Common use of Conditions to Obligation of Buyer and Parent Clause in Contracts

Conditions to Obligation of Buyer and Parent. The obligation of Buyer and Parent to consummate the transactions in connection with the Closing is subject to satisfaction of the following conditions: (a) the representations and warranties set forth in Article 4 above (disregarding qualifications as to materiality and Material Adverse Effect) shall be true and correct as of the date of this Agreement (except to the extent such representations and warranties speak as of another date) and at and as of the Closing Date, and the information contained in all of the schedules and Exhibits to this Asset Purchase Agreement shall be true, correct, and complete, except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect; (b) since the date of this Agreement, no change, event, occurrence, effect, development, condition, circumstance, matter or state of facts shall have occurred that, individually or in the aggregate, has had (which is continuing and has not been cured) or would reasonably be expected to have a Material Adverse Effect; (c) Seller shall have performed and complied in all material respects with all of its covenants hereunder that are to be performed prior to Closing; (d) no action, suit, or proceeding shall be pending or threatened before any court or Governmental Authority or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of the transactions contemplated hereby, (B) cause the transactions contemplated hereby to be rescinded following their consummation, or (C) affect adversely the right of Buyer to own the Transferred Assets (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect), and no Governmental Authority shall have enacted, issued, promulgated, enforced or entered any injunction, order, decree, ruling or other legal restraint or prohibition (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the transactions contemplated hereby illegal or prohibiting consummation of said transactions; (e) all actions to be taken by Seller in connection with the consummation of the transactions contemplated hereby and all certificates, instruments of assumption, instruments and other documents required to effect such transactions will be reasonably satisfactory in form and substance to Buyer, including delivery of all items enumerated in Section 3.2; (f) Buyer shall have received evidence of all Necessary Consents in a form reasonably satisfactory to Buyer; and (g) Seller shall have terminated such number of Seller’s Employees, consultants and contractors of the Business as set forth on Section 4.17 of the Disclosure Schedule. Buyer or Parent may waive any condition specified in this section if it executes a written waiver to that effect at or prior to the Closing.

Conditions to Obligation of Buyer and Parent. The obligation of Buyer and Parent to consummate the transactions to be performed by them in connection with the Closing is subject to satisfaction of the following conditions: (a) the representations and warranties of the Company and the Members set forth in Article 4 above (disregarding qualifications as to materiality and Material Adverse Effect) shall III will be true and correct as of the date of this Agreement (except to the extent such representations and warranties speak as of another date) and at and as of the Closing Date, and the information contained in all of the schedules and Exhibits to this Asset Purchase Agreement shall be true, correct, and complete, except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect; (b) since the date Company and the Members will have performed and complied with all of this Agreement, no change, event, occurrence, effect, development, condition, circumstance, matter or state of facts shall have occurred that, individually or their covenants hereunder in all material respects through the aggregate, has had (which is continuing and has not been cured) or would reasonably be expected to have a Material Adverse EffectClosing; (c) Seller shall all statutory requirements for the valid consummation by the Company and the Members of the transactions contemplated by this Agreement will have performed been fulfilled and complied in all material respects with authorizations, consents and approvals, including all of its covenants hereunder that are the third-party consents specified in Section 5.2 will have been obtained in form and substance reasonably satisfactory to be performed prior to ClosingBuyer; (d) all approvals of the Members and managers necessary for the consummation of this Agreement and the transactions contemplated hereby will have been obtained; (e) no action, suit, or proceeding shall will be pending or threatened before any court