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.
Appears in 4 contracts
Samples: Asset and Stock Purchase Agreement, Asset and Stock Purchase Agreement (Texas Instruments Inc), Asset and Stock Purchase Agreement (Texas Instruments Inc)
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 (or, to the extent permitted by Applicable Law, waiver by Buyer) of the following further conditions:
(i) Seller the representations and warranties of Sellers herein contained shall have performed been true and correct in all material respects when made and, in addition, shall be true and correct in all material respects on and as of its the Closing Date with the same force and effect as though made on and as of the Closing Date, except as affected by transactions contemplated hereby;
(ii) Sellers shall have in all material respects performed all obligations hereunder required and agreements and complied in all material respects with all their covenants and conditions contained in this Agreement to be performed and complied with by it them or on or prior to the Closing Date;
(iii) there shall be no material adverse change in the business, properties or financial condition of the Company (iiother than any material adverse change resulting from or relating to (A) the representations and warranties decline in the performance of Seller contained the business experienced to date, the circumstances or factors giving rise to such decline or any continuation of such decline, circumstances or factors in the future or (B) any actions taken or announced by Buyer in connection with the transactions contemplated by this Agreement or any reaction of employees or business relations of the Company to the transactions contemplated by this Agreement, all of which risks are being assumed by the Buyer);
(disregarding all materiality A) no action or proceeding before any court or governmental agency shall have been instituted or threatened which would enjoin, restrain or prohibit (or which seeks substantial damages as a result of or in connection with) the transactions contemplated by this Agreement and Material Adverse Effect qualificationswhich would in the reasonable judgment of Buyer make it inadvisable to consummate such transactions and (B) no court order shall be true when made have been entered in any action or proceeding instituted by any other Person which enjoins, restrains or prohibits the consummation of the transactions contemplated by this Agreement;
(v) Buyer shall have received from counsel to Sellers an opinion in form and at substance as set forth in Exhibit B attached hereto, addressed to Buyer, and dated 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 ;
(iiivi) Buyer shall have received from LLC a certificate signed by an officer the Chief Manager and Secretary and from the individual Sellers, dated the date 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;
certifying that the closing conditions set forth in Sections 7(a)(i), (d) Buyer shall have received all documents it may reasonably request relating to (i) the existence of Seller and its Subsidiaries (including the Purchased Subsidiariesii) and (iivii) the authority of Seller for this Agreement, all in form and substance reasonably satisfactory to Buyerare satisfied; and
(evii) The proceeds of all other documents required to be delivered by Sellers, the Debt Financing Company or its Subsidiaries under this Agreement at or prior to the Closing Date shall have been received by Buyer, be delivered or shall be fully available to Buyer, on substantially tendered by the terms and conditions set forth in the Debt Commitment Letter (including after giving effect to Closing Date. Buyer may waive 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 specified 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 consummated7(a).
Appears in 4 contracts
Samples: Stock Purchase Agreement (Icommerce Group Inc), Stock Purchase Agreement (Icommerce Group Inc), Stock Purchase Agreement (Icommerce Group Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated by this Asset Purchase Agreement is subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by BuyerBuyer in its sole discretion) of the following further conditions:
(ia) 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 The representations and warranties of Seller contained set forth in this Agreement Article IV (disregarding i) that are not qualified by “material adverse effect” or other materiality qualifications shall have been true and correct in all materiality material respects at and Material Adverse Effect qualifications) as of the date hereof and shall be true when and correct in all material respects at and as of the Closing Date as if made and at and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date, and (ii) that are qualified by “material adverse effect” or other materiality qualifications shall have been true and correct in all respects at and as of the date hereof and shall be true and correct in all respects at and as of the Closing Date as if made at and as of the Closing Date, except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date.
(b) Seller shall have performed or complied in all material respects with only such exceptions as would not, individually all obligations and covenants required by this Asset Purchase Agreement to be performed or in complied with by Seller at or prior to the aggregate, reasonably be expected to have a Material Adverse Effect and Closing.
(iiic) Buyer shall have received a certificate dated the Closing Date signed on behalf of Seller by an officer the President of Seller to the foregoing effect;effect that the conditions set forth in Sections 8.2(a) and 8.2(b) have been satisfied (the “Seller Closing Certificate”).
(d) There shall have been no material adverse change in the condition of the Purchased Assets taken as a whole; provided however, that none of the following (individually or in combination) shall be deemed to constitute, or shall be taken into account in determining whether there has been, a material adverse change: (a) any adverse change resulting from any action taken by Buyer; (b) all consents any action taken or any action not taken by Seller in compliance with its covenants and obligations contained in this Asset Purchase Agreement; or (c) any action taken or any action not taken by Seller at the written request or with the written consent of third parties required Buyer.
(e) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of any of the transactions contemplated by this Asset Purchase Agreement or the agreements listed in Section 10.02(bAncillary Agreements, (ii) affect adversely the right of Buyer to own the Purchased Assets or (iii) restrain or prohibit Buyer’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the Disclosure Schedule Facility or Purchased Assets, or compel Buyer or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the Facility or Purchased Assets or all or any material portion of the business and assets of Buyer and its Subsidiaries. No such Order shall be in effect.
(f) No Law shall have been obtained;enacted or shall be deemed applicable to the transactions contemplated by this Asset Purchase Agreement or the Ancillary Agreements which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(e).
(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;
(dg) Buyer shall have received all documents it may reasonably request relating to (i) an owner’s title insurance policy issued by a nationally recognized insurance company with respect to each parcel of Real Property listed on Schedule 8.2(g) (the existence “Insured Real Properties”), issued as of the Closing Date in an amount based on the amount of the Purchase Price to be allocated to the Real Property to be mutually and reasonably agreed upon by Seller and its Subsidiaries (including Buyer for the Purchased Subsidiaries) purposes of this Section 8.2(g), insuring Buyer’s fee simple title to each Insured Real Property free of all Liens except Permitted Liens and standard title policy exceptions, and (ii) a certified ALTA/ACSM Land Title Survey for each of the authority of Seller for this AgreementInsured Real Properties, all in form and substance reasonably satisfactory to Buyer that shall not reveal any condition not permitted by Section 4.10(b)(i). Seller shall be responsible for the costs related to the owner’s title insurance policy referenced in the forgoing clause (i) and Buyer and Seller shall each be responsible for fifty percent (50%) of the costs related to the ALTA/ACSM Land Title Survey referenced in the forgoing clause (ii). Buyer shall be responsible for the cost of extended coverage and any endorsements to the title policy.
(h) Seller shall have obtained the Consent of each Person whose Consent is required under the Contracts set forth in Schedule 8.2(h) and shall have provided evidence of each such Consent in form and substance satisfactory to Buyer; and.
(ei) The proceeds Buyer shall have received (i) all material Authorizations (including any Environmental Permits) that are necessary for it to operate the Purchased Assets to manufacture its own products, or (ii) reasonable assurances from relevant Governmental Entities that Buyer may operate under Seller’s Authorizations until such time that Buyer receives its own Authorizations and Seller provides consent to such use.
(j) Seller shall have delivered to Buyer all agreements and other documents required to be delivered by Seller to Buyer pursuant to Section 3.2 of this Asset Purchase Agreement.
(k) Buyer shall have received a certificate of the Debt Financing Secretary of Seller dated the Closing Date and certifying: (A) that attached thereto are true and complete copies of all resolutions adopted by the Board of Directors in connection with the transactions contemplated by this Asset Purchase Agreement and the Ancillary Agreements, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated by this Asset Purchase Agreement and the Ancillary Agreements; and (B) to the incumbency and specimen signature of each officer of Seller executing this Asset Purchase Agreement and/or the Ancillary Agreements, and a certification by another officer of Seller as to the incumbency and signature of the Secretary of Seller.
