the conditions specified in subsections (a) and (b) as they relate to the Sellers have delivered to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyerbeen satisfied;
(eiii) Buyer shall have received evidence reasonably satisfactory to it that: copies of the third party and governmental consents required by subsections (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictionsc) and all Liens (other than Permitted Liensd) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliatesabove;
(fiv) The Transition Services Agreement shall have been executed by PIC and delivered the certificates evidencing the Stock referred to Buyerin Paragraph 1.03(b)(i);
(gv) Since all minute books, ledgers, and registers, corporate seals, and other corporate records relating to the date organization, ownership, and maintenance of this Agreement, there shall not have occurred and be continuing any Material Adverse Effectthe Company;
(hvi) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) resignations effective as of the Code in connection with the sale Closing Date from all of the Holdco Equitydirectors of the Company;
(ivii) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms a copy of the Subject ContractCompany's Certificate of Incorporation, certified by the Secretary of State of the State of Delaware, and Certificates of Good Standing from the Secretary of State of each jurisdiction in which the Company is qualified to do business each dated within five business days of the Closing Date;
(jviii) Seller shall have delivered releases in the form of Exhibit E hereto executed by the Sellers (collectively, "Sellers' Releases");
(ix) a written opinion of Arnold & Porter, special lxxxx xxunsel to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2)Company and the Sellers, addressed to the Buyer, in substantially the form attached as Exhibit F-1 hereto; and
(kx) The Restructuring as described in Section 5.14 shall be completed a noncompetition agreement in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer form of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated Exhibit G hereto properly executed by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring AgreementLawrence W. Smith.
Appears in 1 contract
Samples: Stock Purchase Agreement (Maverick Tube Corporation)
Conditions to Buyer’s Obligations. The obligation obligations of Buyer to consummate make payment of the Purchase Price and other sums provided for herein and to close the transactions contemplated by this Agreement hereby is subject to the satisfaction (or waiver by Buyer in its sole discretion) full of each of the following conditions as of ("BUYER'S CONDITIONS") on or before the Closing Date:
(a) (i) The representations representations, warranties and warranties agreements of Seller contained in Section 3.04, Section 3.05, and Section 3.23 3 shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 shall be true and correct accurate in all material respects (disregarding all qualifications or on the Closing Date, as if made on such date. Notwithstanding the limitations as to materiality or “Material Adverse Effect” set forth therein) as of the Closing Date with Seller's knowledge, the same effect actual existence of the facts as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which represented shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as a condition to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect Buyer's obligation to Section 3.06 and Section 3.15(b)) as of close the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse Effect;transactions contemplated hereby.
(b) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller shall have performed all of on or before the covenants, Closing Date the obligations and agreements required to be performed by it therein in all respects at on or prior to before the Closing; and (ii) all other covenantsClosing Date, including the obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the Closing;Escrow Agreement.
(c) Seller shall have delivered completed all the deliveries required to Buyer a certificate of Seller, dated the Closing Date be made by Seller under Section 7.3 and executed by an executive officer of Seller, stating that the conditions specified elsewhere in Section 2.02(a) and Section 2.02(b) have been satisfied;this Agreement.
(d) Seller Title Company shall have delivered be committed to Buyer issue the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity Title Policy to Buyer;.
(e) Buyer shall have received evidence reasonably satisfactory an affidavit to it that: (i) all Liens on the Equity (other than Liens created by or on behalf effect that Seller is not a foreign person for purposes of the withholding provision of Section 1445 of the Internal Revenue Code of 1986 or, to the extent such withholding is required, instructions as to the required withholding. Buyer's Conditions are solely for the benefit of Buyer and applicable federal may be waived only by Buyer. Any such waiver or waivers shall be in writing and state securities law restrictions) and all Liens (other than Permitted Liens) on any property shall be delivered to Seller. Buyer shall not act or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant fail to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, act for the avoidance purpose of doubtpermitting or causing any of Buyer's Conditions to fail. If any of Buyer's Conditions is not satisfied or has not been so waived by Buyer prior to the Scheduled Closing Date, excludes any operating Buyer shall give written notice to Seller describing the condition which has not been satisfied or capital leases) waived and either Buyer or Seller by notice to the other party shall be entitled to postpone the Scheduled Closing Date as provided in Section 7.1 for the purpose of Seller and its Affiliates;
(f) The Transition Services attempting to obtain satisfaction of such condition or conditions. Nothing contained in this Agreement shall have been executed by PIC and delivered require Buyer or Seller to Buyer;
(g) Since postpone the date of this AgreementScheduled Closing Date or to bring any suit or other proceedings or, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (except as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreement.expressly
Appears in 1 contract
Conditions to Buyer’s Obligations. The obligation obligations of Buyer to consummate the transactions transaction contemplated by this Agreement is are, in addition to the other terms and conditions of this Agreement, subject to the satisfaction following (any one or waiver more of which may be waived in whole or in part by Buyer in at its sole discretion) of the following conditions as of the Closing Date:):
(a) (i) The representations and warranties of made by Seller in Section 3.04, Section 3.05, and Section 3.23 shall be this Agreement being true and correct in all material respects on and as of the Closing Date with the same force and effect as though made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) had been made as of the Closing Date with the same Date, and Seller shall deliver a certificate to such effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse Effect;Closing
(b) With respect to: (i) Section 5.08The issuance of an irrevocable commitment by the Title Company that the Title Company is ready, Section 5.09willing, and Section 5.15able to issue, Seller upon payment of Title Company’s regularly scheduled premium, (A) an American Land Title Association (ALTA) extended owner’s policy of title insurance in the face amount of the Purchase Price which must have endorsements as required by Buyer, showing title to the Property vested in Buyer subject only to the Permitted Exceptions, the lien of real property taxes for the current fiscal year not yet due or payable, and the standard preprinted exceptions and stipulations of the Title Commitment and owner’s title insurance policy
(c) The Leases shall have performed expired and all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller tenants thereunder shall have vacated the Property;
(d) The Los Angeles County Fire Department shall have signed-off that the violation specified in Schedule 1 has been remediated; and
(e) Seller having performed in all material respects all of such covenants, covenants and obligations and agreements in all material respects required by this Agreement to be performed by it under this Agreement at Seller on or prior to the Closing;
(c) Seller shall have delivered to Buyer a certificate of Seller, dated the Closing Date and executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfied;
(d) Seller shall have delivered to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring AgreementDate.
Appears in 1 contract
Conditions to Buyer’s Obligations. The obligation obligations of Buyer to consummate consummate, or cause to be consummated, the transactions contemplated by this Agreement is are subject to the satisfaction (or waiver by Buyer in its sole discretion) of the following conditions as additional conditions, any one or more of the Closing Datewhich may be waived in writing by Buyer:
(a) (i) The representations and warranties of Seller the Selling Stockholders set forth in (i) Section 3.042, Section 3.053.1 (Organization and Authority), Section 3.2 (Authorization and Enforceability), Section 3.3(a) (Noncontravention), Section 3.4 (Capitalization), Section 3.5 (No Other Liabilities) and Section 3.23 3.6 (No Brokers Fees) shall be true and correct in all respects as of the Closing Date with the same effect as though if made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) as of the Closing Date with the same effect as though made at and as of such date time (except those for representations and warranties that address matters only speak as of a specified specific date or timeprior to the Closing Date, in which shall case such representations and warranties need only be true and correct in all respects as of that specified date or timesuch earlier date) and (iiiii) all other representations and warranties subsections of Seller contained in Article III Section 3 shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though if made at and as of such date time (except those for representations and warranties that address matters only speak as of a specified specific date or timeprior to the Closing Date, in which shall case such representations and warranties need only be true and correct in all respects as of that specified date or timesuch earlier date), except where the failure of all such representations and warranties of the Selling Stockholders referred to in this clause (ii) to be so true and correctcorrect would not, individually or in the aggregate, would not ; have a Material Adverse Effectmaterial adverse effect on the ability of the Selling Stockholders to enter into and perform their obligations under this Agreement;
(b) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller shall have performed all Each of the covenants, obligations and agreements required covenants of the Selling Stockholders to be performed by it therein in all respects at as of or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller Closing under the terms of this Agreement shall have been performed in all material respects all of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the Closingrespects;
(c) Seller Each Selling Stockholder shall have delivered to Buyer a certificate of Sellercertificate, dated as of the Closing Date and executed by an executive officer of SellerDate, stating that the conditions specified in Section 2.02(a6.2(a) and Section 2.02(b) 6.2(b), as they relate to such Selling Stockholder, have been satisfied;; and
(d) Seller shall have delivered to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets All of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for closing conditions set forth in Section 7.2 of the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Merger Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement satisfied or validly waived (other than with respect those to (i) be satisfied at the transfer Closing itself, but subject to the satisfaction or waiver of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereofconditions), including without limitation, and the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease transactions contemplated by the Contribution and Restructuring Agreement, and Seller Merger Agreement shall have delivered to Buyer duly executed instruments (as applicable), evidencing be consummated concurrently with the transfer consummation of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreementtransactions hereunder.
Appears in 1 contract
Conditions to Buyer’s Obligations. The obligation obligations of Buyer to consummate the transactions contemplated by this Agreement is are subject to the satisfaction (or waiver by Buyer in its sole discretionBuyer’s waiver) of the following conditions as of the Closing Date:
(a) (i) A. The representations and warranties of Seller in Section 3.04, Section 3.05, and Section 3.23 shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 shall contained herein will be true and correct in all material respects (disregarding all qualifications or limitations at and as to materiality or “Material Adverse Effect” set forth therein) as of the time of the Closing Date with the same effect as though made at and as of such date (except for those representations and warranties that address matters only as of a specified any other particular date or time, (in which case such representations and warranties shall be have been true and correct in all material respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(bparticular date)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, B. Seller shall have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall hall have performed in all material respects all of such covenants, obligations the covenants and agreements required to be performed by it under this Agreement at or prior to the Closing;
(c) C. Seller shall have delivered to Buyer a certificate of Sellerat the Closing, dated the Closing Date applicable conveyance documents sufficient to transfer the Purchased Assets in form and substance satisfactory to Buyer, duly executed by an executive officer of Seller, stating that the conditions specified appropriate parties in Section 2.02(a) and Section 2.02(b) have been satisfiedsufficient counterparts for filing in the counties where the Property is located;
(d) D. Seller shall have delivered to Buyer at the Closing, such other agreements, documents, certificates representing and instruments as Buyer may reasonably request as being necessary in order to effectuate the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyertransactions contemplated by this Agreement;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(h) E. Seller shall have delivered to Buyer a fully executed copy at the Closing the resolutions approving the transactions contemplated by this Agreement and the other documents related hereto, and the consummation of a binding written agreement between PIC transactions hereunder and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equitythereunder;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) F. Seller shall have delivered provided a copy of title information in its possession regarding the Purchased Assets to Buyer;
G. Buyer shall have completed a certificate due diligence review of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2)Purchased Assets and shall have obtained satisfactory results therefrom as determined by Buyer in its sole discretion; and
(k) The Restructuring as described in Section 5.14 H. Buyer shall be completed in have received the manner set forth in appropriate internal approvals to consummate the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease transactions contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Standard Energy Corp.)
Conditions to Buyer’s Obligations. The obligation obligations of Buyer to consummate the transactions contemplated by this Agreement is contem- plated hereby shall be subject to the satisfaction (or waiver following conditions, any of which may be waived in writing by Buyer in its sole discretion) of the following conditions as of the Closing DateBuyer:
(a) (i) The representations and warranties Each of Seller in Section 3.04, Section 3.05, and Section 3.23 shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller the Company and the Shareholder set forth in Section 3.08 this Agree- ment shall be true and correct in all material respects as of the date of this Agreement and (disregarding all qualifications or limitations except to the extent such representations and warranties speak as to materiality or “Material Adverse Effect” set forth thereinof an earlier date) as of the Closing Date with the same effect as though made at on and as of the Closing Date; provided, however, that for purposes of determining the satisfaction of the condition contained in this Section 5.1(a), no effect shall be given to any ex- ception in such date (except those representations and warranties that address matters only as of relating to materiality, or a specified date or timeCompany Material Adverse Effect, which and such representations and warranties shall be deemed to be true and correct in all material respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where if the failure or failures of such representations and warranties to be so true and correct, individually or correct without regard to materiality and Company Material Adverse Effect exceptions do not rep- resent in the aggregate, would not have aggregate a Company Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09, The Company and Section 5.15, Seller the Shareholder shall have performed per- formed and complied in all of the material respects with all agreements, covenants, obligations and agreements conditions required by this Agreement to be performed or complied with by it therein in all respects them at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the ClosingClosing Date;
(c) Seller The Company shall have delivered to Buyer a certificate of Sellercer- tificate, dated as of the Closing Date Date, signed on behalf of the Company by its Chief Executive Officer and executed by an executive officer Chief Operating Officer confirming the satisfaction of Seller, stating that the conditions specified con- ditions contained in Section 2.02(aparagraphs (a) and Section 2.02(b(b) have been satisfiedof this Sec- tion 5.1;
(d) Seller The Shareholder shall have delivered to Buyer a certificate, dated as of the certificates representing Closing Date, signed by the Holdco Equity or, if Shareholder confirming the Holdco Equity is not certificated, duly executed transfer instruments conveying satisfaction of the Holdco Equity to Buyerconditions contained in paragraphs (a) and (b) of this Section 5.1;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf opinion of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (whichDebev- oise & Xxxxxxxx, for the avoidance of doubtCompany's counsel, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred dated as of the ClosingClos- ing Date, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring substantially in the manner set forth in the Contribution and Restructuring Agreement.form attached hereto as Exhibit H-1;
Appears in 1 contract
Conditions to Buyer’s Obligations. The obligation obligations of Buyer to consummate the transactions contemplated by this Agreement is and to take the other actions required by this Agreement at the Closing shall be subject to the satisfaction (or, to the extent permitted by applicable Law, waiver on or waiver by Buyer in its sole discretion) prior to the Closing Date of the following conditions as of the Closing Dateconditions:
(a) Buyer is satisfied, in its sole discretion, with its due diligence review of the Business, the Purchased Assets and the Assumed Liabilities.
(ib) The Each of the representations and warranties of Seller and Owners in Section 3.04Article IV that is qualified by “materiality”, Section 3.05, and Section 3.23 “material” or similar qualification shall be true and correct in all respects as respects, and each of the Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller and Owners in Section 3.08 Article IV that is not so qualified shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) as of the Closing Date with the same effect as though such representations and warranties were made at and as of such date the Closing Date (except those for representations and warranties that address matters only are expressly made as of a specified specific date or timeperiod, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified specific date or time, which period).
(c) Seller and Owners shall be true have performed and correct complied in all material respects as of that specified date or time)with all agreements, except where the failure of such representations covenants and warranties obligations required by this Agreement to be true and correctperformed or complied with by Seller or such Owners at or prior to Closing.
(d) Since the Effective Date no event has occurred that has had, individually or in the aggregateis reasonably likely to have, would not have a Material Adverse Effect;.