or Governmental Authority quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (Ai) prevent consummation of any of the transactions contemplated herebyby this Agreement, (Bii) cause any of the transactions contemplated hereby by this Agreement to be rescinded following their consummation, or (Ciii) affect adversely the right of Buyer to purchase or own the Transferred Assets Purchased Assets, or (iv) affect adversely the right of Buyer to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall will be in effect), and no Governmental Authority shall have enacted, issued, promulgated, enforced or entered any injunction, order, decree, ruling or other legal restraint or prohibition (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the transactions contemplated hereby illegal or prohibiting consummation of said transactions; (e) all actions to be taken by Seller in connection with the consummation of the transactions contemplated hereby and all certificates, instruments of assumption, instruments and other documents required to effect such transactions will be reasonably satisfactory in form and substance to Buyer, including delivery of all items enumerated in Section 3.2; (f) the Company and the Members will have delivered to Buyer shall a certificate to the effect that each of the conditions specified above in Section 7.1(a)-(e) is satisfied in all respects; (g) the Company and the Members will have delivered to Buyer (i) a copy of the Certificate of Organization of the Company certified by an appropriate authority of the State of Delaware, (ii) a copy of the Limited Liability Company Agreement of the Company certified by the Company's Manager, (iii) a copy of the resolutions of the Managers and Members of the Company, approving the transactions contemplated by this Agreement certified by the Company's Manager, and (iv) a certificate of good standing of the Company certified by the Secretary of State of the State of Delaware; (h) Buyer will have received evidence from counsel to the Company and the Members an opinion in form and substance as set forth in Exhibit E attached hereto, addressed to Buyer, and dated as of the Closing Date; (i) Buyer will be satisfied in all Necessary Consents material respects with the accuracy of the Schedules to this Agreement; (j) Buyer will be satisfied with the physical condition of the Company's Leased Property, including, but not limited to those criteria listed on Schedule 7.1; (k) The Company will have delivered the Closing Date Inventory List, the Excluded Inventory List, the Closing Date Prepaid Expenses List and the Outstanding Receivables List to Buyer; (l) Parent and Buyer will have obtained on terms and conditions satisfactory to them the consent of lender on Parent's senior credit facility to consummate the transactions contemplated hereby; (m) The Members will have caused the Company to make arrangements satisfactory to Buyer in a its sole discretion to terminate the Company's employee benefit plans and provide for the necessary funding of any and all liabilities associated with such employee benefit plans; and (n) The following additional documents will be delivered at the Closing: (i) The Company and the Members will have executed and delivered the Assignment; (ii) The persons designated by Buyer at or prior to Closing will have executed and delivered Employment Agreements in substantially the form reasonably attached as Exhibit F hereto (the "Employment Agreements"), which will contain non-compete and non-solicitation provisions satisfactory to Buyer; (iii) Each of Brian Shanklin and Blaine Shanklin will have executed and deliverex Xxxxxxxxxx Xgreemxxxx xx xxxxxxxtially the form attached as Exhibit G hereto (the "Consulting Agreements"), which will contain non-compete and non-solicitation provisions satisfactory to Buyer; and (giv) Seller shall The Company will have terminated such number of Seller’s Employeesexecuted and delivered a sublease in a form to be agreed upon and executed by the parties at or prior to the Closing (the "Sublease"), consultants and contractors which will provide for the month-to-month sublease by Buyer of the Business as set forth on facilities located at 9000 Emmott Road, Houston, Texas 77040 which are currently leased xx xxx Xxxxxxx xxxxx xxxx xxxx xx xxx Company obtains a Replacement Property for Buyer's operations in accordance with Section 4.17 of the Disclosure Schedule6.7. Buyer or Parent may waive any condition specified in this section Section 7.1 if it executes a written waiver to that effect writing so stating at or prior to the Closing. A Receivables Opt-Out by the Company does not excuse either party from Closing on the remainder of the transactions contemplated by this Agreement.