(l) Buyer shall have been received by Buyer, or shall be fully available evidence in form and substance satisfactory to Buyer, on substantially the terms and conditions set forth in the Debt Commitment Letter (including after giving effect to any changes pursuant Buyer that all Liens other than Permitted Liens with respect to the “market flex” provisions thereof); provided that Buyer Purchased Assets have been released.
(m) Seller shall not be entitled to assert have obtained 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 consummatedXxxxxxxxxxxx Farms Termination.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Integrated Device Technology Inc), Asset Purchase Agreement (ALPHA & OMEGA SEMICONDUCTOR LTD), Option Agreement (ALPHA & OMEGA SEMICONDUCTOR LTD)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction (or, or valid waiver) at or prior to the extent permitted by Applicable Law, waiver by Buyer) Closing of the following further conditions:
(a) (i) Seller shall have performed in all material respects all each 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 Section 3.01, Section 3.02, Section 3.03, and Material Adverse Effect qualifications) Section 3.07 shall be true when made and at correct in all respects (except for any failure to be so true and correct that is de minimis in nature) on and as of the date hereof and on and as of the Closing Date, Date with the same effect as if though such representations and warranties had been made at on and as of the Closing Date (provided that representations and warranties which speak to a specified date shall speak only as of such date, ) and (ii) each other representation and warranty of Seller contained in Article 3 shall be true and correct on and as of the date hereof and as of Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date (provided that representations and warranties which speak to a specified date shall speak only as of such exceptions date) except where the failure to be so true and correct (without giving effect to any limitation or qualification as to “materiality” (including the word “material”) or “Material Adverse Effect” or other similar term set forth therein) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (iii) Buyer shall have received a certificate of the Company certifying as to the matters set forth in this Section 8.02(a) signed by an officer a duly authorized representative of Seller to the foregoing effectCompany;
(b) all consents of third parties the material covenants and agreements that Seller are required by to perform or to comply with pursuant to this Agreement at or prior to the agreements listed in Section 10.02(b) of the Disclosure Schedule Closing shall have been obtained;performed and complied with in all material respects and Buyer shall have received a certificate of the Company to such effect signed by a duly authorized representative of the Company; and
(c) all governmental licensesFrom the date hereof, authorizations, permits, consents and approvals required to carry on the Business as now conducted there shall not 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 occurred any 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.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Sequential Brands Group, Inc.), Asset Purchase Agreement (Sequential Brands Group, Inc.), Asset Purchase Agreement (Sequential Brands Group, Inc.)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing --------------------------------- close hereunder is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Buyer) of the following further conditions:
(ia) Subject to changes that are not in the aggregate materially adverse in the reasonable judgment of Buyer, the representations and warranties made by Seller in this Agreement shall be true and correct on and as of the Closing Date with the same effect as if made on and as of the Closing Date, and Seller shall have performed in and complied with all material respects all of agreements, covenants and conditions on its obligations hereunder part required to be performed by it or complied with 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 A duly authorized officer of third parties required by Seller shall deliver to Buyer, at the agreements listed Closing, a certificate certifying as to the matters set forth in Section 10.02(b4.2(a) of hereof and that there has been no adverse change with respect to the Disclosure Schedule shall have been obtained;Assets or the Assumed Liabilities since the date hereof.
(c) all governmental licensesNo legal action or proceeding shall be pending or threatened (i) by any Governmental Body seeking to restrain, authorizationsprohibit, permits, consents and approvals required to carry on the Business as now conducted shall have been transferred to invalidate or otherwise obtained by Buyer on affect the consummation of the transactions contemplated hereby or before the Closing Date, with only such exceptions as would not (ii) which is reasonably be expected likely to have a Material Adverse Effect;material adverse effect on the Assets or the use of the Assets by Buyer.
(d) Buyer and Seller shall have received all documents it may reasonably request relating to entered into an operating agreement regarding TMT RFX test systems, production test services, off-shore assembly and test services and personnel matters in substantially the form attached hereto as Exhibit B (i) the existence of Seller and its Subsidiaries (including the Purchased Subsidiaries) and (ii) the authority of Seller for this "Operating Agreement, all in form and substance reasonably satisfactory to Buyer; and"). --------- -------------------
(e) The proceeds of the Debt Financing Buyer and Seller shall have been received by Buyerentered into a lease agreement with respect to certain space at 0000 Xxxxxxxxx Xxxxx, or shall be fully available to BuyerXxx Xxxx, on Xxxxxxxxxx in substantially the terms form attached hereto as Exhibit C (the "Lease Agreement"). --------- ---------------
(f) Seller shall have delivered to Buyer all bills of sale, endorsements, assignments and conditions set forth in other instruments as Buyer shall reasonably request or as necessary or appropriate to sell, convey, assign, transfer and deliver to Buyer title to all the Debt Commitment Letter Assets.
(including after giving effect g) Buyer shall have satisfactorily completed its due diligence with regard to any changes the Assets to be carried out 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 consummated6.5.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Artest Corp), Purchase and Sale Agreement (Artest Corp), Purchase and Sale Agreement (Artest Corp)
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:
(ia) Seller and the Selling Subsidiaries shall have performed in all material respects all of its obligations hereunder required to be performed by it on them at or prior to the Closing Date, Closing.
(iib) the (i) The representations and warranties of Seller and the Selling Subsidiaries contained in this Agreement (disregarding all materiality Section 3.06(a)(other than the last two sentences thereof), 3.07 and Material Adverse Effect qualifications) the first sentence of Section 3.11 shall be true when made and correct in all respects at and as of the Closing Date, as if made at and as of such datedate (other than such representations and warranties that by their terms address matters only as of another specific time, which shall be true in all respects only as of such time), (ii) the representations and warranties of Seller and the Selling Subsidiaries contained in Sections 3.01, 3.02, 3.04, 3.05, 3.06(b), 3.06(c) and in the last two sentences of Section 3.06(a) (together with the representations and warranties contained in Section 3.06(a) (other than the last two sentences thereof) and 3.07, collectively, the “Fundamental Representations”) shall be true and correct in all material respects at and as of the Closing Date, as if made at and as of such date (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be true in all material respects only as of such time), (iii) the other representations and warranties of Seller and the Selling Subsidiaries contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct at and as of the Closing Date as if made at and as of such date (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time) with only such exceptions as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (iiiiv) Buyer shall have received a certificate signed by an executive 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 licensesSince the date of this Agreement, authorizationsthere shall not have occurred and be continuing any change, permitsevent, consents and approvals required to carry on circumstance, development or occurrence which, individually or in the Business as now conducted shall have been transferred to or otherwise obtained by Buyer on or before the Closing Dateaggregate, with only such exceptions as would not reasonably be expected to have has had a Material Adverse Effect;.
(d) Buyer Each of the Selling Subsidiaries and Seller shall have received all documents delivered a certification to the effect that it may reasonably request relating to (i) is not a “foreign person” within the existence meaning 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 Section 1445 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 consummatedCode.
Appears in 3 contracts
Samples: Combined Credit Agreements (Quicksilver Resources Inc), Purchase Agreement (Crestwood Holdings LLC), Purchase Agreement (Quicksilver Resources Inc)
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:
(ia) Seller The Corporation 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, Closing;
(iib) the The representations and warranties of Seller the Corporation contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall in each case, if specifically qualified by materiality, be true when made and correct and, if not so qualified, be true and correct in all material respects at and as of the Closing Date(except that, for the purposes of this Section 8.02(b), the representation and warranty in Section 3.12(i) shall only apply with respect to any action, suit, investigation or proceeding instituted by a governmental agency or authority), as if made at and as of such date (except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct, or true and correct in all material respects, as the case may be, on and as of such earlier date);
(c) The Certificate of Designations shall have been filed in accordance with only such exceptions as would notthe laws of Delaware; 37
(d) the Portal Agreement, individually or the Channel Agreement and the LA Agreement (or, in the aggregatecase of any of the foregoing agreements, reasonably an agreement superseding such first agreement executed by the parties to the first agreement) shall be expected in full force and effect;
(e) The Corporation shall have delivered to have Buyer (i) a Material Adverse Effect copy of the resolutions adopted by the Board of Directors, certified by the Secretary of the Corporation, authorizing this Agreement and approving Buyer's attainment of the status of an "interested stockholder" under Section 203 of the DGCL and (iiiii) Buyer shall have received a certificate dated the Closing Date, signed by an officer of Seller the Corporation, certifying as to the foregoing effectfulfillment of the conditions set forth in Sections 8.02(a) and (b);
(bf) all consents of third parties required by The Corporation shall have delivered to Buyer an opinion reasonably acceptable to Buyer from the agreements listed in Section 10.02(b) General Counsel 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 DateCorporation, with only such exceptions as would not reasonably be expected respect to have a Material Adverse Effect;
(d) Buyer shall have received all documents it may reasonably request relating to (i) the existence due incorporation, due authorization and capitalization 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 BuyerCorporation; and
(eg) The proceeds Corporation shall have delivered to Buyer an opinion reasonably acceptable to Buyer from Xxxxx Xxxx & Xxxxxxxx, special counsel to the Corporation, with respect to the validity of the Debt Financing shall have been received by Buyer, or shall be fully available to Buyer, on substantially Preferred Shares and the terms valid 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 binding nature and enforceability 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 consummatedAgreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (RCN Corp /De/), Stock Purchase Agreement (Level 3 Telecom Holdings Inc)
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 their obligations hereunder required to be performed by it them on or prior to the Closing Date, and (ii) the representations and warranties of Seller Seller, contained in this Agreement (and in any certificate or other writing delivered by Seller pursuant hereto shall be true, disregarding all qualifications and exceptions contained therein relating to materiality and or Material Adverse Effect qualifications) shall be true when made and Effect, at and as of the Closing Date, as if made at and as of such date, with only such exceptions (A) as would not, individually or not in the aggregate, aggregate reasonably be expected to have a Material Adverse Effect and or (iiiB) Buyer shall have received a certificate signed as are results of any action permitted by an officer of Seller to the foregoing effect;Section 5.01.
(b) Execution and delivery of a stockholders' agreement in the form of Exhibit B (the "STOCKHOLDERS' AGREEMENT") by all consents of third parties required by the agreements listed in Section 10.02(b) of the Disclosure Schedule shall have been obtained;parties thereto other than Buyer.
(c) Execution and delivery of a registration rights agreement in the from of Exhibit C (the "REGISTRATION RIGHTS AGREEMENT") by 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;parties thereto other than Buyer.
(d) Buyer shall have received all documents it may reasonably request relating Execution and delivery of a real property lease relative to the Wednesbury property in the form of Exhibit D (ithe "WEDNESBURY LEASE") by the existence of Seller and its Subsidiaries parties thereto (including the Purchased Subsidiaries) and (ii) the authority of Seller for this Agreement, all in form and substance reasonably satisfactory to other than any party affiliated with Buyer; and).
(e) The proceeds None of the Debt Financing members of the Company Group shall have been received by Buyerany bank debt, or shall be fully available other similar debt for borrowed money to BuyerSeller, on substantially the terms and conditions set forth any Affiliate of Seller or any other Person (other than accounts payable in the Debt Commitment Letter (including after giving effect to any changes pursuant ordinary course of business); it being agreed that, anything in this Agreement to the “market flex” provisions thereof)contrary notwithstanding, anytime prior to the Closing, Seller shall have the right to (or shall have the right to cause one or more of its Affiliates, including any members of the Company Group to) use any cash (or cash equivalent) of the Company Group (or otherwise take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable under applicable laws and regulations) to pay off or other satisfy in full any such debt obligation.
(f) Those actions described in Section 2.02(a) and Section 2.02(b) shall have occurred.
(g) Seller shall have (or shall have caused) the partial repayment of intercompany accounts of the Company Group in the amount of $2 million; provided that Buyer shall not be entitled to assert the failure extent Seller or any of Seller's Affiliates (other than the Company Group) have guaranteed or otherwise extended credit support in respect of any obligations under any letters of credit issued for the benefit of any member of the condition set forth Company Group (collectively, "LETTER OF CREDIT OBLIGATIONS"), then out of such $2 million an amount equal to such Letter of Credit Obligations shall be held in this Section 10.02(e) if escrow and such escrowed amount shall be released to Buyer from time to time after and to the failure extent that Seller or its Affiliates are released from such Letter of the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummatedCredit Obligations.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Us Industries Inc /De), Stock Purchase Agreement (Megapro Tools Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transaction to be performed by it in connection with the Closing is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Buyer) of the following further conditions:
(ia) Seller this Agreement and the Merger shall have performed in all material respects all of its obligations hereunder required to be performed by it on or prior to received the Closing Date, Requisite Stockholder Approval;
(iib) the representations and warranties of Seller contained GCSI set forth in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) Article III shall be true when made and correct in all material respects at and as of the Closing Date;
(c) GCSI shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(d) there shall not be any judgment, as if made at order, decree, stipulation, injunction or charge in effect preventing consummation of any of the transactions contemplated by this Agreement;
(e) GCSI shall have delivered to Buyer (i) a Certificate of Existence of GCSI issued by the Alabama Secretary of State, (ii) a Certificate of Good Standing of GCSI issued by the Alabama Department of Revenue, (iii) certified copies of the resolutions of the board of directors of GCSI 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 GCSI Stockholders approving the Merger and (iiiiv) a noncompetition agreement of Xxxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx Xxxxxxx, Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxx in form and substance reasonably acceptable to Buyer;
(f) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other authorizations, consents and approvals of Governmental Entities referred to in Section 3.4 and Section 4.4 above;
(g) Buyer shall have received a certificate signed by from counsel to GCSI 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 opinion in form and substance reasonably satisfactory to Buyer, addressed to Buyer and dated as of the Closing Date; and
(eh) The proceeds all actions to be taken by GCSI in connection with the consummation of the Debt Financing shall have been received by Buyertransactions contemplated hereby and all certificates, or shall opinions, instruments and other documents required to effect the transactions contemplated hereby will be fully available reasonably satisfactory in form and substance to Buyer, on substantially the terms and conditions set forth in the Debt Commitment Letter (including after giving effect to . Buyer may waive 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 specified in this Section 10.02(e) if 7.1 by a writing so stating delivered to GCSI at or prior to the failure of the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummatedClosing.
Appears in 2 contracts
Samples: Merger Agreement (Madison River Capital LLC), Merger Agreement (Madison River Capital LLC)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing Acquisition is subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by BuyerBuyer in its sole discretion) of the following further conditions:
(ia) 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 The representations and warranties of Seller contained set forth in this Agreement (disregarding all materiality shall have been true and Material Adverse Effect qualifications) correct at and as of the date hereof and shall be true when and correct at and as of the Closing Date as if made and at and as of the Closing Date, as if made at except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date.
(b) Seller shall have performed or complied with all obligations and covenants required by this Agreement to be performed or complied by Seller with at or prior to the Closing Date.
(c) No Action shall be pending or threatened before any court or other Governmental Entity (i) seeking to prevent consummation of any of the transactions contemplated by this Agreement, with only such exceptions as would not, individually (ii) seeking to impose any material limitation on the right of Buyer to own the Acquired Shares and to control the Acquired Company and its Subsidiaries or in the aggregate, reasonably be expected to have a Material Adverse Effect and (iii) seeking to restrain or prohibit Buyer’s ownership or operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the business or assets of the Acquired Company and its Subsidiaries, taken as a whole, or compel Buyer or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the business or assets of the Acquired Company and its Subsidiaries, taken as a whole, or of Buyer and its Subsidiaries, taken as a whole. No such Order shall be in effect.
(d) No Law shall have been enacted or shall be deemed applicable to the Acquisition which has any of the effects set forth in clauses (i) through (iii) in Section 8.2(c).
(e) Buyer shall have received a certificate signed by an officer written opinion from Xxxxxxxx & Knight LLP and from Xxxxx & Xxxxx, counsels to Seller, addressed to Buyer, dated as 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 in the forms attached hereto as would not reasonably be expected to have a Material Adverse Effect;Exhibit E-1 and Exhibit E-2, respectively.
(df) Buyer Seller shall have received all documents it may reasonably request relating to (i) obtained the existence Consent of Seller and its Subsidiaries (including each Person whose Consent is required under the Purchased SubsidiariesContracts set forth in Schedule 8.2(e) and (ii) the authority shall have provided evidence of Seller for this Agreement, all each such Consent in form and substance reasonably satisfactory to Buyer; and.
(eg) The proceeds Seller shall have delivered to Buyer evidence of (i) the release of all Liens with respect to the property and assets of the Debt Financing Acquired Company and its Subsidiaries, (ii) the repayment of all outstanding Indebtedness of the Acquired Company and its Subsidiaries, (iii) the repayment or other cancellation of all intercompany accounts between Seller and its Subsidiaries (other than the Acquired Company or any of its Subsidiaries), on the one hand, and the Acquired Company or the Subsidiaries of the Acquired Company, on the other hand, and (iv) the release of all guarantees by the Acquired Company or the Subsidiaries of the Acquired Company of any Indebtedness or other obligation of any third party, including Seller or any of its Affiliates, in each case in form and substance satisfactory to Buyer.
(h) Seller shall have been received delivered to Buyer a certificate of the director of Seller dated the Closing Date and certifying: (A) that attached thereto are true and complete copies of all resolutions adopted by Buyerthe Board of Directors of Seller authorizing the execution, or shall be fully available delivery and performance of this Agreement, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the Acquisition; and (B) to Buyer, on substantially the terms incumbency and conditions set forth in specimen signature of each officer of Seller executing this Agreement and the Debt Commitment Letter (including after giving effect to any changes other agreements and documents delivered pursuant to this Agreement, and a certification by another officer of Seller as to the “market flex” provisions thereof); provided that Buyer shall not be entitled to assert the failure incumbency and signature of the condition set forth in this Section 10.02(edirector of Seller.
(i) if Seller and Escrow Agent shall have executed and delivered the failure of the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummatedEscrow Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (La Cortez Energy, Inc.), Stock Purchase Agreement (Avante Petroleum S.A.)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated by this Agreement is subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by BuyerBuyer in its sole discretion) of the following further conditions:
(ia) 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 The representations and warranties of Seller contained set forth in this Agreement (disregarding all i) that are qualified as to materiality and Material Adverse Effect qualifications) shall be true when and correct in all respects and (ii) that are not so qualified shall be true and correct in all material respects, in each case as of the date hereof and as of the Closing Date as if made and at and as of the Closing Date, as if made at except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier 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) Seller shall have performed or complied in all consents of third parties material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller at or prior to the agreements listed in Section 10.02(b) of the Disclosure Schedule shall have been obtained;Closing.
(c) all governmental licensesSeller shall execute and deliver to Buyer a certificate of an authorized officer of Seller, authorizations, permits, consents and approvals required to carry on the Business dated as now conducted shall have been transferred to or otherwise obtained by Buyer on or before of the Closing Date, with only such exceptions as would not reasonably be expected to stating that the conditions specified in Sections 7.1(a) and (b) of this Agreement have a Material Adverse Effect;been satisfied.
(d) Buyer On the Closing Date, there shall have received all documents it may reasonably request relating be no Laws, permits or orders that operate to (i) restrain, enjoin or otherwise prevent or make illegal the existence consummation of Seller and its Subsidiaries (including the Purchased Subsidiaries) and (ii) the authority of Seller for transactions contemplated by this Agreement, all in form and substance reasonably satisfactory to Buyer; and. No action or proceeding initiated by any Governmental Entity seeking an order prohibiting the consummation of the transactions contemplated by this shall be pending.
(e) Buyer and XxXxxx Inc. shall have consummated the transactions contemplated in the XxXxxx, Inc. APA.
(f) The proceeds Seller shall have obtained the consent of the Debt Financing shall have been received by Buyer, or shall lessor under the Lease for the Lease to be fully available assigned 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.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Composite Technology Corp), Asset Purchase Agreement (Composite Technology Corp)
Conditions to Obligation of Buyer. The Buyer’s obligation of to purchase the Acquired Assets and assume the Assumed Liabilities as provided in Article 2 and to take the other actions required to be taken by Buyer to consummate at the Closing is subject to the satisfaction (orsatisfaction, at or prior to the extent permitted by Applicable LawClosing, waiver by Buyer) of each of the following further conditions:conditions (any of which may be waived by Buyer, in whole or in part):
(a) Buyer and Seller shall have procured all of the Consents (including all Regulatory Approvals) required to consummate the Acquisition (other than any approvals of the Board of Directors, shareholders or lenders of Buyer or Seller as necessary to authorize the Buyer or Seller, as the case may be, to enter into this Agreement and consummate the transactions contemplated hereby, all of which having been obtained prior to the date hereof) and all applicable waiting periods (and any extensions thereof) shall have expired or otherwise been terminated, unless such regulatory approval imposes any condition or requirement which in the reasonable judgment of Buyer would materially adversely impact the economic or business benefits of the transactions contemplated by this Agreement or otherwise would in the reasonable judgment of the Buyer be so burdensome as to render inadvisable the consummation of the transactions contemplated by this Agreement.
(b) The representations and warranties of Seller set forth in Article 3 and Article 4 above shall be true and correct in all material respects (or in all respects, as to any representation or warranty qualified by a standard of materiality) on the date of this Agreement and at and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects (or in all respects, if qualified by a standard of materiality) as of such specific date and except for such breaches of representations and warranties as of the date of this Agreement that have been cured on or prior to the earlier to occur of (i) the 30th day after written notice to the effect of any breach, and (ii) the fifth calendar day prior to the Closing Date).
(c) Seller shall have performed in all material respects and complied with all of its obligations hereunder the covenants and agreements required by the terms hereof to be performed or complied with by it Seller 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 of the documents it may reasonably request relating described in Section 9.1.
(e) Subject to the satisfaction of Buyer’s obligations set forth in Section 9.2(c), Seller shall have caused Chicago Title Insurance Company to have irrevocably committed to issue to Buyer title policies in favor of Buyer for each Acquired Owned Real Property in the amount of the Book Value of such Acquired Owned Real Property in accordance with the procedures set forth in Section 6.13, together with endorsements for same as survey zoning (iinsuring the use of the property as a commercial banking branch and the current use of the property, if different), comprehensive, contiguity (if applicable), location, access, separate tax lot, subdivision (if applicable), and arbitration deletion, to the extent available in the State of Illinois.
(f) No court or other Governmental Body of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, judgment, decree, injunction or other order (whether temporary, preliminary or permanent) which is in effect and prohibits or makes illegal the existence consummation of Seller and its Subsidiaries the transaction contemplated hereby.
(including g) Buyer shall have received Landlord Consents with respect to the Purchased Subsidiaries) and Leases (ii) the authority of Seller for this Agreementexcept Leases associated with a Rejected Branch as contemplated by Section 6.12 hereof), all which Landlord Consents must be in form and substance reasonably satisfactory to Buyer; and.
(eh) There shall not have occurred a Seller Material Adverse Effect unless such Seller Material Adverse Effect has been cured on or prior to the earlier to occur of (i) the 30th day after written notice to the effect of any breach and (ii) the fifth calendar day prior to the Closing Date.
(i) The proceeds Book Value of the Debt Financing shall have been received by Buyer, or Loans included in the Acquired Assets as of the Closing Date shall be fully available not less than $315,000,000 (or $335,000,000 if Buyer shall not have purchased from First Bank Business Capital, Inc. pursuant to Buyer, on substantially the terms and conditions set forth ABL Purchase Agreement at least $100,000,000 at “Par Value” (as defined in the Debt Commitment Letter ABL Purchase Agreement) of asset-based loans as determined on the closing date thereunder).
(including j) The Book Value of all Deposits included in the Assumed Liabilities as of the Closing Date shall be not less than $1.0 billion; provided that for purposes of the computation contemplated by this clause (j) 20% of the Deposits of the Rejected Branches shall be excluded.
(k) Seller will be a “well capitalized” institution pursuant to Federal banking regulations, as determined by Seller in good faith and in consultation with Buyer on a pro forma basis after giving effect to any changes the Acquisition.
(l) Buyer shall not have excluded from this Acquisition pursuant to the “market flex” provisions thereofof Section 6.12 (which relates to Landlord Consents); provided that , Section 6.13 (which relates to title insurance and land surveys) and Section 6.15 (which relates to environmental liabilities) more than one (1) Branch.
(m) The employment agreements between Buyer and the persons listed on Schedule 8.1(m), which employment agreements have been executed on or prior to the date hereof and made effective as of the Closing Date, shall remain in full force and effect on and as of the Closing Date and Buyer shall be satisfied that such person intends to honor and not be entitled to assert the failure rescind such employment agreement.
(n) At least eighty percent (80%) of the condition set forth total number of commercial lenders and business bankers who are Potential Employees to whom Buyer has made an offer of employment shall have accepted Buyer’s offer of employment.
(o) Seller shall have terminated or amended to Buyer’s satisfaction all agreements and arrangements pursuant to which any other Person is required or permitted to use the name “First Bank” or any variation thereof in connection with issuing credit cards, debit cards, or prepaid cards within the Geographic Region.
(p) FB Parent shall have delivered to Buyer (i) a guaranty, pursuant to which it shall have guaranteed the obligations of Seller under this Agreement, and (ii) a pledge agreement, pursuant to which it shall have pledged and delivered to Buyer $2,000,000 in cash for a period of two (2) years as collateral security for FB Parent’s obligations under such guaranty, which guaranty and pledge agreement shall be in form and substance reasonably acceptable to Buyer.
(q) Buyer shall have received the funds, if any, and documents described in 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 consummated9.1 below.
Appears in 2 contracts
Samples: Purchase and Assumption Agreement (First Banks, Inc), Purchase and Assumption Agreement (Firstmerit Corp /Oh/)
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 (or, to the extent permitted by Applicable Law, waiver by Buyer) of the following further conditions:
(ia) Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, except for those covenants that are qualified with respect to materiality, which shall be complied with in all of its obligations hereunder required to be performed by it on or prior to the Closing Date, respects; and
(iib) the representations and warranties of Seller contained set forth in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) §3 above shall be true when made and correct in all material respects at and as of the Closing Date, except for those representations and warranties that are qualified with respect to materiality, which shall be complied with in all respects; and
(c) Seller shall have procured all of the consents and approvals specified in §5.2 above; and
(d) no Proceeding shall be pending or threatened before any Governmental Authority or arbitral body wherein an unfavorable Order would (1) prevent consummation of any of the transactions contemplated by this Agreement, (2) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (3) have a material adverse effect on the right of Buyer to own the Shares and to operate the businesses of the Company as if made at and as of such date, with only such exceptions as would not, individually presently operated; and
(e) there shall have occurred no event or circumstance resulting in a material adverse change in the aggregatebusiness, reasonably be expected to have a Material Adverse Effect and financial condition, operations, or results of operations of the Company, since the date of this Agreement; and
(iiif) Buyer shall have received a certificate signed by an the resignations, effective as of the Closing, of each director and officer of Seller the Company other than those whom Buyer shall have specified in writing at least five business days prior to the foregoing effect;Closing; and
(bg) all consents of third parties required by Prior to March 29, 2007, Buyer shall have obtained a satisfactory Survey and Title Commitment with respect to the agreements listed real property described in Section 10.02(b) §3.23 and Buyer shall be satisfied with its environmental investigation of the Disclosure Schedule shall have been obtained;real property described in §3.23, each in Buyer’s reasonable discretion; and
(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;
(dh) Buyer shall have received all documents it may reasonably request relating to from Seller a duly executed Release in the form of EXHIBIT 6.1(h); and
(i) Buyer shall have received from Seller’s internal general counsel an opinion as to the existence matters set forth in EXHIBIT 6.1(i) attached hereto, addressed to Buyer, dated as of the Closing Date; and
(j) each of Buyer, Seller, and Escrow Agent shall have executed and delivered the escrow agreement in the form of EXHIBIT 6.1(j) (the “Escrow Agreement”); and
(k) Buyer and Seller and its Subsidiaries shall have entered into a mutually acceptable transition services agreement covering the transition of certain information technology functions to Buyer after the Closing; and
(including l) Seller shall have caused the Purchased SubsidiariesCompany to transfer to Seller at or prior to the Closing (1) all of the Company’s accounts receivable with respect to customers other than Buyer, and (ii2) the authority Laser Table; and
(m) Seller shall have delivered, or caused to be delivered, to Buyer all records related to the intangible assets of the Company within Seller’s possession or control, including any files related to the prosecution of patent or trademark registrations or other Intellectual Property of the Company; and
(n) Seller shall have obtained all lien releases and instruments necessary for this Agreementthe release and termination of any liens, security interests and encumbrances upon the Company’s assets, including without limitation all UCC-3 lien releases and terminations with respect to filed UCC financing statements; and
(o) Seller shall have assumed all of the Pre-Closing Debt, Pre-Closing Checks, Assumed Accrued Liabilities and Pre-Closing Payables; and
(p) Seller shall have delivered to Buyer all updates to the Disclosure Schedule that are to be provided by Seller, which shall be acceptable in form and substance to Buyer, and Buyer shall not have objected to the inclusion of any such updates; and
(q) Seller shall have delivered to Buyer a FIRPTA certificate in form reasonably satisfactory acceptable to Buyer; and
(er) The proceeds Seller and Buyer shall have completed a physical inventory of the Debt Financing Inventories and shall have been received by Buyer, or shall be fully available to Buyer, on substantially agreed upon the terms and conditions set forth in the Debt Commitment Letter Estimated Purchase Price; and
(including after giving effect to any changes pursuant to the “market flex” provisions thereof); provided that Buyer s) there shall not be entitled any fact or circumstance uncovered by Buyer since the date of this Agreement in the course of its continuing business, financial, legal, environmental and accounting due diligence investigation regarding Seller, the Company, and the Company’s assets that has had or would likely have a material adverse effect on the Company, its assets or its business or on the Seller’s ability to assert consummate the failure transactions contemplated hereunder; and
(t) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified in (a) — (e) above is satisfied in all respects. Buyer and ARI may waive any condition set forth specified in this Section 10.02(e) if §6.1 by jointly providing written notice of such waiver to Seller at or prior to the failure of the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummatedClosing.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Steel Technologies Inc), Stock Purchase Agreement (American Railcar Industries, Inc./De)
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:
(ia) Each 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) and the representations and warranties of each Seller contained in this Agreement and in any certificate or other writing delivered by such Seller pursuant hereto (disregarding all i) that are qualified by materiality and or Material Adverse Effect qualifications) shall be true when made and at and as of the Closing Date, Date as if made at and as of such date, with only and (ii) that are not qualified by materiality or Material Adverse Effect shall be true in all material respects at and as of the Closing Date as if made at and as of such exceptions as would not, individually or time.
(b) There shall have been no material adverse change in the aggregatebusiness, affairs, prospects, operations, properties, assets or condition of the Company and its Subsidiaries, taken as a whole, since the Balance Sheet Date.
(c) The President or Chief Executive Officer of the Company shall deliver to Buyer at the Closing a certificate stating that the conditions specified in the foregoing (a) and (b) have been fulfilled.
(d) There shall not be threatened, instituted or pending any action or proceeding by any Person before any Governmental Authority, (i) seeking to restrain, prohibit or otherwise interfere with 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 or 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, (ii) 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 or (iii) 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.
(e) 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, could reasonably be expected to, directly or indirectly, result in any of the consequences referred to have a Material Adverse Effect and in Sections 8.02(d)(i) through8.02(d)(iii).
(iiif) Buyer shall have received a certificate signed by an officer all of Seller to the foregoing effect;PRC Regulatory Approvals.
(bg) all consents of third parties required by Buyer or the agreements listed in Section 10.02(b) of the Disclosure Schedule Company, as applicable, shall have been obtained;
(c) received or be satisfied that it will receive all governmental licenses, authorizations, permits, consents and approvals required contemplated by Section 3.03 or otherwise necessary in connection with the consummation of the transactions contemplated by this Agreement or to enable the Company and the Subsidiaries to continue to carry on the Business their businesses 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;currently conducted.
(dh) Buyer shall have received all documents it may reasonably request relating to (i) the existence of Seller each Seller, the Company and its Subsidiaries (including the Purchased Subsidiaries) , as applicable, and (ii) the authority of each Seller for to enter into this Agreement, all in form and substance reasonably satisfactory to Buyer; and, including a good standing certificate or similar legal document under the Applicable Law for each Subsidiary of the Company dated within five days prior to the Closing Date.
(ei) Buyer shall have obtained funds sufficient to enable it to pay the Purchase Price.
(j) Buyer shall have received certification signed by each Seller to the effect that each such Seller is not a “foreign person” as defined in Section 1445 of the Code.
(k) Buyer shall have received from Silicon Legal Strategy, counsel for the Company, an opinion, dated as of the date hereof, in substantially the form attached hereto as Exhibit D.
(l) The proceeds Company shall have entered into an employment agreement with each Key Employee in the form and substance satisfactory to both Buyer and such Key Employee (each an “Employment Agreement”) which shall include, among others, provisions substantially similar in scope to the confidentiality, assignment of inventions, non- solicitation and non-competition obligations provided for herein and otherwise customary for the industry.
(m) Buyer and the Company shall have received an indebtedness pay-off letter from each of Xx. Xxxxxxx Xxxxx and Xx. Xxxxxxx Sales in a form reasonably satisfactory to Buyer and the Company.
(n) Buyer shall have received evidence of termination or amendment of the Debt Financing VK Agreement pursuant to which the Company, any of its Subsidiaries and Buyer shall be relieved from any and all liabilities arising from or in connection with the VK Agreement upon the payment required to be made by Buyer in accordance with Section 2.02(a)(ii) at Closing.
(o) Buyer and the Company shall have been received a release and acknowledgment letter from each Person entitled to a change of control or similar payment in connection with the transaction contemplated by Buyer, or shall be fully available this Agreement in a form reasonably satisfactory to Buyer, on substantially releasing the terms Company, any of its Subsidiaries and conditions set forth Buyer from any and all liabilities arising from or in connection with the change of control or similar provisions contained in the Debt Commitment Letter offer letter or other agreements that he/she has entered into with the Company or its Subsidiaries.
(including after giving effect to any changes pursuant p) The Company shall have entered into a contract term extension agreement with Yahoo! Inc. to the “market flex” provisions thereof); provided that Buyer reasonable satisfaction of Buyer.
(q) Mr. Xxxx Xxxxxxxx shall not be entitled to assert have exercised the failure warrants issued by Xxxxxxx Xxxxx in respect of a total of 688,160 shares of the condition set forth in this Section 10.02(eCommon Stock.
(r) Each Seller shall have delivered to Buyer (i) an Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification) if the failure such Seller is a “United States person” as defined in Section 7701(a)(30) of the Debt Financing to be consummated has resulted solely from the failure Code; or (ii) an appropriate Internal Revenue Service Form W-8 (Certificate of Foreign Status) if such Seller is not a “United States person” as defined in Section 7701(a)(30) of the Equity Financing to be consummatedCode.
Appears in 2 contracts
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 ASFC 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 ASFC 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 (without giving effect to any materiality qualifications or exceptions contained therein), except for those representations and warranties made as of a specified date, with only which shall be true and correct as of the date specified (without giving effect to any materiality qualifications or materiality exceptions contained therein); provided, that this condition (ii) shall be deemed satisfied if any inaccuracies in any of such representations and warranties at and as of the applicable date (without giving effect to any materiality qualifications or materiality exceptions as contained therein) would not, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect on ASFC, other than those resulting from (A) any event, occurrence, development or state of circumstances or facts affecting the property and casualty insurance industry as a whole, any Catastrophe or any change in general economic conditions (including but not limited to a change in interest rates) or (B) any obligation or liability that ASFC or any of its subsidiaries has or may have in connection with, as a result of or arising out of any insurance or reinsurance or indemnity policy, surety bond or similar contract or undertaking issued or entered into by ASFC or any Subsidiary of ASFC in the ordinary course of business, and (iii) Buyer shall have received a certificate signed by an the chief financial officer of Seller ASFC to the effect that the foregoing effect;conditions have been satisfied.
(b) all consents of third parties required by the agreements listed in Section 10.02(b) of the Disclosure Schedule ASFC 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 GAAP equity immediately prior to the “market flex” provisions thereof)Effective Time equal to at least 90% of ASFC's GAAP equity as of March 31, 1997; provided provided, that Buyer shall not be entitled to assert the failure of in determining whether the condition set forth in this Section 10.02(e10.2(b) if has been satisfied, changes in ASFC's GAAP equity after March 31, 1997 resulting from FAS 115 mark-xx-market accounting shall be excluded from the failure calculation of ASFC's GAAP equity on the date in question.
(c) Buyer shall have received a certificate, dated as of the Debt Financing to be consummated has resulted solely Effective Time, from the failure secretary or assistant secretary of ASFC certifying as to the accuracy and completeness of the Equity Financing attached Articles of Incorporation and bylaws, and resolutions, consents and authorizations with respect to the execution and delivery of this Agreement and the transactions contemplated hereby.
(d) No Governmental Body shall have commenced any proceeding seeking a temporary restraining order, preliminary or permanent injunction or other order preventing the consummation of the transactions contemplated hereby, other than any such proceeding which, in the reasonable judgment of Buyer, would not be consummatedreasonably likely, assuming such consummation occurs, to have a Material Adverse Effect on ASFC or Buyer; provided that Buyer shall have used its reasonable best efforts to have such proceeding dismissed or terminated.
Appears in 2 contracts
Samples: Merger Agreement (American States Financial Corp), Merger Agreement (Lincoln National Corp)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is transactions contemplated by this Agreement shall be subject to the satisfaction (or, to the extent permitted by Applicable Law, or 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 at or prior to the Closing Date, of the following conditions:
(iia) the The representations and warranties of each of the Company and Seller contained set forth in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall be true when and correct in all respects as of the Closing Date with the same force and effect as though such representations and warranties were made and at on and as of the Closing Date.
(b) Each of the agreements and covenants of Seller, XxXxxxxx and the Company to be performed and complied with by Seller, XxXxxxxx and the Company pursuant to this Agreement prior to the Closing Date shall have been duly performed and complied with in all material respects.
(c) Seller and the Company shall have delivered the documents required to be delivered by Seller and the Company pursuant to Section 3.2.
(d) The Escrow Agreement attached hereto as Exhibit A shall have been duly executed by the parties thereto.
(e) The Company shall have increased its authorized share capital from 40,000,000 shares of common stock, par value $.0001 each, to 90,000,000 shares of common stock, par value $.0001 each, and shall have provided Buyer with (i) a certified copy of the approvals of the stockholders of the Company and the Board of Directors of the Company in connection therewith, and (ii) evidence that any filings with any Governmental Authorities required to be made in connection with the increase of the authorized share capital have been duly made by the Company.
(f) The Closing of the sale of the Purchase Shares and the Closing of the sale of the Subscription Shares to Buyer shall take place simultaneously on the Closing Date; provided, however, that Buyer shall not be obligated to purchase the Subscription Shares or the Purchase Shares if the purchase and sale of the Subscription Shares and the Purchase Shares cannot be completed simultaneously on the Closing Date.
(g) Each director and officer of the Company appointed by Seller shall have submitted their resignations, as if made at and the case may be, effective as of such datethe Closing Date, with only such exceptions as would notin each case without liability to the Company.
(h) Since December 31, individually or 2003, there shall have been no material adverse change in the aggregatebusiness or financial condition of the Company.
(i) The Company shall have delivered to Buyer audited financial statements of the Company as of and for the period ended December 31, reasonably 2003
(j) The Company shall have filed its annual report on Form 10-KSB for the period ended December 31, 2003 as required by the Exchange Act, and shall have provided Buyer with evidence thereof.
(k) Seller and the Company shall have received all authorizations, consents and approvals of any Governmental Authority or regulatory or enforcement entity required, if any, in connection with the consummation of the transactions contemplated hereby.
(l) Seller shall have delivered to Buyer copies of all consents and/or approvals of the shareholders of, and the Board of Directors of, the Company to the transactions contemplated hereby that may be expected to have a Material Adverse Effect and required under applicable laws;
(iiim) Buyer shall have received a certificate signed by an officer opinion of counsel to Seller and an opinion of counsel to the foregoing effect;
(b) all consents of third parties required by Company with respect to the agreements listed in Section 10.02(b) Purchase Shares and the Subscription Shares, each addressed to Buyer and dated as of the Disclosure Schedule shall have been obtained;
(c) all governmental licenses, authorizations, permits, consents Closing Date 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
(en) The proceeds of agreement referred to in Schedule 4.11 (the Debt Financing “Consulting Agreement”) shall have been received terminated, and Seller shall have provided Buyer with satisfactory evidence (i) of the termination of the Consulting Agreement, and (ii) that no amounts are due and/or payable by Buyerthe Company to XxXxxxxx under the Consulting Agreement, 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 whether pursuant to the “market flex” provisions thereof); provided that Buyer shall not be entitled to assert the failure its terms or as a consequence 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 consummatedtermination thereof.
Appears in 2 contracts
Samples: Stock Purchase and Subscription Agreement (MGCC Investment Strategies Inc), Stock Purchase and Subscription Agreement (MGCC Investment Strategies Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated by this Agreement is subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by BuyerBuyer in its sole discretion) of the following further conditions:
(ia) 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 The representations and warranties of Seller contained set forth in this Agreement shall have been true and correct (disregarding all materiality or similar qualifiers contained therein) at and Material Adverse Effect qualifications) as of the date hereof and shall be true when and correct at and as of the Closing Date as if made and at and as of the Closing Date, as if made at except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date, with only except, in each case, to the extent that any such exceptions as would notfailures to be so true and correct, whether individually or in the aggregate, have not had, and would not be reasonably be expected to have have, a Material Adverse Effect Effect.
(b) Seller shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller at or prior to the Closing.
(iiic) Buyer shall have received a certificate dated the Closing Date signed on behalf of Seller by an officer of Seller to the foregoing effect;effect that the conditions set forth in Sections 8.2(a) and 8.2(b) have been satisfied (the “Seller Closing Certificate”).
(bd) all consents of third parties required by the agreements listed in Section 10.02(b) of the Disclosure Schedule There shall not have been obtained;
(c) all governmental licenses, authorizations, permits, consents occurred 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 continuing a Material Adverse Effect;Effect since the date of this Agreement.
(de) Seller shall have delivered to Buyer all agreements and other documents required to be delivered by Seller to Buyer pursuant to Section 3.2 of this Agreement.
(f) Buyer shall have received evidence in form and substance satisfactory to Buyer that all documents it may reasonably request relating Liens other than Permitted Liens with respect to the Purchased Assets have been released.
(g) Each of the distribution agreements set forth on Schedule 8.2(g) shall have been extended to the date set forth on Schedule 8.2(g).
(h) The IS/CS Transfer shall have been completed; provided, however, that this condition to the obligation of Buyer to consummate the transactions contemplated by this Agreement shall be deemed to be automatically waived by Buyer if (i) the existence of Seller and has fulfilled its Subsidiaries (including the Purchased Subsidiaries) and obligations under Section 7.9, (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 IS/CS Transfer shall have been received by Buyernot occurred on or before October 15, or shall be fully available to Buyer2016, on substantially and (iii) 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 Closing has 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 consummatedoccurred.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Alphatec Holdings, Inc.), Purchase and Sale Agreement (Globus Medical Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate effect the Closing is transactions contemplated by this Agreement with respect to the Purchased Assets at any Jointly Owned Station shall be subject to the satisfaction (oror the waiver, to the extent permitted by Applicable 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 at 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 following conditions:
(a) The waiting period with respect to such Purchased Assets under the HSR Act applicable to the consummation 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 transactions contemplated hereby shall have received a certificate signed by an officer of Seller to the foregoing effectexpired or been terminated;
(b) all consents No preliminary or permanent injunction, order or decree by any Governmental Authority which prevents the consummation of third parties required the transactions contemplated hereby or by the agreements listed in Section 10.02(b) of the Disclosure Schedule Additional Agreements with respect to such Purchased Assets shall have been obtainedissued and remain in effect (Buyer agreeing to use Commercially Reasonable Efforts to have any such injunction, order or decree lifted), and no applicable Law shall be in effect which prohibits the consummation of the transactions contemplated hereby or thereby with respect to such Purchased Assets;
(c) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business as now conducted Buyer shall have been transferred obtained the Buyer's Required Regulatory Approvals set forth on Schedule 7.1(c) to or otherwise obtained by Buyer on or before the Closing Dateextent relating to such Purchased Assets, with only such exceptions as would not reasonably which shall be expected to have a Material Adverse Effect;
(d) final and non-appealable, and 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 Agreementevidence thereof, all in form and substance reasonably satisfactory to Buyer, and all conditions to the effectiveness thereof prescribed therein or otherwise by Law shall have been satisfied or waived, it being understood that the imposition by any Governmental Authority of any such condition to the grant or issuance of any such consent or approval requiring any action or omission by Buyer shall not affect Buyer's obligation to consummate the transactions contemplated hereby or by the Additional Agreements unless such condition would, individually or in the aggregate, have a Regulatory Material Adverse Effect on Buyer;
(d) Seller shall have obtained the Seller's Required Regulatory Approvals set forth in Schedule 7.2(c) to the extent relating to such Purchased Assets, which shall be final and non-appealable, and which shall not include any condition requiring any action or omission by Buyer which condition would, individually or in the aggregate, have a Regulatory Material Adverse Effect on Buyer; and Buyer shall have received evidence thereof;
(e) Seller shall have performed and complied with the covenants and agreements contained in this Agreement which are required to be performed and complied with by Seller at or prior to the Closing and which relate to such Purchased Assets;
(f) The representations and warranties of Seller set forth in this Agreement which relate to such Purchased Assets shall be true and correct in all material respects as though made at and as of the Closing Date (other than such (i) representations and warranties that are made as of a specific date which shall have been true and correct as of such date and (ii) representations and warranties that are qualified by reference to materiality or Material Adverse Effect which shall be true and correct in all respects);