(be) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller shall have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects delivered at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations and agreements the items listed in Section 9.02(b) required to be performed delivered by it under this Agreement at or prior to Seller.
(f) Buyer shall be satisfied with the Closingprogress of the audit required by Section 6.02;
(c) Seller shall have delivered to Buyer a certificate of Seller, dated the Closing Date and executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfied;
(d) Seller shall have delivered to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(eg) Buyer shall have received evidence reasonably sufficient financing on terms satisfactory to it that: (i) all Liens on Buyer to enable Buyer to consummate the Equity (other than Liens created transactions contemplated by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;.
(h) Seller Buyer shall have delivered to Buyer a fully executed copy received the consent of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” PR (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof11.06), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated any certificates, documents or agreements required by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring PR in the manner set forth in the Contribution and Restructuring Agreementconnection therewith.
Appears in 1 contract
Samples: Asset Purchase Agreement (Digerati Technologies, Inc.)
Conditions to Buyer’s Obligations. The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to the satisfaction (satisfaction, or waiver by Buyer in its sole discretion) Buyer, of the following conditions as of on or before the Closing Date:
(a) (i) The representations and warranties of Seller set forth in Section 3.04, Section 3.05, and Section 3.23 shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date, Article IV (ii) other than the representations and warranties of Seller in Section 3.08 Sections 4.09(a), 4.09(g), 4.09(o), 4.20(a), 4.21(a)) hereof shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) at and as of the Closing Date with the same effect as though then made at and as though the Closing Date had been substituted for the date of such this Agreement, (without taking into account any disclosures by Seller of discoveries, events or occurrences arising on or after the date (hereof), except those representations and warranties that address matters only any representation or warranty made as of a specified date or time(other than the date hereof) shall only need to have been true in all material respects on and as of such date;
(b) The representations and warranties set forth in Sections 4.09(a), which 4.09(g), 4.09(o), 4.20(a), 4.21(a) hereof shall be true and correct in all respects as of that specified date or time) at and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though then made at and as though the Closing Date had been substituted for the date of such this Agreement, (without taking into account any disclosures by Seller of discoveries, events or occurrences arising on or after the date (hereof), except those representations and warranties that address matters only any representation or warranty made as of a specified date or time, which (other than the date hereof) shall be only need to have been true and correct in all respects on and as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse Effectdate;
(bc) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller shall have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations the covenants and agreements required to be performed and complied with by it under this Agreement at or prior to the Closing;
(c) Seller shall have delivered to Buyer a certificate of Seller, dated the Closing Date and executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfiedAgreement;
(d) Seller shall have delivered satisfied all conditions to Buyer closing set out in the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to BuyerReal Estate Purchase Agreement;
(e) Buyer Seller shall have received evidence reasonably satisfactory obtained, or caused to it that: (i) all Liens on be obtained, each consent and approval necessary in order that the Equity (other than Liens created by transactions contemplated herein do not constitute a breach or on behalf violation of, or result in a right of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) termination or acceleration of, or creation of any Lien on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing Assets pursuant to documentation reasonably satisfactory the provisions of any agreement, arrangements or undertaking of or affecting Xxxxxxx or the Assets, regardless of whether the same is assigned to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its AffiliatesBuyer pursuant hereto;
(f) The Transition Services Agreement Seller shall have assigned to Buyer the Permits in Schedule G and Buyer shall, immediately after the Closing, be lawfully authorized to operate the business of Xxxxxxx under the Seller's Permits, or the Buyer shall have been executed by PIC and delivered issued permits similar to Buyerthe Permits;
(g) Since All material governmental filings, authorizations and approvals that are required for the date consummation of this Agreement, there shall not the transactions contemplated hereby will have occurred been duly made and be continuing any Material Adverse Effectobtained;
(h) No withholding order shall have been issued by the Illinois Department of Revenue in response to the Buyer's filing of Form NUC-542-A.
(i) There shall not be threatened, instituted or pending any action or proceeding, before any court or governmental authority or agency, domestic or foreign: (i) challenging or seeking to make illegal, or to delay or otherwise directly or indirectly restrain or prohibit, the consummation of the transactions contemplated hereby or seeking to obtain material damages in connection with such transactions; (ii) seeking to prohibit direct or indirect ownership or operation by Buyer of all or a material portion of the Assets, or to compel Buyer or any of its subsidiaries to dispose of or to hold separately all or a material portion of the business or assets of Buyer and its subsidiaries, as a result of the transactions contemplated hereby; (iii) seeking to invalidate or render unenforceable any material provision of this Agreement or any of the Other Agreements; or (iv) otherwise relating to and materially adversely affecting the value of the Assets or the business of Xxxxxxx;
(j) There shall not be any action taken, or any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated, issued or deemed applicable to the transactions contemplated hereby by any federal, state or foreign court, government or governmental authority or agency, which would reasonably be expected to result, directly or indirectly, in any of the consequences referred to in Section 8.01(g);
(k) Buyer shall have received from counsel for Seller a written opinion in the form attached hereto as Exhibit E, dated as of the date of the Closing;
(l) Buyer and Seller shall have executed the Assumption Certificate; and
(m) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) all of the Code in connection with the sale of the Holdco Equity;following:
(i) The “Contract Price” (executed copies of the Xxxx of Sale and such other instruments of conveyance, transfer, assignment and delivery as defined in the Subject Contract) in effect as of January 1, 2016 Buyer shall have been established in accordance with reasonably requested, including such instruments called for under the terms of the Subject ContractReal Estate Purchase Agreement;
(jii) Seller shall have delivered to Buyer a certificate executed copies of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); andAssignment and Assumption Agreement and the Transitional Services and Operations Agreement;
(kiii) The Restructuring as described in Section 5.14 shall be completed in certificates of an officer of Seller satisfactory to Buyer, dated the manner Closing Date, stating that the conditions precedent set forth in subsections (a) and (b) above have been satisfied;
(iv) copies of the Contribution third party and Restructuring governmental consents and approvals referred to in subsections (d) and (e) above;
(v) a copy of the text of the resolution adopted by the board of directors of Seller authorizing the execution, delivery and performance of this Agreement, along with a certificate executed on behalf of Seller, by its corporate secretary certifying to Buyer that such copy is a true, correct and complete copy of such resolution, and that such resolution was duly adopted and has not been amended or rescinded;
(vi) incumbency certificates executed on behalf of Seller by its corporate secretary certifying the signature and office of each officer executing this Agreement or any of the Related Agreements;
(other than with respect to (ivii) the transfer of all Permits listed on Schedule 1(g)-3 of A/P Report; (viii) such other certificates, documents and instruments as Buyer reasonably requests to the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease transactions contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreement.hereby;
Appears in 1 contract
Conditions to Buyer’s Obligations. The obligation obligations of the Buyer to effect the Closing and to consummate the transactions contemplated by this Agreement is Transactions are subject to the satisfaction (or waiver by Buyer in its sole discretion) on or prior to the Closing Date of the following conditions as of the Closing Dateconditions:
(a) (i) The all representations and warranties of the Seller Parties contained in Article III (other than Section 3.043.10(c)) without regard to any reference as to materiality, Section 3.05materially, and Section 3.23 material respects or Material Adverse Effect or similar materiality qualifiers set forth therein, shall be true and correct in all respects as of the Closing Date with the same effect as though if made at on and as of such dateClosing, except: (iii) that the representations truth and warranties correctness of Seller in Section 3.08 shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only by their terms expressly speak as of a specified date will be determined as of such date; and (ii) where any failure or timefailures to be so true and correct has not had and would not reasonably be expected to have, which individually or in the aggregate, a Material Adverse Effect. The representation and warranty contained in Section 3.10(c) shall be true and correct in all respects as of that specified date or time) the Closing as if made on and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse EffectClosing;
(b) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, the Seller Parties shall have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed satisfied in all material respects all of such covenants, obligations agreements and agreements covenants required hereby to be performed or complied with by it under this Agreement at or the Seller Parties prior to or at the Closing;
(c) the Seller Parties shall have delivered to Buyer all certificates, instruments, Contracts and other deliveries required to be delivered by the Seller Parties or any of their Affiliates pursuant to this Agreement, including the deliveries referred to in Section 2.7(a); and
(d) the Seller Parties shall have delivered to Buyer a certificate executed as of Seller, dated the Closing Date and executed by an executive officer authorized representative of Seller, stating each Seller Party to the effect that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfied;
(d) Seller shall have delivered to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution Section 6.2(a) and Restructuring Agreement (other than with respect to (i6.2(b) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreementare satisfied.
Appears in 1 contract
Samples: Asset Purchase Agreement (Chesapeake Midstream Partners, L.P.)
Conditions to Buyer’s Obligations. Regarding Initial --------------------------------------------------- Receivables. The obligation obligations of Buyer to consummate purchase the transactions contemplated by this Agreement is Transferred Assets on the ----------- RPA Closing Date shall be subject to the satisfaction (or waiver by Buyer in its sole discretion) of the following conditions as of the Closing Dateconditions:
(a) (i) The All representations and warranties of RPA Seller contained in Section 3.04, Section 3.05, and Section 3.23 this Agreement shall be true and correct in all respects as of on the RPA Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 had been made on such date;
(b) All information concerning the Accounts provided to Buyer shall be true and correct as of the RPA Closing Date in all material respects respects;
(disregarding c) RPA Seller shall have delivered or caused to be delivered to Buyer a computer file or microfiche list containing a true and complete list of all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) Accounts identified by account number and by the Receivables balance as of the RPA Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09Date, and Section 5.15, RPA Seller shall have substantially performed all of the covenants, other obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all provisions of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the Closing;
(c) Seller shall have delivered to Buyer a certificate of Seller, dated the Closing Date and executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfiedAgreement;
(d) RPA Seller shall have recorded and filed, at its expense, any financing statement with respect to the Receivables (other than Receivables in Additional Accounts) now existing and hereafter created for the transfer of accounts meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the sale of the Receivables to Buyer, and shall have delivered to Buyer the certificates representing the Holdco Equity ora file-stamped copy of such financing statements or other evidence of such filings (which may, if the Holdco Equity is not certificatedfor purposes of this paragraph, duly executed transfer instruments conveying the Holdco Equity consist of telephone confirmations of such filings) to Buyer;
(e) All corporate and legal proceedings and all instruments in connection with the transactions contemplated by this Agreement shall be satisfactory in form and substance to Buyer, and Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of from RPA Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer copies of all Permits listed on Schedule 1(g)-3 documents (including records of corporate proceedings) relevant to the Restructuring Agreement, to which, if any such Permits transactions herein contemplated as Buyer may reasonably have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreementrequested.
Appears in 1 contract
Samples: Receivables Purchase Agreement (First Consumers Master Trust)
Conditions to Buyer’s Obligations. The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to the satisfaction (or waiver by Buyer in its sole discretion) of the following conditions as of the Closing Date:
(a) (i) Closing: The representations and warranties of Seller set forth in Section 3.04, Section 3.05, Article III and Section 3.23 shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 Article IV shall be true and correct in all material respects (disregarding all qualifications or limitations except that the representations and warranties which are qualified as to materiality “materiality” or “Material Adverse Effect” set forth therein) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or timeso qualified) at and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though then made at and as though the Closing Date were substituted for the date of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of this Agreement throughout such representations and warranties (without taking into consideration any disclosures made by Sellers or the Company to be true Buyer pursuant to Section 3.31 or 4.5 hereof); Sellers and correct, individually or in the aggregate, would not have a Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller Company shall have performed and complied with in all material respects all of the covenants, obligations respective covenants and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all each of such covenants, obligations and agreements required to be performed by it them under this Agreement at or prior to the Closing;
; The following shall have been obtained by Sellers or the Company, in each case on terms reasonably satisfactory to Buyer: (ci) Seller all consents and approvals by third parties that are required for the valid transfer of the Shares to Buyer or that are otherwise required for the consummation of the transactions contemplated hereby or that are required in order to prevent a breach of or a default under or a termination or modification of or acceleration of any obligation under any material contract, agreement, instrument, insurance policy, lease or license to which the Company is a party or to which any portion of the property of the Company is subject; (ii) payoff letters with respect to all Indebtedness of the Company outstanding as of the Closing and releases of all Liens securing such Indebtedness; (iii) releases of any and all Encumbrances with respect to the Shares and releases of any and all guarantees by the Company and (iv) release of the Company by Sellers as shareholders of the Company; All governmental filings, authorizations and approvals that are required for the valid transfer of the Shares and the consummation of the transactions contemplated hereby shall have been duly made and obtained by Sellers or the Company on terms reasonably satisfactory to Buyer, and all applicable waiting periods (and any extensions thereof) under the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), shall have expired or otherwise terminated; No action, suit, condemnation or proceeding shall be pending or threatened before any court, governmental body or arbitrator wherein an unfavorable judgment, decree, injunction or order would prohibit or impair the performance of this Agreement or the consummation of any of the transactions contemplated hereby, declare unlawful or grant damages or other relief with respect to the transactions contemplated by this Agreement, cause such transactions to be rescinded or materially and adversely affect the right of Buyer to own, operate or control the Company, and no such judgment, decree, injunction or order shall have been entered unless subsequently dismissed or discharged with prejudice; Except as otherwise approved in writing by Buyer, all of the Company’s officers and directors shall have resigned their positions effective as of the Closing; Since July 31, 2007, there shall have been no Material Adverse Effect or any event, development or change which would reasonably be expected to have a Material Adverse Effect; With respect to the Leased Real Property, the Company shall have delivered to Buyer, at the Company’s expense, the following documents: (i) estoppel, consent and lien waiver letters from the landlords and/or tenants (as applicable) listed on Schedule 3.9(b), in form and substance reasonably satisfactory to Buyer and its lenders and (ii) non-disturbance agreements from the lenders of any of the landlords listed on Schedule 3.9(b), in form and substance reasonably satisfactory to Buyer and its lenders; Buyer and its agents, lenders, consultants and accounting and legal representatives shall have completed their financial, operating, environmental, tax, accounting, business, regulatory and legal due diligence review of the Company, and Buyer shall be satisfied with the results of such due diligence review in its sole discretion; Each of the Sellers shall have entered into an agreement for employment with the Company, each in form substantially the same as that attached hereto as Exhibit B-1 and Exhibit B-2 (the “Employment Agreements”), and all of such agreements shall be in full force and effect at the Closing; Sellers and the Escrow Agent shall have executed and delivered to Buyer a counterpart of the Escrow Agreement, and the Escrow Agreement will be in full force and effect at the Closing; Buyer shall have received evidence that the Company’s and Sellers’ legal counsel, investment bankers and other agents and representatives hired or retained in connection with the transactions contemplated hereby have been paid in full, and that the Company has no further liability to any of the Company’s or Sellers’ legal counsel, investment bankers, agents or representatives, and such evidence shall be in form and substance reasonably satisfactory to Buyer; Sellers and the Company shall have terminated all agreements (if any) regarding voting, transfer or other arrangements related to the capital stock of the Company, and the Company shall have terminated all agreements between the Company (on the one hand) and any Insider (on the other), in each case on terms and conditions reasonably satisfactory to Buyer; Buyer shall have received an opinion, dated the Closing Date, of Rafferty, Stolzenberg, Gxxxxx, Txxxxxxxxx & Fxxxx, P.A., counsel to Sellers and the Company, with respect to matters set forth in Exhibit C attached hereto and in form and substance reasonably satisfactory to Buyer and its counsel, which shall include a statement that Buyer’s lenders may rely on such opinion; All proceedings to be taken by Sellers and the Company in connection with the consummation of the Closing Transactions and the other transactions contemplated hereby and all certificates, opinions, instruments and other documents required to be delivered by Sellers or the Company to effect the transactions contemplated hereby reasonably requested by Buyer shall be reasonably satisfactory in form and substance to Buyer; At the Closing, Sellers and Company shall have delivered to Buyer all of the following: a certificate of Sellerfrom Sellers in the form set forth in Exhibit D attached hereto, dated the Closing Date and executed by an executive officer of SellerDate, stating that the conditions preconditions specified in Section 2.02(aSections 2.1(a) through (h), inclusive, and (l), (m) and Section 2.02(b(o) have been fully satisfied;
(d) Seller shall have delivered to Buyer the certificates representing the Holdco Equity or; copies of all third party and governmental consents, if the Holdco Equity is not certificatedapprovals, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer filings, releases, terminations and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code payoff letters required in connection with the sale consummation of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms transactions contemplated herein; certified copies of the Subject Contract;
(j) Seller shall have delivered to Buyer resolutions of the Company’s board of directors approving the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement; a certificate of non-foreign status meeting the requirements secretary of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
state of each state in which the Company is incorporated and each state where the Company is qualified to do business (k) The Restructuring including as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b3.1) hereof), including without limitation, stating that the execution and delivery Company is in good standing in each such jurisdiction; certified copies of the Subsidence Rights Company’s articles of incorporation and Easement Agreements bylaws (or other equivalent organizational documents) as in effect at the Closing. copies of the resignations described in Section 2.1(f); a non-foreign affidavit from each Seller, dated as of the Closing Date, sworn under penalty of perjury and Water Lease in form and substance required under the Treasury Regulations issued pursuant to Section 1445 of the Code stating that such Seller is not a “Foreign Person” as defined in Section 1445 of the Code; all documents, records and instruments relating to the business of the Company that are in any Seller’s possession (including all board and shareholder minute books and all stock record books); and such other documents or instruments as Buyer reasonably requests to effect the transactions contemplated hereby. GM Squared Acquisitions, LLC shall have executed and entered into a lease agreement, effective as of the Closing substantially in the form of Exhibit E-1 attached hereto with the Company for the lease of the property at 1000 XX 00xx Xxxxxx, Xxxxxxx Xxxxx, XX 00000 and described as Uxxxx 0, 0, 00, 00 and 12 of Turnpike Distribution Center, Phase III; Mana Associates, LLC shall have executed and entered into a lease agreement, effective as of the Closing substantially in the form of Exhibit E-2 attached hereto with the Company for the lease of the property at 1000 XX 00xx Xxxxxx, Xxxxxxx Xxxxx, XX 00000 and described as Uxxxx 0 xxx 0 xx Xxxxxxxx Xxxxxxxxxxxx Xxxxxx, Xxxxx XXX; and Sellers or their Affiliates shall have assigned to the Company all Intellectual Property and other assets related to the business of the Company which are owned, held, or licensed by the Contribution and Restructuring AgreementSellers or their affiliates, on terms acceptable to Buyer, and Seller Sellers shall have delivered to Buyer duly executed instruments (as applicable)have, evidencing at their sole cost and expense, recorded such assignments with the transfer of the equity interest of CO Holdco United States Patent and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring Trademark Office or other applicable governmental entity. Any condition specified in the manner this Section 2.1 may be waived in whole or in part by Buyer; provided that no such waiver shall be effective unless it is set forth in the Contribution and Restructuring Agreementa writing executed by Buyer.
Appears in 1 contract
Conditions to Buyer’s Obligations. The obligation obligations of Buyer to consummate the transactions contemplated by under this Agreement is are subject to the satisfaction (or waiver by Buyer in its sole discretion) of the following conditions as of on or prior to the Closing Date, all or any of which may be waived in writing by Buyer:
(a) (i) The representations and warranties of Seller in Section 3.04, Section 3.05, and Section 3.23 shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller shall have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the Closing;
(c) Seller shall have delivered to Buyer a certificate of all documents required to be delivered by Seller, dated the Closing Date and all such documents shall have been properly executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) if applicable. Such documents (forms of which have been satisfied;attached hereto) shall include, without limitation, assignments in recordable form necessary or desirable to convey the Transferred Intellectual Property included in the Acquired Assets and such other documents and instruments, each in a form reasonably satisfactory to Buyer, as may be reasonably requested by Buyer in order to carry out the transaction contemplated by this Agreement and to vest good and marketable title in the Acquired Assets in Buyer, free and clear of all Liens. {*} = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
(db) Seller shall have executed and delivered to Buyer the certificates representing Assignment and Assumption and Xxxx of Sale in the Holdco Equity orform attached hereto as Exhibit A (“Assignment and Assumption and Xxxx of Sale”), if dated and effective as of the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;Closing Date.
(ec) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer Third Party Consents in form and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably substance satisfactory to Buyer; and , effective as of the Closing Date.
(iid) (as applicable) each Company Buyer shall have been released as a borrower or guarantor under any credit facility or indenture (whichreceived all approvals, for the avoidance of doubt, excludes any operating or capital leases) of Seller consents and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC clearances from Governmental Authorities and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code others in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1transactions contemplated by this Agreement deemed necessary by Buyer, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to including receipt by Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of licenses, permits, consents and approvals for Buyer to own and operate the Restructuring Agreement, to which, if any such Permits have not been transferred as of Business after the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring AgreementClosing Date.
Appears in 1 contract
Conditions to Buyer’s Obligations. The obligation obligations of Buyer --------------------------------- to consummate effect the transactions contemplated by this Agreement is Merger shall be subject to the satisfaction (or waiver following conditions, any of which may be waived in writing by Buyer in its sole discretion) of the following conditions as of the Closing DateBuyer:
(a) (i) The representations and warranties of Seller the Company and the Shareholder set forth in Section 3.04, Section 3.05, and Section 3.23 shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 this Agreement shall be true and correct in all material respects as of the date of this Agreement and (disregarding all qualifications or limitations except to the extent such representations and warranties speak as to materiality or “Material Adverse Effect” set forth thereinof an earlier date) as of the Closing Date with the same effect as though made at on and as of the Closing Date; provided, -------- however, that for purposes of determining the satisfaction of the condition ------- contained in this Section 7.1(a), no effect shall be given to any exception in such date (except those representations and warranties that address matters only as of relating to materiality or a specified date or timeCompany Material Adverse Effect, which and such representations and warranties shall be deemed to be true and correct in all material respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where if the failure or failures of such representations and warranties to be so true and correct, individually or correct without regard to materiality and Company Material Adverse Effect exceptions do not represent in the aggregate, would not have aggregate a Company Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09, The Company and Section 5.15, Seller the Shareholder shall have performed and complied in all of the material respects with all agreements, covenants, obligations and agreements conditions required by this Agreement to be performed or complied with by it therein in all respects them at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the ClosingClosing Date;
(c) Seller The Company shall have delivered to Buyer a certificate of Sellercertificate, dated as of the Closing Date Date, signed on behalf of the Company by its Chief Executive Officer and executed by an executive officer Chief Financial Officer confirming the satisfaction of Seller, stating that the conditions specified contained in Section 2.02(aparagraphs (a) and (b) of this Section 2.02(b) have been satisfied7.1;
(d) Seller Buyer shall have delivered received an opinion of Xxxxxxx & Xxxxx LLP, counsel to Buyer the certificates representing Company, dated the Holdco Equity orClosing Date, if substantially in the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyerform attached hereto as Exhibit K;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there There shall not have occurred and be continuing any a Company Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring AgreementChange.
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Conditions to Buyer’s Obligations. The obligation obligations of Buyer to consummate effect the transactions contemplated by this Agreement is Closing shall be subject to the satisfaction (or waiver following additional conditions which may be waived in writing by Buyer in its sole discretion) of the following conditions as of the Closing DateBuyer:
(a) (i) The representations and warranties of Seller Sellers contained in Section 3.04, Section 3.05, and Section 3.23 this Agreement shall be true and correct in all material respects as of the date of this Agreement and on the Closing Date with the same effect as though made at such time; Sellers shall have performed all obligations and as of such date, (ii) the representations and warranties of Seller in Section 3.08 shall be true and correct complied in all material respects (disregarding with all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) as of the Closing Date with the same effect as though made at covenants and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller shall have performed all of the covenants, obligations and agreements conditions required by this Agreement to be performed or complied with by it therein in all respects them at or prior to the ClosingClosing Date; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the Closing;
(c) Seller Sellers shall have delivered to Buyer a certificate of Seller, dated the Closing Date and executed signed in their respective names and on their respective behalf by an their respective chief executive officer and principal financial officer to the foregoing effect to the best knowledge of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfiedsuch officers;
(db) Seller shall have delivered Opinions of O'Melveny & Xxxxx, counsel to Buyer Sellers, and of Sellers' in- house counsel, covering the certificates representing the Holdco Equity ormatters contemplated by Exhibit A-1 and A-2, if the Holdco Equity is not certificatedrespectively, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(gc) Since During the period from the date of this AgreementAgreement to the Closing Date, there shall not have occurred been any material adverse change in Bank and be continuing the Bank Subsidiaries taken as a whole or any Material Adverse Effectinjunctions, orders, judgments or decrees which are material to Bank and the Bank Subsidiaries taken as a whole and Buyer shall have received a certificate dated the Closing Date signed by the chief executive officer and the chief financial officer of Bank attesting to such fact to the best knowledge of such officers;
(hd) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in In connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1any Requisite Regulatory Approvals, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 no Buyer's Burdensome Conditions shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreementimposed.
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Conditions to Buyer’s Obligations. The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to the satisfaction (or waiver by Buyer in its sole discretion) of the following conditions as of the Closing Date:
(a) (i) The representations and warranties set forth in (i) Article III and Article IV (other than those representations and warranties that address matters as of Seller in Section 3.04, Section 3.05, and Section 3.23 particular dates) shall be true and correct in all respects at and as of the Closing Date with the same effect as though then made at and as though the Closing Date was substituted for the date of this Agreement throughout such representations and warranties (without giving effect to materiality, Material Adverse Effect, or similar phrases in the representations and warranties) and (ii) Article III and Article IV that address matters as of particular dates shall be true and correct as of such datedates (without regard to materiality, Material Adverse Effect, or similar phrases in the representations and warranties), except where the facts or circumstances that cause the failure of such representations and warranties referenced in the immediately preceding clauses (i) and (ii) to be so true and correct would not by themselves, in the representations and warranties of Seller in Section 3.08 aggregate, constitute a Material Adverse Effect; provided, that notwithstanding the foregoing, the Fundamental Representations made by the Company shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) at and as of the Closing Date with the same effect as though then made at and as though the Closing Date was substituted for the date of this Agreement throughout such date (Fundamental Representations, except those representations with respect to Article 4.04 and warranties that address matters only as the first sentence of a specified date or timeArticle 4.07, which shall be true and correct in all respects as of that specified date or time) written, at and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and (other than those Fundamental Representations that expressly address matters as of such date (except those representations and warranties that address matters only as of a specified date or timeparticular dates, which shall be true and correct in all respects as of that specified date or timesuch dates), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09, The Company and Section 5.15, Seller shall have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations the covenants and agreements required to be performed by it them under this Agreement at or prior to the Closing, except to the extent of changes or developments contemplated by the terms of this Agreement or caused by the transactions contemplated hereby;
(c) Seller shall have delivered to Buyer the stock certificates representing the Shares, in each case accompanied by duly executed stock powers;
(d) The Company shall have delivered to Buyer each of the following:
(i) a certificate of Sellerthe Company, dated the Closing Date and executed by an executive officer of SellerDate, stating that the conditions preconditions specified in Section Article 2.02(a) and Section 2.02(b(b) above as they relate to the Company have been satisfied;
(dii) Seller shall have delivered to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets certified copies of the Companies shall have been discharged resolutions duly adopted by the Company’s board of directors (or equivalent governing body) authorizing the execution, delivery and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date performance of this AgreementAgreement and the other agreements contemplated hereby, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy the consummation of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2)all transactions contemplated hereby; and
(kiii) The Restructuring a duly executed and acknowledged certificate, in compliance with the Code and regulations promulgated thereunder, certifying such facts as described in to establish that the sale of Shares and any other transactions contemplated hereby are exempt from withholding pursuant to Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 1445 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring AgreementCode.
Appears in 1 contract
Samples: Stock Purchase Agreement (Pinnacle Foods Finance LLC)
Conditions to Buyer’s Obligations. The Close of Escrow and Buyer's obligation to consummate the transaction contemplated by this Agreement are subject to the satisfaction of the following conditions for Buyer's benefit (or Buyer's written waiver thereof, it being agreed that Buyer may waive in writing any or all of such conditions) on or prior to the dates designated below for the satisfaction of such conditions. Notwithstanding anything in this Agreement to the contrary, it is expressly agreed by and between the parties that Buyer's obligation to consummate the transactions contemplated by this Agreement is shall be subject to the satisfaction of all conditions to the obligations of the parties set forth in that certain Stock Purchase Agreement ("STOCK PURCHASE AGREEMENT"), dated currently herewith, by and between Buyer on the one hand and Willxxx X. Xxxxx, Xxnaxx X. Xxxxx, Xxsexx X. XxXxx, xxd Somerset, Incorporated, a California corporation, on the other hand. In the event that Buyer terminates this Agreement pursuant to the terms of this Paragraph 7.1, or waiver by Buyer terminates the Stock Purchase Agreement pursuant to Article X thereof, or Buyer disapproves any of the matters set forth in its sole discretion) this Paragraph 7.1, or one or more of the following conditions as to Buyer's obligations to acquire the Property has not been satisfied or waived on or before the Close of Escrow, the Escrow created pursuant hereto shall terminate and Buyer shall be entitled to the return of the Closing Date:
(a) (i) The representations and warranties of Seller in Section 3.04, Section 3.05, and Section 3.23 shall be true and correct in Deposit together with all respects as of the Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller shall have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the Closing;
(c) Seller shall have delivered to Buyer a certificate of Seller, dated the Closing Date and executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfied;
(d) Seller shall have delivered to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreementaccrued thereon.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Childrens Comprehensive Services Inc)
Conditions to Buyer’s Obligations. The following will be conditions precedent to BUYER’s obligation of Buyer to consummate the transactions contemplated by this Agreement purchase each Aircraft from SELLER (it being understood that SELLER’s obligation to sell such Aircraft is subject to the satisfaction (or waiver by Buyer in its sole discretion) of the following conditions set forth in Article 6.2):
6.1.1 Such Aircraft and certain information relating to such Aircraft conforms to the description set forth in Exhibit A (as amended, supplemented or otherwise modified as of the Closing Sale Date:, including any change disclosed by SELLER in a Disclosure Letter); provided that such Aircraft and information need not conform to the description set forth in Exhibit A to the extent resulting from any action taken by the Lessee pursuant to the Lease and (if relating to an Engine) in accordance with BUYER’s right to consent to such Engine (if any) pursuant to Article 3.3.
6.1.2 BUYER is satisfied that, upon Sale of such Aircraft, SELLER will be able to deliver and warrant to BUYER good and marketable title to such Aircraft, free and clear of all Security Interests (including, without limitation, discharges with respect thereto) whatsoever other than Permitted Liens.
6.1.3 SELLER has delivered to BUYER (a) (i) The representations and warranties a certificate signed by an officer of Seller in Section 3.04, Section 3.05, and Section 3.23 shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date, (ii) SELLER stating that the representations and warranties of Seller contained in Section 3.08 shall be Article 12 and Exhibit F are true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) accurate on and as of the Closing Sale Date with the same effect as though made at on and as of such date (except those to the extent that such representations and warranties are expressed to relate solely to an earlier date, and except to the extent that address matters such representations and warranties relate to an Aircraft other than the Aircraft to be sold on such Sale Date), (b) an incumbency certificate signed by an officer of SELLER and each relevant SELLER Entity as to the Person or Persons authorized to execute and deliver this Sale Agreement and the other Operative Documents relating to such Aircraft on behalf of SELLER and such SELLER Entity (as applicable), (c) evidence satisfactory to BUYER that SELLER has all necessary corporate power to enter into and perform, and has taken all necessary corporate steps to approve the entry into and performance of, this Sale Agreement and the transactions contemplated hereby, (d) with respect to each relevant SELLER Entity, a guarantee by SELLER of such SELLER Entity’s obligations under the Operative Documents to which such SELLER Entity is a party and (e) a legal opinion from in-house counsel to SELLER and, if any relevant SELLER Entity is organized under the laws of any jurisdiction other than California, of such law firm in such jurisdiction as BUYER may approve (acting reasonably), each in the form attached in Exhibit H (with such changes as may be reasonably acceptable to BUYER) or in form and substance reasonably acceptable to BUYER, concerning the execution, delivery and performance of this Sale Agreement and the other Operative Documents entered or to be entered into by SELLER and such SELLER Entities (as applicable) pursuant hereto.
6.1.4 SELLER has delivered to BUYER (a) evidence of insurance with respect to the Aircraft that is in compliance with the requirements described in the applicable Lease Assignment; (b) confirmation from SELLER that it is holding an executed original of each Transaction Document (or, if Exhibit B specifies that a copy only as of a specified date Transaction Document will be provided, a copy of such Transaction Document certified by SELLER or time, which shall be the Lessee of such Aircraft as a true and correct complete copy of the original (or, in all respects the case of any Transaction Document not signed by a SELLER Entity, such Transaction Document is true and complete copy of such Transaction Document as received by SELLER), or, if Exhibit B does not specify whether an original or copy of that specified date or timesuch document will be provided, a copy of such Transaction Document) with respect to such Aircraft; and (iiic) evidence in form and substance reasonably satisfactory to BUYER that the financiers of SELLER with respect to such Aircraft will release all their rights, title and interests in and to such Aircraft and the Transaction Documents relating to such Aircraft on or prior to completion of the Sale of such Aircraft.
6.1.5 No Total Loss shall have occurred with respect to such Aircraft or any Engine associated with such Aircraft, nor shall any event have occurred which with the lapse of time and/or the satisfaction of any other condition would give rise to such a Total Loss (unless, in the case of an Engine, it has been replaced as contemplated by Article 3.3).
6.1.6 Such Aircraft shall not have suffered Material Damage or, if it has suffered Material Damage, SELLER and BUYER shall have agreed on a Revised Allocated Sale Price with respect to such Aircraft.
6.1.7 The representations and warranties of Seller SELLER contained in Article III shall be 12 and Exhibit F are true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 accurate on and Section 3.15(b)) as of the Closing Sale Date with the same effect as though made at on and as of such date (except those representations and warranties to the extent that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties are expressed to relate solely to an earlier date, and except to the extent that such representations and warranties relate to an Aircraft other than the Aircraft to be true sold on such Sale Date).
6.1.8 The Lease Assignment and correcteach other Operative Document for such Aircraft have been executed and delivered by all parties thereto (other than BUYER), individually or and all of the conditions precedent in the aggregateLease Assignment to the obligations of BUYER shall have been satisfied or waived.
6.1.9 BUYER shall be satisfied that Sale at the proposed Delivery Location will not result in any Sales Tax (except for De Minimis Taxes which, when aggregated with Tax Funding Costs associated with such Aircraft (if any), are unlikely to exceed $50,000, or other taxes which it or SELLER has agreed to bear in writing).
6.1.10 No change shall have occurred which would make it illegal for any party hereto or Lessee of the relevant Aircraft to perform any of their respective material obligations under this Sale Agreement or any of the other Operative Documents relating to such Aircraft.
6.1.11 BUYER shall have obtained (at its sole cost and expense) an opinion from legal counsel in the State of Registration of such Aircraft reasonably satisfactory to BUYER (or shall have confirmed that it will obtain such opinion after the Sale to the extent such opinion cannot have a Material Adverse Effect;
(bbe issued prior to the Sale) With respect to: as to (i) Section 5.08, Section 5.09, the effectiveness and Section 5.15, Seller shall have performed all validity of the covenantstransfer of title of such Aircraft to BUYER in such jurisdiction, obligations and agreements required to be performed by it therein (ii) the due registration of such Aircraft in all respects at such jurisdiction, (iii) the release of any Security Interest other than any Permitted Lien that was filed, registered or otherwise recognized in such jurisdiction of registration prior to the Closing; and Sale of such Aircraft (ii) all other covenants, obligations and agreements contained herein, Seller if any).
6.1.12 BUYER shall have performed obtained (at its sole cost and expense) an opinion from legal counsel reasonably satisfactory to it in all material respects all the jurisdiction of organization of the Lessee of such covenants, obligations and agreements required to be performed by it under this Agreement at Aircraft or prior to the Closing;
(c) Seller shall have delivered to Buyer a certificate of Seller, dated the Closing Date and executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfied;
(d) Seller shall have delivered to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall have received other evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released confirmed that it will obtain such opinion or will other evidence after the Sale to the extent such opinion or other evidence cannot be discharged and released contemporaneously issued prior to the Sale) as to the due authorization of such Lessee to enter into the Operative Documents to which it is a party with Closing pursuant respect to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;such Aircraft.
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since 6.1.13 No Change In Law has occurred between the date of this AgreementSale Agreement and the applicable Sale Date of such Aircraft, there which Change In Law causes the relevant Lessee not to be entitled to make all payments to BUYER (or the BUYER Entity which is to be the Lessor of such Aircraft) pursuant to the Lease of such Aircraft free and clear of withholding, sales, VAT or similar Tax; provided that BUYER shall use commercially reasonable efforts to avoid the application of such Taxes by changing the leasing structure used for the relevant Lease or otherwise (so long as the costs of such efforts of BUYER as a result of such Change In Law (“Change in Law Restructuring Costs”) do not exceed $50,000 with respect to such Aircraft (such Change in Law Restructuring Costs to be shared pursuant to Article 8.1(b)), unless SELLER or BUYER agrees to bear such excess cost in writing).
6.1.14 Either (a) the inspection of such Aircraft and the related Transaction Documents contemplated by Article 5.2(b) shall have been completed in accordance with such Article 5.2(b) or (b) BUYER shall have waived its right to make such inspection of such Aircraft.
6.1.15 None of the following shall have occurred and be continuing as of the Sale Date: (a) any payment of Rent (as defined in the Lease of such Aircraft), maintenance reserves or security deposit or other material payment due from the Lessee under the Lease of such Aircraft is unpaid, (b) with respect to each Aircraft other than the Sun Country Aircraft, the applicable Lessee is subject to a bankruptcy, insolvency, reorganization or similar proceeding or has publicly announced that it will become subject to such a proceeding or any other circumstance that would constitute an insolvency- or bankruptcy-related Default or Event of Default under the applicable Lease has occurred and is continuing, (c) with respect to the Sun Country Aircraft, no Sun Country Material Adverse Effect;Change has occurred and is continuing), (d) the applicable Lessee fails to maintain insurance as required under the Lease and (e) any other Event of Default under the Lease of such Aircraft with respect to which SELLER has provided a notice of default to the applicable Lessee.
6.1.16 Between the date hereof and such Sale Date, SELLER (hor the applicable SELLER Entity) Seller has not repossessed such Aircraft from the applicable Lessee and such Lessee has not voluntarily returned the Aircraft early.
6.1.17 Any applicable waiting period under any applicable Competition Laws relating to the transactions contemplated by this Sale Agreement shall have delivered expired or been terminated (to Buyer the extent required under such Competition Laws).
6.1.18 SELLER and each relevant SELLER Entity (a) has established a fully executed copy of valid and existing account with the International Registry established pursuant to the Cape Town Convention, (b) has appointed an “administrator” and a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, “professional user” to make any applicable elections pursuant to Section 336(e) of the Code registrations in connection with the sale of the Holdco Equity;applicable Airframes and Engines at such International Registry and (c) if the applicable Aircraft is registered in a jurisdiction that has ratified the Cape Town Convention and the applicable Lease constitutes (or will constitute, after the relevant Lease Assignment is entered into) a registerable “international interest” under the Cape Town Convention, the relevant Lessee has appointed an “administrator” and a “professional user”.
(i) The “Contract Price” (as defined 6.1.19 If the applicable Aircraft is listed on Part B of Exhibit I, BUYER and SELLER shall be in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance compliance with the terms second paragraph of Article 6.5.
6.1.20 Each of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, conditions precedent set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered Exhibit K applicable to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreementsuch Aircraft has been satisfied or BUYER has waived such condition.
Appears in 1 contract
Samples: Aircraft Sale Agreement (International Lease Finance Corp)
Conditions to Buyer’s Obligations. The obligation of Buyer to consummate the transactions contemplated by this Agreement Transactions is subject to the satisfaction (or waiver in writing by Buyer in its sole discretionBuyer) of each of the following conditions as of at the Closing DateClosing:
(a) (i) The the representations and warranties set forth in ARTICLE III and ARTICLE IV (other than the Fundamental Representations set forth in ARTICLE III and ARTICLE IV and the representation and warranty set forth in clause (ii) of Seller the first sentence of Section 3.07) are true and correct as of the date of this Agreement and as of the Closing Date (disregarding all qualifications or limitations as to “materiality,” “in Section 3.04all material respects” or “Material Adverse Effect” and words of similar import set forth therein) as though such representations and warranties had been made on and as of the Closing Date (except that representations and warranties that are made as of a specified date need be true and correct only as of such date), Section 3.05except in each case under this clause (i), where the fact, event, change, effect, occurrence or development giving rise to the failure of any such representation or warranty to be true and correct has not had, and would not have, individually or in the aggregate, a Material Adverse Effect, (ii) the Fundamental Representations set forth in ARTICLE III and ARTICLE IV are true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though such representations and warranties had been made on and as of the Closing Date, and (iii) the representation and warranty set forth in clause (ii) of the first sentence of Section 3.23 shall be 3.07 are true and correct in all respects as of the Closing Date with the same effect as though made at date of this Agreement and as of such date, (ii) the representations and warranties of Seller in Section 3.08 shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) as of the Closing Date with the same effect as though such representation and warranty had been made at on and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse EffectDate;
(b) With respect to: (i) Section 5.08, Section 5.09, the Company and Section 5.15, Seller shall have performed in all of material respects the covenants, obligations covenants and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations and agreements required to be performed by it them under this Agreement at or prior to the Closing;
(c) since the date of this Agreement there shall not have occurred a Material Adverse Effect;
(d) each of Seller shall and the Company have delivered to Buyer all deliveries required to be made by Seller or the Company pursuant to Section 2.02; and
(e) the Company has delivered to Buyer a certificate of Seller, dated the Closing Date and executed by an executive officer of Sellerthe Company, in the form of Exhibit C and dated as of the Closing Date, stating that the conditions specified set forth in Section 2.02(a) 8.02(a), Section 8.02(b), and Section 2.02(b8.02(c) have been satisfied;
(d) Seller shall have delivered to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreement.
Appears in 1 contract
Conditions to Buyer’s Obligations. The obligation of the Buyer to consummate purchase the transactions contemplated by this Agreement Shares from the Seller is subject to the satisfaction (or waiver by Buyer in its sole discretion) of the following conditions as of the Closing DateClosing:
(a) (i) The the representations and warranties of Seller contained in Section 3.044 shall be, Section 3.05with respect to those representations and warranties qualified by any materiality standard, and Section 3.23 shall be true and correct in all respects as of the Closing Date Date, and with the same effect as though made at and as of such date, (ii) the respect to all other representations and warranties of Seller in Section 3.08 shall be warranties, true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) at and as of the Closing Date with the same effect as though then made, except to the extent of changes caused by the transactions expressly contemplated herein;
(ii) the Seller shall have caused the Company to have made at all filings and obtained all permits, authorizations, consents and approvals required to be obtained by the Company to consummate the transactions contemplated by this Agreement as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and set forth on Schedule 4(b);
(iii) all other representations and warranties the Buyer shall have obtained an opinion of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations Seller's counsel regarding the exemption from registration under the Securities Act of 1933 with respect to Section 3.06 and Section 3.15(b)the transfer of the Shares from the Seller to the Buyer or a written waiver by the Company of all opinion delivery requirements imposed by any legend on the certificates representing the Shares;
(iv) the Buyer shall have received the resignations, effective as of the Closing Date Closing, of each director and officer (other than Arnold Roseman) of the Company and each Subsidiary of the Xxxxxxx;
(v) the Seller shall have caused William G. Knuff, III and Robert E. Dixon to have been nomxxxxxx xx xxxxxxors of the Xxxxxxx;
(xx) the Buyer shall have received evidence reasonably satisfactory to Buyer that the Company has caused each of its Subsidiaries that is a broker-dealer and/or investment advisor to terminate such Subsidiaries' status as a broker-dealer and/or independent advisor in each state or jurisdiction in which such Subsidiary is registered as such;
(vii) the Buyer shall have received from the Seller, at least 15 days prior to the Closing, copies of any correspondence or comments from the NASD or any state, federal and local governments (and all agencies thereof) with respect to any complaint or investigation of Shochet Securities, Shochet Investment Advisors Corp. or any other Subsidiary of the same effect as though made at Company referred to in the Schedules and all other correspondence or comments received after the date of this Agreement;
(viii) the Buyer shall have received evidence reasonably satisfactory to Buyer that (A) Shochet Securities, Inc. has paid to Seller an aggregate amount equal to $44,109.00, such amount representing all amounts due under the Intercompany Services Agreement and (B) the Intercompany Services Agreement has been terminated and neither the Company nor any of its Subsidiaries owes any Person any amount thereunder;
(ix) the Buyer shall have received the Engagement Letter;
(x) each employment agreement (other than the employment agreement of Arnold Roseman) between the (i) Company and a Company employee and (xx) a Subsidiary of the Company and an employee of such Subsidiary, including without limitation, the employment agreements of Roger Gladstone, David Greenberg and Andrew Lockwood shall xxxx xxxx xxxxxnaxxx xx xxxxx xxtisfaxxxxx xx Xxxxx;
(xi) the Seller shall have caused the Company to deliver to Buyer documents, reasonably satisfactory to Buyer (i) evidencing the Estimated Cash Amount and (ii) that will serve to remove as of such date (except those representations and warranties that address matters only the Closing, all signatories to the Company Cash Accounts immediately prior to the Closing as of a specified the date or timehereof and replace such signatories with Robert E. Dixon and William G. Knuff, which shall be true and correct in III;
(xii) the Sellxx xxxxx xxxx xaused xxx Xxxxxxx xx transfer to the Company's new directors all respects as of that specified date or timedocuments, books, records (including tax records), except where agreements, and financial data of the failure of Company; provided that Seller shall not have to deliver such representations documents, books, records agreements and warranties financial data to be true and correct, individually or a place other than the property described in the aggregateBoca Lease;
(xiii) the Buyer shall have received evidence reasonably satisfactory to the Buyer that any account (other than the accounts set forth on Schedule 4(j)) of a broker-dealer and/or investment advisor customer of the Company or its Subsidiaries has been terminated;
(xiv) since the date hereof, there shall have been no fact, event or circumstance which would not reasonably be expected to have a Material Adverse Effect;
(bxv) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller shall have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the Closing;
(c) Seller shall have delivered to the Buyer a certificate of an officer of the Seller, dated as of the Closing Date and executed by an executive officer of SellerDate, stating that the conditions specified in Section 2.02(a2(c)(i) and Section 2.02(b(xiv) have been satisfied;
(dxvi) Seller shall have delivered to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf a copy of Buyer and applicable federal and state securities law restrictionsSchedule 14(f) and all Liens (other than Permitted Liensevidence that such Schedule 14(f) on any property or assets of was filed with the Companies shall have been discharged SEC and released or will be discharged and released contemporaneously with mailed to the Company's shareholders at least 10 days prior to the Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its AffiliatesDate;
(fxvii) The Transition Services Agreement the Buyer shall have been a received copy of the Escrow Agreement executed by PIC Seller and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring AgreementEscrow Agent.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Sutter Holding Co Inc)
Conditions to Buyer’s Obligations. The obligation of Buyer to consummate take the transactions contemplated actions required to be taken by this Agreement it at the Closing is subject to the satisfaction or waiver, in whole or in part, in the sole discretion of Buyer (but no such waiver will waive any right or waiver by Buyer in its sole discretion) remedy otherwise available under this Agreement), of each of the following conditions as of at or prior to the Closing DateClosing:
(a) (i) The representations and warranties of the Company and Seller set forth in Section 3.04Sections 3.1, Section 3.053.2, 3.3, 4.1, 4.2 and Section 3.23 4.4 and any representations and warranties of the Company set forth in this Agreement that are qualified as to materiality shall be true and correct in all respects as of though then made and as though the Closing Date with had been substituted for the same effect as though made at date of this Agreement in such representations and as of such date, (ii) the warranties. All other representations and warranties set forth in Articles III and IV of Seller in Section 3.08 shall this Agreement were true and correct when made and will be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) as of the Closing Date with the same effect as though then made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of though the Closing Date with had been substituted for the same effect as though made at and as date of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct this Agreement in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually (in each case without taking into account any supplemental disclosures after the date of this Agreement by Seller or in the aggregate, would not have a Material Adverse EffectCompany or the discovery of information by Buyer);
(b) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller shall will have performed all and complied with each of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and his agreements contained herein, Seller shall have performed in this Agreement in all material respects all of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the Closingrespects;
(c) Seller shall will have delivered to Buyer a certificate obtained all of Seller, dated the Closing Date and executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfiedRequired Consents;
(d) Seller shall Buyer will have delivered obtained each Governmental Authorization required to Buyer operate the certificates representing business of the Holdco Equity or, if Company in the Holdco Equity is not certificated, duly executed transfer instruments conveying manner it was operated prior to the Holdco Equity Closing Date and as proposed to Buyerbe conducted;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each The Company shall have been released as provided to Seller a borrower or guarantor under any credit facility or indenture (which, for satisfactory Phase 1 environmental study on the avoidance of doubt, excludes any operating or capital leases) of Seller and its AffiliatesCompany’s facility;
(f) The Transition Services Buyer will have received evidence satisfactory to it that no Litigation is pending or threatened (i) challenging or seeking to prevent or delay consummation of any of the transactions contemplated by this Agreement shall have been executed and the Buyer Option Agreement, (ii) asserting the illegality of or seeking to render unenforceable any material provision of this Agreement, the Buyer Option Agreement or any of the Ancillary Agreements, (iii) seeking to prohibit direct or indirect ownership, combination or operation by PIC Buyer of any portion of the business or assets of the Company, or to compel Buyer or any of its Subsidiaries or the Company to dispose of, or to hold separately, or to make any change in any portion of the business or assets of Buyer or its Subsidiaries or of the Company, as a result of the transactions contemplated by this Agreement and delivered the Buyer Option Agreement, or incur any burden, (iv) seeking to Buyerrequire direct or indirect transfer or sale by Buyer of, or to impose material limitations on the ability of Buyer to exercise full rights of ownership of, any of the Shares or (v) imposing or seeking to impose material damages or sanctions directly arising out of the transactions contemplated by this Agreement or the Buyer Option Agreement on Buyer or the Company or any of their respective officers or directors;
(g) Since No Law or Governmental Order will have been enacted, entered, enforced, promulgated, issued or deemed applicable to the date transactions contemplated by this Agreement or the Buyer Option Agreement by any Governmental Entity that would reasonably be expected to result, directly or indirectly, in any of this Agreement, there shall not have occurred and be continuing any Material Adverse Effectthe consequences referred to in Section 8.1(e);
(h) Seller shall No Material Adverse Effect will have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equityoccurred;
(i) The “Contract Price” (No Person will have asserted or threatened that, other than as defined set forth in the Subject ContractDisclosure Schedule, such Person (i) in effect as of January 1is the owner of, 2016 shall have been established in accordance with or has the terms right to acquire or to obtain ownership of, any capital stock of, or any other voting, equity or ownership interest in, the Company or (ii) is entitled to all or any portion of the Subject ContractPurchase Price;
(j) Buyer will have received from counsel for Seller shall have delivered and the Company a written opinion, dated as of the Closing Date, addressed to Buyer a certificate of non-foreign status meeting and satisfactory to Buyer’s counsel, in the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); andform set forth in Exhibit I;
(k) The Restructuring as described in Section 5.14 shall be completed Buyer, one of its Subsidiaries and/or the Company will have entered into an Employment Agreement and Non-Competition Agreement with Seller, in the manner set forth forms of Exhibit J and Exhibit E, respectively, such agreements will be in full force and effect and none of such Persons will have indicated any intention of not fulfilling his or her obligations under any such agreement;
(l) The Company will have entered into Proprietary Information Agreements with Seller, Xxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxxx, in the Contribution and Restructuring Agreement form of Exhibit K;.
(other than with respect to (im) the transfer of all Permits listed on Schedule 1(g)-3 The Company will have delivered each of the Restructuring Agreementagreements, certificates, instruments and other documents that it is obligated to whichdeliver pursuant to Section 2.5(c)(i), if and such agreements so delivered will be in full force and effect;
(n) The Company will not have been, or will not have been threatened to be, materially adversely affected in any such Permits have not been transferred way as a result of fire, explosion, disaster, accident, labor dispute, any action by any Governmental Entity, flood, act of war, terrorism, civil disturbance or act of nature;
(o) Not more than 5% of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery full time employees of the Subsidence Rights Company and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer none of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion members of the Restructuring in senior management team of the manner set forth in the Contribution and Restructuring Agreement.Company (excluding Xxxxxxx X.
Appears in 1 contract
Conditions to Buyer’s Obligations. The obligation of Buyer to consummate take the transactions contemplated actions required to be taken by this Agreement it at the Closing is subject to the satisfaction or waiver, in whole or in part, in Buyer's sole discretion (but no such waiver will waive any rights or waiver by Buyer in its sole discretion) remedy otherwise available to Buyer), of each of the following conditions as of at or prior to the Closing DateClosing:
(a) (i) The representations and warranties of Seller set forth in Section 3.04, Section 3.05, and Section 3.23 shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 shall Article III that are not subject to materiality or Material Adverse Effect qualifications will be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) at and as of the Closing Date with the same effect as though then made at and as though the Closing Date had been substituted for the date of this Agreement in such date (except those representations and warranties warranties, except that address matters only any representation or warranty expressly made as of a specified date will only need to have been true on and as of such date, and the representations and warranties set forth in Article III that are subject to materiality or time, which shall Material Adverse Effect qualifications will be true and correct in all respects as of that specified date or time) at and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though then made at and as though the Closing Date had been substituted for the date of this Agreement in such representations and warranties, except that any representation or warranty expressly made as of a specified date will only need to have been true on and as of such date (except those representations and warranties that address matters only as without taking into account any supplemental disclosures after the date of a specified date or time, which shall be true and correct in all respects as of that specified date or timethis Agreement by the Seller), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, The Seller shall will have performed all and complied with each of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and its agreements contained herein, Seller shall have performed in this Agreement in all material respects all of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the Closingrespects;
(c) Seller shall Buyer will have delivered received evidence reasonably acceptable to it that no litigation is pending or threatened (i) challenging or seeking to prevent or delay consummation of any of the transactions contemplated by this Agreement, (ii) asserting the illegality of or seeking to render unenforceable any material provision of this Agreement or any of the ancillary agreements, (iii) imposing or seeking to impose material damages or sanctions directly arising out of the transactions contemplated by this Agreement on Buyer a certificate or any of Seller, dated its officers or directors or with respect to any portion of the Closing Date and executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfiedPurchased Assets;
(d) Seller shall The Buyer will have delivered received aggregate proceeds of at least $750,000 for the sale of no more than 750,000 shares of Buyer Preferred Convertible Shares to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to BuyerTransferring Employees;
(e) The Buyer shall will have received evidence reasonably satisfactory to it that: (i) all Liens on that the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets Seller has received an executed copy of the Companies shall have been discharged IPIX Corporation Employee Certificate, in the form attached hereto as Exhibit H from each of Sarah Pate and released or will be discharged Paul Farmer and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; an executed copy of the IPIX Corpoxxxxxx Xxxloyee Xxxxxxxxxxal Property Certificate in the form attached hereto as Exhibit I from each of Scott Lewis and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its AffiliatesRobert Dominy;
(f) The Transition Services Buyer will have entexxx xxxx xx Invexxxxx Xxxxxxxent Agreement shall have been executed by PIC and delivered to Buyerin substantially the form attached hereto as Exhibit J with each of the Transferring Employees;
(g) Since After the date of this Agreement, there shall not have occurred and be continuing any no Material Adverse EffectEffect will have occurred;
(h) Seller shall No Person will have delivered asserted or threatened that, other than as set forth in the Disclosure Schedule, such Person (i) is the owner of, or has the right to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Companyacquire or to obtain ownership of, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) material of the Code in connection with Purchased Assets which would materially impair the sale value of the Holdco EquityPurchased Assets or (ii) is entitled to a material portion of the Purchase Price;
(i) The “Contract Price” (as defined in the Subject Contract) in effect Buyer will not have discovered any fact or circumstance existing as of January 1, 2016 shall have been established in accordance with the terms date of this Agreement not disclosed on the Subject Contract;Disclosure Schedule that constitutes a Material Adverse Effect; and
(j) The Seller shall will have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 each of the Restructuring Agreementcertificates, instruments and other documents that it is obligated to which, if any such Permits have not been transferred as of the Closing, the provisions of deliver pursuant to Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreement2.2.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ipix Corp)
Conditions to Buyer’s Obligations. The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to the satisfaction (or waiver by Buyer in its sole discretion) of the following conditions as of the Closing DateClosing, any one or more of which may be waived by Buyer:
(a) (i) The representations and warranties of Seller set forth in Section 3.04, Section 3.05, Article III and Section 3.23 Article V which are not Specified Representations shall be true and correct in all respects at and as of the Closing Date with the same effect as though then made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) as of the Closing Date with the same effect as though made at and as of such date (except other than those representations and warranties that address matters only as of a specified date or time, particular dates which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or timeparticular dates), except where the failure of such representations and warranties to be so true and correctcorrect (disregarding, for this purpose, any Material Adverse Effect qualifiers contained in such representations and warranties) would not, individually or in the aggregate, would not have a Material Adverse Effect, and the Specified Representations set forth in Article III and Article V that are not qualified as to materiality or words of similar import shall be true and correct in all material respects at and as of the Closing as though then made and such Specified Representations that are qualified as to materiality or words of similar import shall be true and correct in all respects at and as of the Closing as though then made;
(b) With respect to: (i) Section 5.08, Section 5.09, The Sellers and Section 5.15, Seller the Company shall have each performed in all material respects all of the covenants, obligations covenants and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations and agreements required to be performed by it them under this Agreement at or prior to the Closing;
(c) Seller The applicable waiting period under the HSR Act relating to the transactions contemplated hereby shall have delivered to Buyer a certificate of Seller, dated the Closing Date and executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) expired or have been satisfiedterminated;
(d) Seller No judgment, decree or order shall have delivered been entered which would prevent the performance of this Agreement or the consummation of any material part of the transactions contemplated hereby, declare void or unlawful the transactions contemplated by this Agreement or cause such transactions to Buyer be rescinded, and there shall not have been commenced any Proceeding brought by any Governmental Entity involving any challenge to, or seeking damages or other relief in connection with, any of the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyertransactions contemplated by this Agreement;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any a Material Adverse Effect;
(f) Each Contract listed on the Terminated Contracts Schedule will have expired or been terminated without any payment being made, or liability or obligation incurred (other than with respect to the provisions of such Contracts that survive the termination thereof), in connection therewith;
(g) Each of the Noncompete Agreements shall remain in full force and effect and shall not have been repudiated or terminated;
(h) Seller Buyer shall have delivered to Buyer a fully received the Deed of Assignment, duly executed copy of a binding written agreement between PIC by the Sellers and Peabody Natural Resources the Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” Company shall have delivered to Buyer each of the following:
(as defined i) a certificate of the Company in the Subject Contractform set forth in Exhibit C-1, dated the Closing Date, stating that the preconditions specified in subsections (a) in effect and (b) above, as of January 1they relate to the Company, 2016 shall have been established in accordance with the terms of the Subject Contractsatisfied;
(jii) Seller at least two (2) Business Days prior to the Closing Date, appropriate payoff letters, together with evidence of arrangements to deliver UCC-3 termination statements or similar documents evidencing the termination of all Liens, security interests, mortgages and other encumbrances held by the lenders under Closing Indebtedness, and final invoices in respect of all Transaction Expenses not paid prior to the Closing;
(iii) (A) a statement with respect to Aesynt Holdings, Inc. (in such form as may be reasonably requested by counsel to Buyer) conforming to the requirements of Treas. Reg. Sections 1.897-2(h)(1)(i) and 1.1445-2(c)(3) that shall not be dated earlier than 20 days before the Closing Date; and (B)(1) the notification required under Treas. Reg. Section 1.897-2(h)(2) (the “FIRPTA Notification”) with respect to the Aesynt Holdings, Inc., which shall be executed by the Aesynt Holdings, Inc., and (2) written authorization to permit Buyer to deliver such FIRPTA Notification to the Internal Revenue Service;
(iv) certified copies of the resolutions duly adopted by the Company’s and the Sellers’ respective management boards, each authorizing its 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; and
(v) the Sellers shall each have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner form set forth in Exhibit C-2 dated the Contribution and Restructuring Agreement Closing Date, stating that the preconditions specified in subsections (other than with respect to (ia) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (iib) the receipt of all Consents necessary above, as they relate to effect the Restructuringsuch Seller, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreement.been satisfied; and
Appears in 1 contract
Conditions to Buyer’s Obligations. The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to the satisfaction (satisfaction, or waiver by Buyer in its sole discretion) Buyer, of each of the following additional conditions as of immediately prior to the Closing DateClosing:
(a) (i) The Each of the representations and warranties of Seller the Sellers, Blockers and the Company contained in Section 3.04Article 4, Section 3.05, Article 5 and Section 3.23 Article 6 of this Agreement (a) that is qualified as to or by Company Material Adverse Effect shall be true and correct in all respects as of the Closing Date with the same effect as though if made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) as of the Closing Date with the same effect as though made at and anew as of such date (except those representations to the extent any such representation and warranties that address matters only warranty expressly relates to an earlier date (in which case as of a specified date such earlier date)), except to the extent of changes or timedevelopments contemplated by the terms of this Agreement or caused by the transactions contemplated hereby, which and (b) that is not qualified as to or by Company Material Adverse Effect shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though if made at and anew as of such date (except those representations to the extent any such representation and warranties that address matters only warranty expressly relates to an earlier date (in which case as of a specified date or time, which shall be true and correct in all respects as of that specified date or timesuch earlier date)), except where to the extent of changes or developments contemplated by the terms of this Agreement or caused by the transactions contemplated hereby and except for the failure of such representations and warranties referred to in this clause (b) to be true and correctcorrect as does not and would not reasonably be expected, individually or in the aggregate, would not to have a Company Material Adverse Effect;
(bii) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller shall have performed all Each of the covenants, obligations covenants and agreements required of the Sellers, Blockers and the Company to be performed by it therein in all respects at as of or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller Closing shall have been performed in all material respects all of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the Closingrespects;
(ciii) Seller The Company shall have delivered to Buyer a certificate in the form of Seller, Exhibit D attached hereto dated the Closing Date and executed signed by an a senior executive officer of Seller, stating that the conditions specified Company on behalf of the Company confirming the foregoing matters in Section 2.02(a2B(i) and Section 2.02(b) have been satisfied2B(ii);
(div) Seller The Company shall have delivered to Buyer certified copies of the certificates representing resolutions or consents of the Holdco Equity or, if Company’s board of managers approving the Holdco Equity is not certificated, duly transactions contemplated by this Agreement;
(v) The Indemnity Escrow Agreement shall have been executed transfer instruments conveying by the Holdco Equity Escrow Agent and the Representative and shall have been delivered to Buyer;
(evi) The Adjustment Escrow Agreement shall have been executed by the Escrow Agent and the Representative and shall have been delivered to Buyer;
(vii) Each director, manager and officer of the Company and its Subsidiaries (other than Cedar Crest Clinic, Inc. and StoneCrest Clinic, Inc.) (including the members of their respective boards of directors or other governing bodies) shall have delivered to Buyer a letter of resignation, in form and substance satisfactory to Buyer, effective as of Closing Date;
(viii) Buyer shall have received a payoff letter from the applicable lender with respect to all Closing Net Indebtedness set forth on Section 2B(viii) of the Company Disclosure Letter that (a) reflects the amounts required in order to pay in full all such Closing Net Indebtedness as of the Closing and (b) to the extent such Closing Net Indebtedness is secured by Liens on the property and assets of the Company and its Subsidiaries, upon payment in full of the amounts indicated therein, all such Liens shall be terminated and of no further force and effect; and
(ix) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens that the Persons identified on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e6T(i) of the Code in connection with Company Disclosure Letter as having authority to draw upon or otherwise have access to the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 bank accounts listed thereon shall no longer have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered any authority over or access to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of bank accounts effective upon the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreement.
Appears in 1 contract
Samples: Acquisition Agreement (Acadia Healthcare Company, Inc.)
Conditions to Buyer’s Obligations. The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to the satisfaction (or waiver by Buyer in its sole discretion) of the following conditions as of on or before the Closing Date:
(a) Buyer shall have completed its due diligence examination of the Company's relationship with the Listed Customers and Suppliers and the results of such due diligence examination shall be satisfactory to Buyer in its sole discretion;
(ib) The representations and warranties of Seller set forth in Section 3.04, Section 3.05, and Section 3.23 shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 Article II hereof shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) at and as of the Closing Date with the same effect as though then made at and as though the Closing Date had been substituted for the date of this Agreement throughout such date (except those representations and warranties (without taking into account any disclosures by Seller or the Company of discoveries, events or occurrences arising on or after the date hereof), except that address matters only any such representation or warranty made as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect the date hereof) shall only need to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at have been true on and as of such date date; (except those representations c) Seller and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller shall have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller Company shall have performed in all material respects all of such covenants, obligations the covenants and agreements required to be performed and complied with by it them under this Agreement at or prior to the Closing;
(c) Seller shall have delivered to Buyer a certificate of Seller, dated the Closing Date and executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfied;
; (d) Seller shall have delivered obtained, or caused to Buyer be obtained, each consent and approval necessary in order that the certificates representing the Holdco Equity ortransactions contemplated herein not constitute a breach or violation of, if the Holdco Equity is not certificatedor result in a right of termination or acceleration of, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf creation of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) any encumbrance on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing Company's assets pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of, any agreement, arrangement or undertaking of Section 9.08 hereof shall apply and (ii) or affecting the receipt Company or Seller or any license, franchise or permit of all Consents necessary to effect or affecting the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreement.Company or Seller;
Appears in 1 contract
Conditions to Buyer’s Obligations. Regarding Initial --------------------------------------------------- Receivables. The obligation obligations of Buyer to consummate purchase the transactions contemplated by this Agreement is Transferred Assets on ----------- the RPA Closing Date shall be subject to the satisfaction (or waiver by Buyer in its sole discretion) of the following conditions as of the Closing Dateconditions:
(a) (i) The All representations and warranties of RPA Seller contained in Section 3.04, Section 3.05, and Section 3.23 this Agreement shall be true and correct in all respects as of on the RPA Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 had been made on such date;
(b) All information concerning the Accounts provided to Buyer shall be true and correct as of the RPA Closing Date in all material respects respects;
(disregarding c) RPA Seller shall have delivered or caused to be delivered to Buyer a computer file or microfiche list containing a true and complete list of all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) Accounts identified by account number and by the Receivables balance as of the RPA Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09Date, and Section 5.15, RPA Seller shall have substantially performed all of the covenants, other obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all provisions of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the Closing;
(c) Seller shall have delivered to Buyer a certificate of Seller, dated the Closing Date and executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfiedAgreement;
(d) RPA Seller shall have recorded and filed, at its expense, any financing statement with respect to the Receivables (other than Receivables in Additional Accounts) now existing and hereafter created for the transfer of accounts meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the sale of the Receivables to Buyer, and shall have delivered to Buyer the certificates representing the Holdco Equity ora file-stamped copy of such financing statements or other evidence of such filings (which may, if the Holdco Equity is not certificatedfor purposes of this paragraph, duly executed transfer instruments conveying the Holdco Equity consist of telephone confirmations of such filings) to Buyer;
(e) All corporate and legal proceedings and all instruments in connection with the transactions contemplated by this Agreement shall be satisfactory in form and substance to Buyer, and Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of from RPA Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer copies of all Permits listed on Schedule 1(g)-3 documents (including records of corporate proceedings) relevant to the Restructuring Agreement, to which, if any such Permits transactions herein contemplated as Buyer may reasonably have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreementrequested.
Appears in 1 contract
Conditions to Buyer’s Obligations. The obligation of Buyer to consummate complete the transactions contemplated by this Agreement Closing is subject to the satisfaction (or waiver by Buyer (in its the sole discretiondiscretion of Buyer) of each of the following conditions as of the Closing Date:precedent (in addition to those contained in Section 9.1):
(a) (i) The representations and warranties the sole holder of voting capital stock of Seller in Section 3.04will not have rescinded, Section 3.05, and Section 3.23 shall be true and correct in all respects as purported to have rescinded or otherwise challenged the validity or enforceability of his signature on the Closing Date with the same effect as though made at and as of such date, Written Consent;
(iib) the representations and warranties of Seller and the Seller Shareholders contained in Section 3.08 shall be true and correct in all material respects this Agreement that are (disregarding all qualifications or limitations i) qualified as to materiality or “by reference to a Material Adverse Effect” set forth thereinEffect will be accurate in all respects or (ii) not so qualified will be accurate in all material respects, in each case as of the date of this Agreement and as of the Closing Date with the same effect as though made at and on the Closing Date (without taking into account any disclosures of discoveries, events or occurrences arising on or after the date hereof), except that any such representations or warranties which expressly relate to an earlier date need only have been accurate as of such date date;
(except those representations c) Seller and warranties that address matters only as of a specified date or time, which shall be true and correct the Seller Shareholders will have performed in all material respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as each of the obligations they are required to perform at or prior to the Closing Date with the same effect as though made at and as of such date Date;
(except those representations and warranties that address matters only as of a specified date d) no change, effect, event, violation, inaccuracy, circumstance or time, condition will have occurred or will exist which shall has had or would reasonably be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties expected to be true and correct, individually or in the aggregate, would not have a Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller shall have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the Closing;
(c) Seller shall have delivered to Buyer a certificate of Seller, dated the Closing Date and executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfied;
(d) Seller shall have delivered to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall will have received evidence reasonably the Title Policy or a suitably marked up Commitment referenced in Section 7.5(c) and the same, as well as the survey for the Owned Real Estate, shall be satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyerin its sole discretion; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;and
(f) The Transition Services Agreement shall Buyer will have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) received all of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1certificates, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described Required Consents and other documents specified in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreement3.2.
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Samples: Asset Purchase Agreement (Toro Co)
Conditions to Buyer’s Obligations. The obligation obligations of Buyer to consummate the transactions contemplated by this Agreement is are subject to the satisfaction (or or, if permitted by applicable Law, waiver by Buyer in its sole discretionwriting) of the following conditions as of the Closing Date:
(a) As certified in a closing certificate delivered by the Seller Representative at the Closing (i) The representations and warranties of the “Seller in Section 3.04Closing Certificate”), Section 3.05, and Section 3.23 the Fundamental Representations shall be true and correct in all material respects at and as of the date hereof and the Closing Date with the same effect as though made at and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case only as of such date, ) and (ii) the all other representations and warranties of Seller the Company contained in Section 3.08 Article III of this Agreement shall be true and correct in all material respects (disregarding all qualifications in the case of any representation or limitations as to materiality warrant not qualified by “materiality” or “Material Adverse Effect” set forth therein”) as of the date hereof and the Closing Date with the same effect as though made at and as of such date the Closing Date (except those representations and warranties that address matters to the extent expressly made as of an earlier date, in which case only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(bdate)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09, Sellers and Section 5.15, Seller shall the Company will have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed complied with in all material respects all of such covenants, obligations the covenants and agreements required to be performed by it under this Agreement at or prior to the Closing;
(c) Seller shall No judgment, decree or order will have been entered that prevents the performance of this Agreement or the consummation of any of the transactions contemplated hereby, declares unlawful the transactions contemplated by this Agreement or causes such transactions to be rescinded;
(d) There will not have been a Company Material Adverse Effect since the date hereof;
(e) The Company will have delivered to Buyer a certificate of Selleran authorized officer of the Company in his or her capacity as such, dated as of the Closing Date and executed by an executive officer of SellerDate, stating that the conditions specified in Section 2.02(a7.01(a), Section 7.01(b) and Section 2.02(b7.01(d) have been satisfied;
(d) Seller shall have delivered to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Company will have delivered a fully executed Xxxxx Employment Agreement shall have been executed by PIC and delivered to BuyerTermination;
(g) Since Sellers shall have delivered each of the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;Required Consents; and
(h) Each Seller shall have executed and delivered any Transaction Document to Buyer which such Seller is a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreementparty.
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Conditions to Buyer’s Obligations. The obligation obligations of Buyer to consummate the transactions contemplated by this Agreement is shall be subject to the satisfaction (fulfillment or written waiver by Buyer in its sole discretion) Buyer, at or prior to the Closing, of each of the following conditions as of the Closing Dateconditions:
(a) (i) The representations and warranties of Seller Sellers set forth in ARTICLE V of this Agreement shall be true and correct when made and at and as of the Closing Date as though made on the Closing Date, other than the representations and warranties made as of a specified date, in which case such representations and warranties shall be true and correct only as of such specified date, in all cases except where the failure to be true and correct does not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (it being agreed that for purposes of this Section 8.2(a) all representations and warranties (except for Section 5.1, Section 5.2, Section 5.3, Section 5.15) shall be deemed not to be qualified by any reference to material, materiality or Material Adverse Effect contained therein); provided, however, that (i) the representations and warranties set forth in Section 3.045.1, Section 3.055.2, and Section 3.23 5.3 shall be true and correct in all respects when made and at and as of the Closing Date with the same effect as though made at on the Closing Date, and as of such date, (ii) the representations and warranties of Seller set forth in Section 3.08 5.15 shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) when made and at and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of on the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse EffectDate;
(b) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller Sellers shall have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed complied with in all material respects all of such covenants, obligations agreements and agreements covenants required by this Agreement to be performed or complied with by it under this Agreement them at or prior to the Closing;
(c) Prior to or at the Closing, each Seller shall have delivered to Buyer a certificate of Seller, dated the Closing Date and executed signed by an executive officer of Sellersuch Seller dated the Closing Date, stating that to the effect that, to the knowledge of such officer (but without personal liability therefor), the conditions specified in Section 2.02(a8.2(a) and Section 2.02(b8.2(b) have been satisfied;
(d) Seller There shall have delivered be no Action pending in which any Governmental Authority is a party wherein an unfavorable injunction, judgment, restraining order, ruling, charge or decree of any nature would reasonably be expected to, (i) prohibit, enjoin or prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (iii) affect materially adversely the right of Buyer to own the certificates representing Purchased Assets, the Holdco Equity orAnalytical Technologies Company Stock or any Joint Venture Interest, if or to operate the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to BuyerAnalytical Technologies Business;
(e) Buyer Sellers shall have received evidence reasonably satisfactory released any Designated Employee from any confidentiality and non-competition agreements and non-solicitation covenants with Parent or its Affiliates to it that: (i) all Liens on the Equity (other than Liens created by extent that such agreements or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of covenants relate to the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its AffiliatesAnalytical Technologies Business;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Agreement no Material Adverse Effect;
(h) Seller Effect shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2)occurred; and
(kg) The Restructuring Buyer shall have received all of the items required to be delivered at Closing as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement Section 4.2(a) (other than with the items contemplated by clause (xi) (except to the extent the relevant Encumbrance relates to the Analytical Technologies Stock or would impair in any material respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 ownership or use of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereofrelevant Asset), including without limitation, the execution clause (xiv) and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments clause (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and xv) thereof) that are not otherwise evidencing the completion of the Restructuring listed above in the manner set forth in the Contribution and Restructuring Agreementthis Section 8.2.
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Conditions to Buyer’s Obligations. The obligation of Buyer to consummate the transactions contemplated by this Agreement Transactions is subject to the satisfaction (or waiver in writing by Buyer in its sole discretionBuyer) of each of the following conditions as of at the Closing DateClosing:
(a) (i) The the representations and warranties set forth in ARTICLE III and ARTICLE IV (other than the Fundamental Representations and the representation and warranty set forth in clause (b) of Seller in the first sentence of Section 3.04, Section 3.05, and Section 3.23 shall be 3.07) are true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality “materiality,” “in all material respects” or “Material Adverse Effect” and words of similar import set forth therein) as though such representations and warranties had been made on and as of the Closing Date with the same effect as though made at and as of such date (except those that representations and warranties that address matters only are made as of a specified date or time, which shall need be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and only as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or timedate), except where the failure of such representations in each case under this clause (i), as has not had, and warranties would not reasonably be expected to be true and correcthave, individually or in the aggregate, would not have a Material Adverse Effect, (ii) the Fundamental Representations set forth in ARTICLE III and ARTICLE IV are true and correct in all material respects as of the Closing Date as though such representations and warranties had been made on and as of the Closing Date, and (iii) the representation and warranty set forth in clause (b) of the first sentence of Section 3.07 is true and correct as of the Closing Date as though such representation and warranty had been made on and as of the Closing Date;
(b) With respect to: (i) Section 5.08, Section 5.09, the Company and Section 5.15, Seller shall Sellers have performed in all of material respects the covenants, obligations covenants and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations and agreements required to be performed by it them under this Agreement at or prior to the Closing;; and
(c) Seller shall have delivered to Buyer a certificate of Seller, dated the Closing Date and executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfied;
(d) Seller shall have delivered to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since since the date of this Agreement, Agreement there shall not have occurred and be continuing any a Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect Effect that exists as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered immediately prior to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreement.
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Conditions to Buyer’s Obligations. The obligation obligations of Buyer to consummate the transactions contemplated by this Agreement is Transaction shall be subject to the satisfaction (or waiver by Buyer in its sole discretion) of each of the following conditions as conditions, any of the Closing Datewhich may be waived in writing by Buyer:
(a) (i) The For purposes of this Section 6.2(i), the accuracy of the representations and warranties of Seller the Old Mutual Parties set forth in Section 3.04, Section 3.05, and Section 3.23 this Agreement shall be true assessed as of the date of this Agreement and correct in all respects shall be assessed as of the Closing Date with the same effect as though all such representations and warranties had been made at again on and as of the Closing Date (provided that the accuracy of the representations and warranties that speak as of a specific date shall be assessed only as of such date). The representations and warranties set forth in Sections 2.3(a), 2.5, 3.1 and 3.3(a), shall be true and correct. The representations and warranties of the Old Mutual Parties set forth in Articles II, III and VIII of this Agreement (ii) other than the representations and warranties of Seller set forth in Section 3.08 Sections 2.3(a), 2.5, 3.1 and 3.3(a)) shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) as of the Closing Date with the same effect as though made at except for such inaccuracies which do not, and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correctare not reasonably likely to, individually or in the aggregate, would not have result in a Company Material Adverse Effect; provided that for purposes of this sentence, those representations and warranties that are qualified by references to "material," "Company Material Adverse Effect" or variations thereof shall be deemed not to include such qualifications;
(bii) With respect to: (i) Section 5.08Each of the Old Mutual Parties, Section 5.09as applicable, and Section 5.15, Seller shall have performed and complied in all of the material respects with all agreements, covenants, obligations and agreements conditions required by this Agreement to be performed or complied with by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations and agreements required to be performed by it under this Agreement them at or prior to the Closing;
(ciii) Seller The Old Mutual Parties shall have delivered to Buyer a certificate of Sellercertificate, dated as of the Closing Date signed on behalf of the Company by its Chief Executive Officer and executed signed on behalf of Holdings by an executive appropriate senior officer thereof confirming the satisfaction of Seller, stating that the conditions specified contained in Section 2.02(a) and Section 2.02(b) have been satisfied;
(d) Seller shall have delivered to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall have received evidence reasonably satisfactory to it that: paragraphs (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliatesthis Section 6.2;
(fiv) The Transition Services No employee of the Company listed on Exhibit 6.2(iv) who has entered into an Employment Agreement shall have been executed by PIC and delivered to Buyer;
(gA) Since the date of this repudiated his Employment Agreement, there shall not have occurred and be continuing (B) died or become permanently disabled or (C) taken or failed to take any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy action that would constitute "Cause" under his Employment Agreement had such action been taken immediately following the effective time of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equitysuch Employment Agreement;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 Closing Wrap Account Revenue Run-Rate shall have been established in accordance with the terms not be less than 90% of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of nonBase Wrap Account Revenue Run-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2)Rate; and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt Closing Other Account Revenue Run-Rate shall not be less than 70% of all Consents necessary the Base Other Account Revenue Run Rate;
(vi) Buyer shall have received an opinion dated the Closing Date of Weil, Gotshal & Manges LLP, counsel to effect Holdings, substantially in the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitationform attachxx xxxeto as Exhibit B; and The board of trustees of PBHG Funds shall have considered and shall have taken action upon the approval of the Interim Sub-Advisory Agreement, the execution Permanent Sub-Advisory Agreement and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring AgreementPBF Reorganization.
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Conditions to Buyer’s Obligations. The obligation obligations of Buyer to consummate the transactions contemplated by this Agreement is Closing are subject to the satisfaction (or waiver by Buyer in its sole discretionwriting to the extent permitted by Law) of the following conditions as of the Closing Date:
(a) (i) The Each of the representations and warranties of made by Seller and Stockholders in ARTICLE IV (A) that are qualified by “material,” “materiality,” or “Material Adverse Effect” (or any correlative term) or that otherwise contained in Section 3.044.01 (Organization and Qualification of Seller), Section 3.054.02 (Authority), Section 4.09 (Condition and Sufficiency of Assets) and Section 3.23 4.19 (Brokers) (collectively, “Seller Fundamental Representations”) shall be true and correct in all respects, as of the date hereof and the Closing Date, other than representations and warranties made as of a particular date (in which case such representations and warranties shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iiiB) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)those described in the preceding clause (A) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in all material respects, as of the aggregatedate hereof and the Closing Date other than representation and warranties made as of a particular date (in which case such representations and warranties shall be true and correct, would not have a Material Adverse Effectin all material respects, as of such date);
(bii) With respect to: (i) Section 5.08, Section 5.09, Seller and Section 5.15, Seller shall have performed all each of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller Stockholders shall have performed in all material respects all of such covenants, obligations the covenants and agreements that are required to be performed by it such Person under this Agreement at or prior to the Closing;
(ciii) There shall not have been any Material Adverse Effect since the date of this Agreement;
(iv) Buyer shall have received the financial statements of Seller as of and for the periods ended September 30, 2019 and December 31, 2019, which such statements shall be reasonably acceptable to Buyer; and
(v) Seller shall have delivered to Buyer a certificate all of Seller, dated the Closing Date and executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfied;
(d) Seller shall have delivered to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner deliveries set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof3.02(a), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreement.
Appears in 1 contract
Conditions to Buyer’s Obligations. The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to the satisfaction (or waiver by Buyer in its sole discretion) of the following conditions as of the Closing Date:
(a) (i) The representations and warranties of Seller in Section 3.04, Section 3.05, and Section 3.23 the Partnership contained herein shall be true and correct in all respects (without giving effect to any materiality, “Material Adverse Effect” or similar qualification) at and as of the date of this Agreement and at and as of the Closing Date with the same effect as though then made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) as of the Closing Date with the same effect as though made at and as of such date (except other than those representations and warranties that address matters only made as of a specified date or timeparticular date, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or timedate), except where the failure of such representations and warranties to be so true and correctcorrect would not, individually or in the aggregate, would not have a Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller shall have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller The Partnership shall have performed in all material respects all of such covenants, obligations the covenants and agreements required to be performed by it under this Agreement at or prior to the Closing;
(c) Seller The applicable waiting period under the HSR Act shall have expired or have been terminated;
(d) No judgment, decree or order shall have been entered which would prevent the performance of this Agreement or the consummation of any material part of the transactions contemplated hereby, declare void or unlawful the transactions contemplated by this Agreement or cause such transactions to be rescinded;
(e) The Partnership shall have delivered to Buyer each of the following:
(i) a certificate of Sellerthe Partnership in the form set forth in Exhibit B, dated the Closing Date and executed by an executive officer of SellerDate, stating that the conditions specified in Section 2.02(asubsections 3.01(a) and Section 2.02(b(b) above have been satisfied;
(dii) Seller shall have delivered the payoff letters relating to Buyer the repayment of the Indebtedness pursuant to Section 2.05(c) above, together with UCC-3 termination statements or similar documents evidencing the termination of all liens, security interests and other encumbrances held by the lenders under the Indebtedness along with share certificates representing and stock powers (if any) in respect of any equity interests in TCC, the Holdco Equity orPartnership, if TWP LLC, BC1 or BC2 or their Subsidiaries which are subject to security in favor of the Holdco Equity is not certificated, duly executed transfer instruments conveying lenders under the Holdco Equity to BuyerIndebtedness;
(eiii) Buyer shall have received evidence reasonably satisfactory a copy of the Certificate of Limited Partnership of the Partnership certified by the Secretary of State of the State of Delaware and a certificate of good standing from Delaware, in each case dated within five business days of the Closing Date;
(iv) certified copies of the resolutions duly adopted by the Partnership’s General Partner and the requisite number of the Partnership’s Limited Partners authorizing its execution, delivery and performance of this Agreement and the other agreements contemplated hereby to which it that: is a party, and the consummation of all transactions contemplated hereby and thereby; and
(iv) all Liens on an affidavit of the Equity (other than Liens created by Partnership certifying that 50 percent or on behalf more of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or the value of the gross assets of the Companies shall have been discharged Partnership does not consist of U.S. real property interests, and released or will be discharged and released contemporaneously otherwise complying with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its AffiliatesTreasury Regulation Section 1.1445-11T(d)(2);
(f) The Transition Services Agreement Related Transactions shall have been executed by PIC and delivered to occurred; provided, however, that if one or more of the Recapitalization Transactions does not occur at the request, or with the consent, of Buyer, such failure shall not constitute a failure of this condition;
(g) Since The Partnership shall have terminated those contracts and agreements listed on the date of this Agreement, there shall not have occurred and be continuing any Material Adverse EffectTerminated Contracts Schedule;
(h) Seller Yell shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equityreceived Shareholder Approval;
(i) The “Contract Price” Financing shall be available to Yell under the Definitive Financing Documents (as defined or replacement facility contemplated by Section 7.03) sufficient (together with other available cash) to allow Buyer to pay the Merger Consideration and Buyer’s related costs (it being understood that Buyer may not assert this condition in the Subject Contract) in effect as of January 1event Yell, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation or Merger Sub has breached its obligation under Section 1.1445-2(b)(27.03); and
(kj) The Restructuring as described in Section 5.14 There shall be completed have been no events, changes or effects, individually or in the manner aggregate, with respect to the Partnership and its Subsidiaries taken as a whole having, or that would reasonably be expected to have, a Material Adverse Effect. If the Closing occurs, all closing conditions set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits this Section 3.01 which have not been transferred fully satisfied as of the Closing, the provisions of Section 9.08 hereof Closing shall apply and (ii) the receipt of all Consents necessary be deemed to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated have been fully waived by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring AgreementBuyer.
Appears in 1 contract
Samples: Merger Agreement (Yell Finance Bv)
Conditions to Buyer’s Obligations. The obligation of Buyer to consummate complete the transactions contemplated by this Agreement Closing is subject to the satisfaction (or waiver by Buyer in its sole discretion) of each of the following conditions as of the Closing Date:precedent (in addition to those contained in Section 8.1):
(a) (i) The representations and warranties of Seller in Section 3.04, Section 3.05, and Section 3.23 shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller the Seller’s contained in Section 3.08 shall this Agreement (i) that are (A) qualified as to materiality or by reference to a Material Adverse Effect will be true and correct accurate in all respects or (B) not so qualified will be accurate in all material respects in each case as of the date of this Agreement (except that any such representations or warranties which expressly relate to an earlier date need only have been accurate as of such date) and (ii) will be accurate in all respects in each case disregarding all qualifications or limitations as to any material, materiality or “Material Adverse Effect” set forth therein) Effect qualifications and in each case as of the Closing Date with the same effect (except that any such representations or warranties which expressly relate to an earlier date need only have been accurate as of such date) as though made at and as of such date on the Closing Date (without taking into account any amendments or supplements made to the Seller Disclosure Schedule pursuant to Section 6.1(d)), except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)this clause (ii) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller shall have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall will have performed in all material respects all each of such covenants, the obligations and agreements it is required to be performed by it under this Agreement perform at or prior to the ClosingClosing Date;
(c) Seller There shall not have delivered occurred after the Latest Balance Sheet Date any event or circumstance that has had or would reasonably be expected to Buyer have a certificate Material Adverse Effect described in subsection (a) of Seller, dated the Closing Date and executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfied;such definition; and
(d) Seller shall will have delivered to Buyer all of the Required Consents and all of the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (and other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described documents specified in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreement3.2.
Appears in 1 contract
Samples: Asset Purchase Agreement (Zep Inc.)
Conditions to Buyer’s Obligations. The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to the satisfaction (or waiver by Buyer in its sole discretion) of the following conditions as of on or before the Closing Date:
(a) (i) The representations and warranties of Seller set forth in Section 3.04, Section 3.05, Article 5 hereof and Section 3.23 shall be true and correct otherwise in all respects as of the Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 this Agreement shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) at and as of the Closing Date with the same effect as though then made, except that any such representation or warranty made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect the date hereof) shall only need to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at have been true on and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse Effectdate;
(b) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller shall have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations the covenants and agreements required to be performed and complied with by it under this Agreement at or prior to the Closing;
(c) MWS Newco and Seller shall have delivered to Buyer entered into a certificate of Seller, dated the Closing Date and executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfiedmutually agreeable agency agreement;
(d) On the Closing Date, Seller shall have delivered to Buyer the certificates representing following:
(1) the Holdco Equity orBxxx of Sale and such other instruments of conveyance, if transfer, assignment, and delivery as Buyer shall have reasonably requested pursuant to Section 4 hereof conveying and assigning the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to BuyerAcquired Assets;
(e2) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on a certified copy of the Equity (other than Liens created by or on behalf resolutions of Buyer the board of directors of Seller authorizing the execution, delivery, and applicable federal and state securities law restrictions) performance of the Agreement and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged documents, instruments, and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliatestransactions contemplated herein;
(f3) The Transition Services Agreement shall have been executed by PIC and delivered a certificate dated not more than ten (10) business days prior to Buyerthe Closing from the Secretary of State of its state of incorporation to the effect that Seller is in good standing;
(g4) Since closing certificates pursuant to which the date Seller represents and warrants to Buyer that its representations and warranties to Buyer are true and correct in all material respects as of the Closing Date as if then originally made and that all covenants required by the terms hereof to be performed by the Seller on or before the Closing Date, to the extent not waived by the Buyer in writing, have been so performed in all material respects;
(5) all other documents and instruments as may be reasonably necessary and required to consummate the transactions contemplated by this Agreement, there shall including, but not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered limited to Buyer assignment certificates as requested on a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated case by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreementcase basis.
Appears in 1 contract
Conditions to Buyer’s Obligations. The obligation obligations of Buyer to consummate the transactions contemplated by this Agreement is hereby shall be subject to the satisfaction (or waiver following conditions, any of which may be waived in writing by Buyer in its sole discretion) of the following conditions as of the Closing DateBuyer:
(a) (i) The representations and warranties of Seller the Company and the Beneficial Owners set forth in Section 3.04this Agreement, Section 3.05taken as a whole, and Section 3.23 shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller in Section 3.08 shall be true and correct in all material respects as of the date of this Agreement and (disregarding all qualifications or limitations except to the extent such representations and warranties speak as to materiality or “Material Adverse Effect” set forth thereinof an earlier date) as of the Closing Date with the same effect as though made at on and as of the Closing Date; provided, however, that for purposes of determining the satisfaction of the condition contained in this Section 5.1(a), no effect shall be given to any exception in such date (except those representations and warranties that address matters only as of relating to materiality, or a specified date or timeCompany Material Adverse Effect, which and such representations and warranties shall be deemed to be true and correct in all material respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where if the failure or failures of such representations and warranties to be so true and correct, individually or correct without regard to materiality and Company Material Adverse Effect exceptions do not represent in the aggregate, would not have aggregate a Company Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09, The Company and Section 5.15, Seller the Beneficial Owners shall have performed and complied in all of the material respects with all agreements, covenants, obligations and agreements conditions required by this Agreement to be performed or complied with by it therein in all respects them at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the ClosingClosing Date;
(c) Seller Since December 31, 1997, no event has occurred which has had or could reasonably be expected to have, individually or in the aggregate with any other event occurring after such date, a Company Material Adverse Effect;
(d) The Approved Managed Asset Amount shall be equal to or greater than 75% of the Initial Managed Asset Amount;
(e) The Company shall have delivered to Buyer a certificate of Sellercertificate, dated as of the Closing Date and executed Date, signed on behalf of the Company by an executive officer the President of Seller, stating that its General Partner confirming the satisfaction of the conditions specified contained in Section 2.02(aparagraphs (a), (b), (c) and Section 2.02(b) have been satisfied;
(d) Seller shall have delivered to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliatesthis Section 5.1;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since Each of the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller Beneficial Owners shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Companycertificate, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred dated as of the ClosingClosing Date, signed by the provisions Beneficial Owner confirming the satisfaction of Section 9.08 hereof shall apply the conditions contained in paragraphs (a), (b), (c) and (iid) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring Agreement.this Section 5.1;
Appears in 1 contract
Conditions to Buyer’s Obligations. The obligation obligations of ---------------------------------- Buyer to consummate the transactions contemplated by this Agreement is Transaction shall be subject to the satisfaction (or waiver by Buyer in its sole discretion) of each of the following conditions as conditions, any of the Closing Datewhich may be waived in writing by Buyer:
(a) (i) The For purposes of this Section 6.2(i), the accuracy of the representations and warranties of Seller the Symphony Parties set forth in Section 3.04, Section 3.05, and Section 3.23 this Agreement shall be true assessed as of the date of this Agreement and correct in all respects shall be assessed as of the Closing Date with the same effect as though all such representations and warranties had been made at again on and as of the Closing Date (provided that the representations and warranties that speak as of a specific date shall speak only as of such date). The representations and warranties set forth in Sections 2.3(a), 2.5, 2.7, 3.1 and 3.3(a) shall be true and correct. The representations and warranties of the Symphony Parties (ii) including the representations and warranties of Seller set forth in Section 3.08 Sections 2.3(a), 2.5, 2.7, 3.1 and 3.3(a)) shall be true and correct in all material respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein) as of the Closing Date with the same effect as though made at except for such inaccuracies which do not, and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correctare not reasonably likely to, individually or in the aggregate, would not have result in a Company Material Adverse Effect; provided, that for purposes of this sentence, those representations and warranties that are qualified by references to "material," "Company Material Adverse Effect" or variations thereof shall be deemed not to include such qualifications;
(bii) With respect to: (i) Section 5.08Each of the Symphony Parties, Section 5.09as applicable, and Section 5.15, Seller shall have performed and complied in all of the material respects with all agreements, covenants, obligations and agreements conditions required by this Agreement to be performed or complied with by it therein in all respects them at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the ClosingClosing Date;
(ciii) Seller The Symphony Parties shall have delivered to Buyer a certificate of Sellercertificate, dated as of the Closing Date Date, signed on behalf of the Company by its Chief Executive Officer and executed Chief Operating Officer, signed on behalf of Parent and each of the Members by an executive appropriate officer and signed by each of Seller, stating that the Company Principals confirming the satisfaction of the conditions specified contained in Section 2.02(a6.2(i) and Section 2.02(b) have been satisfied(ii);
(div) Seller Each of the Parent Agreements and each of the Employment Agreements shall have delivered be in full force and effect immediately upon the Closing and Buyer shall not be aware of any basis that would reasonably be expected to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity cause any of such agreements to Buyercease to be in full force and effect;
(ev) Buyer shall have received evidence reasonably satisfactory opinions dated the Closing Date of Stroock & Stroock & Xxxxx LLP and Shartsis, Xxxxxx & Xxxxxxxx LLP, counsel to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of Company, in the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (form attached hereto as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its AffiliatesExhibit F;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(gvi) Since the date of this AgreementMarch 31, 2001, there shall not have occurred and be continuing been any Company Material Adverse Effect or any development or combination of developments, that, individually or in the aggregate, has had or is reasonably likely to have a Company Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(kvii) The Restructuring as described in Section 5.14 Buyer shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer have received Closing Releases from each of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the ClosingParent, the provisions of Section 9.08 hereof shall apply Company Principals and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring AgreementMembers.
Appears in 1 contract
Conditions to Buyer’s Obligations. The obligation of Buyer to consummate the transactions contemplated by this Agreement is shall be subject to the satisfaction (fulfillment at or waiver by Buyer in its sole discretion) prior to the Closing of each of the following conditions conditions, unless waived by such Party at or prior to the Closing:
(i) the Sellers shall have delivered the certificates representing the POMI Shares, together with duly executed instruments of assignment separate from certificate to the Buyer, together with such other documents as may be necessary for the transfer of record ownership of the POMI Shares to the Buyer on the stock records of POMI;
(ii) The purchase of the sole outstanding share of Proportionate Voting Preferred Stock, par value $0.0001 per share, of POPT by Pacific Office Holding, Inc. shall have been consummated;
(iii) the Advisory Agreement shall have been terminated;
(iv) Sellers shall have delivered to Buyer the resignations of all officers and directors of POMI that are requested by the Buyer, effective as of the Closing Date:;
(av) (i) The Each of the representations and warranties of Seller made by the Sellers in Section 3.04, Section 3.05, and Section 3.23 this Agreement that is qualified by reference to materiality or Material Adverse Effect shall be true and correct in all respects as correct, and each of the Closing Date with the same effect as though made at and as of such date, (ii) the other representations and warranties of Seller made by the Sellers in Section 3.08 this Agreement shall be true and correct in all material respects (disregarding all qualifications or limitations respects, in each case as to materiality or “Material Adverse Effect” set forth therein) of the date of this Agreement and at and as of the Closing Date with the same effect as though if made at and as of such on that date (except those in any case that representations and warranties that address matters only expressly speak as of a specified date or time, which shall time need only be true and correct in all respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, would not have a Material Adverse Effect;; and
(b) With respect to: (i) Section 5.08, Section 5.09, and Section 5.15, Seller shall have performed all of the covenants, obligations and agreements required to be performed by it therein in all respects at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the Closing;
(c) Seller shall have delivered to Buyer a certificate of Seller, dated the Closing Date and executed by an executive officer of Seller, stating that the conditions specified in Section 2.02(a) and Section 2.02(b) have been satisfied;
(d) Seller shall have delivered to Buyer the certificates representing the Holdco Equity or, if the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyer;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (which, for the avoidance of doubt, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(gvi) Since the date of this Agreement, there no event, circumstance or change shall not have occurred and occurred, that individually or in the aggregate with one or more other events, circumstances or changes, have had or reasonably would be continuing any expected to have, a Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than Effect with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred as of the Closing, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring in the manner set forth in the Contribution and Restructuring AgreementPOMI.
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Samples: Stock Purchase Agreement (Pacific Office Properties Trust, Inc.)
Conditions to Buyer’s Obligations. The obligation obligations of Buyer to consummate the transactions contemplated by this Agreement is hereby shall be subject to the satisfaction (or waiver following conditions, any of which may be waived in writing by Buyer in its sole discretion) of the following conditions as of the Closing DateBuyer:
(a) (i) The representations and warranties Each of Seller in Section 3.04, Section 3.05, and Section 3.23 shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date, (ii) the representations and warranties of Seller the Company and the Shareholders set forth in Section 3.08 this Agreement shall be true and correct in all material respects as of the date of this Agreement and (disregarding all qualifications or limitations except to the extent such representations and warranties speak as to materiality or “Material Adverse Effect” set forth thereinof an earlier date) as of the Closing Date with the same effect as though made at on and as of the Closing Date; provided, however, that for purposes of determining the satisfaction of the condition contained in this Section 5.1(a), no effect shall be given to any exception in such date (except those representations and warranties that address matters only as of relating to knowledge, materiality, or a specified date or timeCompany Material Adverse Effect, which and such representations and warranties shall be deemed to be true and correct in all material respects as of that specified date or time) and (iii) all other representations and warranties of Seller contained in Article III shall be true and correct in all respects (disregarding all qualifications or limitations as to materiality or “Material Adverse Effect” set forth therein other than such qualifications or limitations with respect to Section 3.06 and Section 3.15(b)) as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date or time, which shall be true and correct in all respects as of that specified date or time), except where if the failure or failures of such representations and warranties to be so true and correct, individually or correct without regard to materiality and Company Material Adverse Effect exceptions do not represent in the aggregate, would not have aggregate a Company Material Adverse Effect;
(b) With respect to: (i) Section 5.08, Section 5.09, The Company and Section 5.15, Seller the Shareholders shall have performed and complied in all of the material respects with all agreements, covenants, obligations and agreements conditions required by this Agreement to be performed or complied with by it therein in all respects them at or prior to the Closing; and (ii) all other covenants, obligations and agreements contained herein, Seller shall have performed in all material respects all of such covenants, obligations and agreements required to be performed by it under this Agreement at or prior to the ClosingClosing Date;
(c) Seller Each of NA and NIG shall have delivered to Buyer a certificate of Sellercertificate, dated as of the Closing Date and executed Date, signed on behalf of NA or NIG, as the case may be, by an executive officer John G. Noddings, xxx Xxxxxxxx Xxxector confirming the satisfaction of Seller, stating that the conditions specified contained in Section 2.02(aparagraphs (a) and (b) of this Section 2.02(b) have been satisfied5.1;
(d) Seller Each of the Shareholders shall have delivered to Buyer a certificate, dated as of the certificates representing Closing Date, signed by such Shareholder confirming the Holdco Equity or, if satisfaction of the Holdco Equity is not certificated, duly executed transfer instruments conveying the Holdco Equity to Buyerconditions contained in paragraphs (a) and (b) of this Section 5.1;
(e) Buyer shall have received evidence reasonably satisfactory to it that: (i) all Liens on the Equity (other than Liens created by or on behalf opinion of Buyer and applicable federal and state securities law restrictions) and all Liens (other than Permitted Liens) on any property or assets of the Companies shall have been discharged and released or will be discharged and released contemporaneously with Closing pursuant to documentation reasonably satisfactory to Buyer; and (ii) (as applicable) each Company shall have been released as a borrower or guarantor under any credit facility or indenture (whichGardner, for the avoidance of doubtCarton & Dxxxxxx, excludes any operating or capital leases) of Seller and its Affiliates;
(f) The Transition Services Agreement shall have been executed by PIC and delivered to Buyer;
(g) Since the date of this AgreementCompany's xxxxxxx, there shall not have occurred and be continuing any Material Adverse Effect;
(h) Seller shall have delivered to Buyer a fully executed copy of a binding written agreement between PIC and Peabody Natural Resources Company, a Delaware limited liability company, to make any applicable elections pursuant to Section 336(e) of the Code in connection with the sale of the Holdco Equity;
(i) The “Contract Price” (as defined in the Subject Contract) in effect as of January 1, 2016 shall have been established in accordance with the terms of the Subject Contract;
(j) Seller shall have delivered to Buyer a certificate of non-foreign status meeting the requirements of U.S. Treasury Regulation Section 1.1445-2(b)(2); and
(k) The Restructuring as described in Section 5.14 shall be completed in the manner set forth in the Contribution and Restructuring Agreement (other than with respect to (i) the transfer of all Permits listed on Schedule 1(g)-3 of the Restructuring Agreement, to which, if any such Permits have not been transferred dated as of the ClosingClosing Date, the provisions of Section 9.08 hereof shall apply and (ii) the receipt of all Consents necessary to effect the Restructuring, if any, set forth on Schedule 3.03(b) hereof), including without limitation, the execution and delivery of the Subsidence Rights and Easement Agreements and Water Lease contemplated by the Contribution and Restructuring Agreement, and Seller shall have delivered to Buyer duly executed instruments (as applicable), evidencing the transfer of the equity interest of CO Holdco and NM Holdco to Southwest Holdco and otherwise evidencing the completion of the Restructuring substantially in the manner set forth in the Contribution and Restructuring Agreement.form attached hereto as Exhibit 5.1(e);
Appears in 1 contract