Conditions to Obligation of Buyer and Parent. The obligation of Buyer and Parent to consummate the transactions in connection with the Closing is subject to satisfaction or waiver of the following conditions: (a) the The representations and warranties set forth in Article 4 IV above (disregarding qualifications as to materiality and Material Adverse Effect) shall be true true, correct, complete and correct as of the date of this Agreement (except to the extent such representations and warranties speak as of another date) and not misleading in all material respects at and as of the Closing Date(except those representations and warranties that address matters only as of a specified date, which shall be true and the information contained correct in all respects as of the schedules and Exhibits to this Asset Purchase Agreement shall be true, correct, and completethat specified date), except where the failure of such representations and warranties to be so true and correct would not have a material adverse effect on Seller’s ability to consummate the transactions contemplated hereby and the information contained in all of the schedules and exhibits to this Agreement shall be true, correct, individually or complete and not misleading in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effectall material regards; (b) since the date of this Agreement, no change, event, occurrence, effect, development, condition, circumstance, matter or state of facts shall have occurred that, individually or in the aggregate, has had (which is continuing and has not been cured) or would reasonably be expected to have a Material Adverse Effect; (c) Seller shall have performed and complied in all material respects with all of its their agreements, covenants and conditions hereunder that are to be performed on or prior to the Closing; (dc) no No action, suit, or proceeding shall be pending or threatened before any court or Governmental Authority or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (Ai) prevent consummation of the transactions contemplated hereby, (Bii) cause the transactions contemplated hereby to be rescinded following their consummation, or (Ciii) affect adversely the right of Buyer to own the Transferred Assets Company Membership Units (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect), and no Governmental Authority shall have enacted, issued, promulgated, enforced or entered any injunction, order, decree, ruling or other legal restraint or prohibition (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the transactions contemplated hereby illegal or prohibiting consummation of said transactions; (ed) all All actions to be taken by Seller in connection with the consummation of the transactions contemplated hereby and all certificates, instruments of assumption, instruments and other documents required to effect such the transactions will be reasonably satisfactory in form and substance to Buyer, including delivery of all items enumerated in Section 3.2;; and (fe) Buyer shall have received evidence of all Necessary Consents in a form reasonably satisfactory to Buyer; and (g) Seller shall have terminated such number certificate, dated the Closing Date and signed by a duly authorized officer of Seller’s Employees, consultants and contractors that each of the Business as conditions set forth on in Section 4.17 of 6.2(a) and Section 6.2 (b) have been satisfied (the Disclosure Schedule. Buyer or Parent may waive any condition specified in this section if it executes a written waiver to that effect at or prior to the Closing“Seller Closing Certificate”).

Conditions to Obligation of Buyer and Parent. The obligation obligations of Buyer and Parent to consummate the transactions in connection with the Closing is contemplated by this Agreement are subject to satisfaction at or before the Closing of the following conditions: (ai) the representations and warranties set forth in Article Section 3(a) and Section 4 above (disregarding qualifications and the statements contained in any schedule, amended schedule, instrument, list, certificate or writing delivered by Seller or the Companies pursuant to this Agreement, that are qualified as to materiality and Material Adverse Effect) shall will be true and correct as of the date of this Agreement (except to the extent such representations when made and warranties speak as of another date) and the Closing Date as if made at and as of the Closing DateDate and each of such representations, warranties and the information contained statements that are not so qualified will be true and correct in all material respects as of the schedules date when made and Exhibits to this Asset Purchase Agreement shall as of the Closing Date as if made at and as of the Closing Date (except, in each case, for those representations, warranties and statements that address matters only as of a particular date, in which case they will be true, correct, and complete, except where the failure of such representations and warranties to be so true and correct, individually or true and correct in all material respects, as applicable, as of such date); (ii) Seller will have performed and complied with all of its covenants hereunder in all material respects through the aggregateClosing; (iii) There will not be instituted or pending any suit, have not had and action, investigation, inquiry or other proceeding by or before any court or governmental or other regulatory or administrative agency or commission requesting or looking toward an order, judgment or decree that (a) restrains or prohibits the consummation of any of the transactions contemplated hereby, (b) would not reasonably be expected to have a Material Adverse Effect; Effect on Buyer's ability to exercise control over or manage the Companies after the Closing or (bc) since the date of this Agreement, no change, event, occurrence, effect, development, condition, circumstance, matter or state of facts shall have occurred that, individually or in the aggregate, has had (which is continuing and has not been cured) or would reasonably be expected to have a Material Adverse Effect;. (c) Seller shall have performed and complied in all material respects with all of its covenants hereunder that are to be performed prior to Closing; (div) no actionstatute, suitrule, regulation, executive order, decree or proceeding shall be pending injunction will have been enacted, entered, promulgated or threatened before enforced by any court or Governmental Authority or before governmental authority that prohibits the consummation of any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of the transactions contemplated hereby; (v) all Licenses, consents, approvals and authorizations of all third parties and governmental and regulatory authorities will have been obtained that are necessary except as set forth on Schedule 7(a)(v) of the Disclosure Schedule , in the opinion of counsel to Buyer, in connection with (a) the execution and delivery by Seller and the Companies of this Agreement, (Bb) cause the transactions contemplated hereby to be rescinded following their consummation, or (C) affect adversely consummation by Seller and the right of Buyer to own the Transferred Assets (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect), and no Governmental Authority shall have enacted, issued, promulgated, enforced or entered any injunction, order, decree, ruling or other legal restraint or prohibition (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation Companies of the transactions contemplated hereby illegal or prohibiting consummation and (c) the ownership and operation by Buyer of said transactionsthe Companies, and copies of all such Licenses and consents, approvals and authorizations will have been delivered to Buyer; (evi) from the date of this Agreement through the Closing Date, there will not have occurred any change in the financial condition, business or operations of Sub 1 or Sub 2 that would be reasonably likely to have a Material Adverse Effect; (vii) Seller will have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 7(a)(i)-(vi) is satisfied in all respects; (viii) all actions to be taken by Seller and the Companies in connection with the consummation of the transactions contemplated hereby and all certificates, instruments of assumptionopinions, instruments and other documents required to effect such the transactions contemplated hereby will be reasonably satisfactory in form and substance to Buyer, including delivery of all items enumerated in Section 3.2; (fix) as of the Closing Date, none of the Companies will have any indebtedness for borrowed money or obligations in respect of any such indebtedness, including indebtedness to Seller or any of its Affiliates, except for a $315,000 letter of credit required under the General Motors Service Parts Operations License Agreement or as set forth in Section 7(a)(ix) of the Disclosure Schedule; (x) at the Closing, Seller will have entered into a ten-year lease agreement in the form of EXHIBIT F for Buildings Two and Three at Seller's headquarters in Titusville, Florida; (xi) at the Closing, Buyer and Seller will enter into a Transition Services Agreement substantially in the form of EXHIBIT G hereto; (xii) Buyer shall will have received evidence from Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to Seller, an opinion in form and substance as set forth in EXHIBIT H attached hereto, addressed to Buyer and dated as of all Necessary Consents in a form reasonably satisfactory to Buyer; andthe Closing Date; (gxiii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act (if applicable) will have expired or otherwise been terminated and the Parties and the Companies will have received all other authorizations, consents and approvals of the governmental or regulatory bodies or authorities referred to in Section 3(a)(ii), Section 3(b)(ii) and Section 4(c); (xiv) Seller shall will have terminated such number of Seller’s Employees, consultants and contractors delivered to Buyer an executed counterpart of the Business Assignment of Trademarks, in the form attached hereto as EXHIBIT E; (xv) Seller will have secured the release of Sub 1 and Sub 2 from all guarantees entered into by Sub 1 or Sub 2 on behalf of Seller or its Affiliates under all Guaranteed Obligations set forth on Section 4.17 6(d) of the Disclosure ScheduleSchedule unless waived by the Buyer in writing. Buyer or and Parent may waive any condition specified in this section Section 7(a) if it executes a written waiver to that effect writing so stating at or prior to the Closing.