(g) Between the date hereof and the Closing Date, no Material Adverse Effect with respect to such Purchased Assets or such Jointly Owned Station shall have occurred and be continuing;
(h) Buyer shall have received a certificate from an authorized officer of Seller, dated the Closing Date, to the effect that, to Seller's Knowledge, the conditions set forth in Sections 7.1(e), (f) and (g) have been satisfied; and
(ei) The proceeds of the Debt Financing Buyer shall have been received by Buyeran opinion from Seller's counsel, or which counsel shall be fully available reasonably acceptable to Buyer, on dated the Closing Date, 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 form 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 consummatedExhibit F hereto.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Pepco Holdings Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to pay the Purchase Price and consummate the transactions to be performed by it in connection with Closing is subject to the satisfaction (orsatisfaction, to the extent permitted by Applicable Law, or waiver by Buyer) Buyer at its sole discretion, of the following further conditions:
(i) Seller shall have performed in all material respects all (A) each 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 Sections 5(a), 5(b), 5(c)(ii)(B) and Material Adverse Effect qualifications5(i) shall be true when and correct as of the Execution Date and as of the Closing as though made on and as of the Closing (except to the extent such representations and warranties expressly relate to an earlier date, in which case, such representations and warranties shall be true and correct in all material respects as of such earlier date) in all respects except for de minimis inaccuracies, and (B) each of the other representations and warranties of Seller herein that are qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, in each case as of the Execution Date and as of the Closing as though made at and as of the Closing Date(except to the extent such representations and warranties expressly relate to an earlier date, as if made at in which case, such representations and warranties shall be true and correct in all material respects as of such earlier date);
(ii) Seller shall have performed and complied in all material respects with all covenants required by this Agreement to be performed or complied with by Seller prior to Closing;
(iii) Seller shall have delivered to Buyer a certificate, with only dated the Closing Date and signed by a duly authorized executive officer (in such exceptions officer’s capacity as would notsuch and not individually) of Seller, certifying to the effect that the conditions set forth in Section 9(b)(i) and Section 9(b)(ii) have been satisfied;
(iv) the Sale Order shall have been entered and become a Final Order;
(v) Seller shall be prepared to deliver, or cause to be delivered, the items set forth in Section 4(b);
(vi) from the Execution Date until the Closing, there shall not have been any change, effect, event, condition, circumstance, occurrence or development that, individually or in the aggregate, has, or would reasonably be expected to have have, a Material Adverse Effect and material adverse effect on (iiia) Buyer shall have received a certificate signed by an officer the assets, properties, Liabilities, business, operations or condition (financial or otherwise) of Seller in respect of the Business or (b) the ability of Seller to consummate the foregoing effecttransactions contemplated hereby;
(bvii) Xxxxxxxxx Xxxxx shall have entered into a written agreement for employment with Buyer in form and substance satisfactory to Buyer; and
(viii) 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 licensesConsents, 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 consummatedobtained.
Appears in 2 contracts
Samples: Stalking Horse Asset Purchase Agreement (BioRestorative Therapies, Inc.), Asset Purchase Agreement (BioRestorative Therapies, Inc.)
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) Each Seller shall have performed in all material respects all of its covenants, agreements and obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of Seller Sellers and the Founder Shareholders contained in this Agreement and in any certificate or other writing delivered by Sellers pursuant hereto (disregarding all A) that are qualified by materiality and Material Adverse Effect qualifications) or any similar qualification or standard shall be true when made and at and as of the Closing Date, Date as if made at and as of such datedate and (B) that are not qualified by materiality or any similar qualification or standard shall be true in all material respects at and as of the Closing Date as if made at and as of such time, 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 each of Seller Sellers and the Founder Shareholders, as applicable, to the foregoing effect;
(b) all consents of third parties required by Sellers shall have procured that the agreements listed in Section 10.02(b) Outgoing Directors be resigned and the Buyer Directors be appointed through board resolutions to the Board effective as of the Disclosure Schedule shall have been obtainedClosing;
(c) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business as now conducted There shall not have been transferred to occurred any Material Adverse Effect or otherwise obtained by Buyer on or before the Closing Date, with only such exceptions as any event that would not reasonably be expected to have result in a Material Adverse Effect;; and
(d) Buyer Each of GSR Ventures and Ceyuan Entities shall have received all documents it may reasonably request relating given written notice to (i) the existence Company, pursuant to section 12.3 of the Shareholders Agreement, stating the name and address of Buyer and identifying the Subject Ordinary Shares as to which the rights of such Seller and its Subsidiaries (including registration rights) under the Purchased Subsidiaries) and (ii) the authority of Seller for this Agreement, all in form and substance reasonably satisfactory Shareholders Agreement are being assigned 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.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (ZheJiang AoKang Shoes Co., Ltd.)
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:
(a) (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 (and in any certificate or other writing delivered by Seller pursuant hereto, disregarding all qualifications and exceptions contained therein relating to materiality and or Material Adverse Effect qualifications) Effect, shall be true when made and at and as of the Closing Date, as if made at and as of such date, date with only such exceptions as would not, individually or not in the aggregate, aggregate reasonably be expected to have a Material Adverse Effect and (iii) Buyer shall have received a certificate signed by an officer the Vice President of Seller to the foregoing effect;.
(b) all consents of third parties required No court, arbitrator or governmental body, agency or official shall have issued any order, and there shall not be any statute, rule or regulation, restraining the effective operation by the agreements listed in Section 10.02(b) Buyer of the Disclosure Schedule business of the Company after the Closing Date, and no proceeding challenging this Agreement or the transactions contemplated hereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been obtained;instituted by any Person before any court, arbitrator or governmental body, agency or official and be pending.
(c) all governmental Execution and delivery of other relevant agreements, including non-compete, employment agreements, trademark or software licenses, authorizationsleases, permitssupply, consents service or administrative agreements or other transition agreements.
(d) Seller shall have received all consents, authorizations or approvals from the governmental agencies referred to in Section 3.03(a), in each case in form and approvals required substance reasonably satisfactory to carry on the Business as now conducted Buyer, and no such consent, authorization or approval 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;revoked.
(de) Buyer shall have received all documents it may reasonably request relating to (i) the existence of Seller Seller, the Company 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.
Appears in 2 contracts
Samples: Stock Purchase Agreement (360 Global Wine Co), Stock Purchase Agreement (360 Global Wine Co)
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, or waiver by Buyer) Buyer in its sole discretion), of the following further conditions:
(i) Each of Seller and Parent 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 each of Seller and Parent contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) in any certificate or other writing delivered by Seller or Parent pursuant hereto shall be true when made and at and as of the Closing Date, Date as if made at and as of such date (except to the extent a representation or warranty is expressly made as of an earlier date, in which case such representation or warranty shall be true at and as of such date) with only such exceptions as would not, individually or not in the aggregate, reasonably be expected to aggregate have a Material Adverse Effect and (iii) Buyer shall have received a certificate signed by an officer the Senior Vice President/Chief Financial Officer of each of Seller and Parent to the foregoing effect;. For purposes of Section 10.02(a)(ii), the representations and warranties of each of Seller and Parent contained in this Agreement or in any certificate or writing delivered by Seller or Parent pursuant hereto shall be deemed to have been made without any qualifications as to materiality and, accordingly, all references therein to “material,” “Material Adverse Effect,” “in all material respects” and similar qualifications as to materiality shall be deemed to be deleted therefrom (except where any such provision requires disclosure of lists of items of a material nature or above a specified threshold).
(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 each of Seller and its Parent, the Companies and the Subsidiaries (including the Purchased Subsidiaries) and (ii) the authority of each of Seller for and Parent to enter into and perform this Agreement, all in form and substance reasonably satisfactory to Buyer; .
(c) