Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Buyer) of the following further conditions:
(i) Seller shall have performed in all material respects all of its obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of Seller contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall be true when made and at and as of the Closing Date, as if made at and as of such date, with only such exceptions as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (iii) Buyer shall have received a certificate signed by an officer of Seller to the foregoing effect;
(b) all consents of third parties required by the agreements listed in Section 10.02(b) of the Disclosure Schedule shall have been obtained;
(c) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business as now conducted shall have been transferred to or otherwise obtained by Buyer on or before the Closing Date, with only such exceptions as would not reasonably be expected to have a Material Adverse Effect;
(d) Buyer shall have received all documents it may reasonably request relating to (i) the existence of Seller and its Subsidiaries (including the Purchased Subsidiaries) and (ii) the authority of Seller for this Agreement, all in form and substance reasonably satisfactory to Buyer; and
(e) The proceeds of the Debt Financing shall have been received by Buyer, or shall be fully available to Buyer, on substantially the terms and conditions set forth in the Debt Commitment Letter (including after giving effect to any changes pursuant to the “market flex” provisions thereof); provided that Buyer shall not be entitled to assert the failure of the condition set forth in this Section 10.02(e) if the failure of the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummated.
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or written waiver, at or prior to the Closing, of each of the following conditions:
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to the satisfaction of the following conditions as of the Closing:
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by it at and in connection with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth in Article 3 shall be true and correct in all material respects (except for representations and warranties limited by material adverse effect or material adverse change, which shall be true and correct in all respects) at and as of the Closing Date (as though then made);
(b) Seller shall have performed and complied with all of its covenants under this Agreement in all material respects through the Closing;
(c) Seller shall have procured all of the third-party consents specified in Section 5.2;
(d) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller is pending or, to Seller’s Knowledge, threatened before any court or quasi-judicial or administrative Governmental Agency or before any arbitrator as a result of which an unfavorable judgment, order, decree, ruling, or charge would (i) 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 adversely the right of the Buyer to own the Acquired Assets and to operate the Business (and no judgment, order, decree, ruling, or charge having any effect described in clause (i), (ii), or (iii) of this Section 6.2(d) will be in effect);
(e) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.1(a)-(d) is satisfied in all respects;
(f) all applicable waiting periods (and any waiting period extensions) under the Xxxx-Xxxxx-Xxxxxx Act have expired or otherwise been
68 A seller should consider negotiating a carve-out—specifically known as a “fiduciary out”—here for actions taken by the board of directors of the seller in satisfaction of its fiduciary duties to the seller’s shareholders. terminated and Seller, and Xxxxx has received all other authorizations, consents and approvals of the Governmental Agencies referenced in Section 3.3 and Section 4.3;
(g) Xxxxx shall have received from counsel to Seller an opinion in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer and dated as of the Closing Date;
(h) Buyer shall be satisfied, in its sole discretion, after visits with the customers of Seller listed on Discl...
Conditions to Obligation of Buyer. The obligation of Buyer to effect the transactions contemplated hereby is subject to the satisfaction of the following conditions unless waived, in whole or in part, by Buyer:
Conditions to Obligation of Buyer. The obligation of Buyer to complete the purchase of the Assets on the Closing Date on the terms set forth in this Agreement is, at the option of Buyer, subject to the satisfaction or waiver by Buyer of each of the following conditions:
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Transaction is subject to the satisfaction (or waiver by Buyer in its sole discretion) of the following further conditions:
(i) Each of the representations and warranties of Seller, Intermediate LLC and the Company set forth in this Agreement (other than the Company Fundamental Representations and other than the representation and warranty set forth in Section 3.8(b)) shall be true and correct at and as of the date hereof and at as of the Closing Date as if made at and as of such date (without giving effect to any Disclosure Schedule Supplement and without giving effect to any “materiality,” “in all material respects,” “Company Material Adverse Effect” or similar qualifiers in such representations and warranties) (except to the extent that such representations and warranties that are made as of an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date) except where the failure of such representations and warranties to be true and correct, individually and in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; (ii) each of the Company Fundamental Representations (other than the representation and warranty set forth in Section 3.4) shall be true and correct in all material respects at and as of the date hereof and at and as of the Closing Date as if made at and as of such date (without giving effect to any Disclosure Schedule Supplement), except to the extent that such representations and warranties that are made as of an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date; (iii) the representations and warranties set forth in Section 3.4 shall be true and correct in all respects at and as of the date hereof and at and as of the Closing Date as if made at and as of such date (without giving effect to any Disclosure Schedule Supplement), except to the extent that the failure of such representations and warranties to be true and correct in all respects, individual and in the aggregate, has not had and would not reasonably be expected to result in Losses of $500,000 or more; and (iv) the representation and warranty set forth in Section 3.8(b) shall be true and correct in all respects at and as of the date hereof and at and as of the Closing Date as if made at and as of such date (without giving effect to any ...
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions contemplated hereby are subject to the satisfaction or waiver of the following further conditions:
(i) The Sellers shall have performed in all material respects all of their obligations hereunder required to be performed by them on or prior to the Closing Date, (ii) the representations and warranties of Albertsons’ or SUPERVALU contained in this Agreement (disregarding any Material Adverse Effect, materiality or similar qualifiers therein) shall be true and correct as of the date hereof and Closing Date as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct as of such specified date), except where any failure of such representations or 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, and (iii) Buyer shall have received a certificate signed by an officer of Albertson’s or SUPERVALU, as applicable, to the foregoing effect.
(b) The applicable Sellers shall have duly executed and delivered each of the Ancillary Agreements.
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following further conditions:
(a) (i) Seller and the Company shall have performed in all material respects all of their respective obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of Seller and the Company contained in this Agreement (disregarding all exceptions therein for materiality and Material Adverse Effect) shall be true and correct as of the Effective Date and at and as of the Closing Date as if made at and as of such time (or, in the case of representations and warranties that relate to a specific date, as of such date) with only such exceptions as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as whole, and (iii) Buyer shall have received a certificate signed by Seller to the foregoing effect.
(b) There shall not be threatened in writing, instituted or pending any action or proceeding by any Governmental Authority, (i) seeking to restrain, prohibit or otherwise materially interfere with the consummation of the transactions contemplated hereby or the ownership or operation by Buyer or any of its Affiliates of all or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (ii) seeking to compel Buyer or any of its Affiliates to dispose of all or any material portion of the business or assets of the Company or any Subsidiary or of Buyer or any of its Affiliates, (iii) seeking to impose or confirm limitations on the ability of Buyer or any of its Affiliates effectively to exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by Seller or any of his Affiliates on all matters properly presented to the Company’s stockholders or (iv) seeking to require divestiture by Buyer or any of its Affiliates of any Shares or any business or assets of Buyer or any of its Affiliates.
(c) There shall not be any action taken, or any Applicable Law proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of the Shares, by any Governmental Authority, that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred to in Sections 10.02(b)(i) through 10.02(b)(iv).
(d) There shall not have occurred, arisen or ...
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing in accordance with the terms of this Agreement is subject to the satisfaction (or waiver in writing by Buyer) at or prior to the Closing of the conditions set forth below.
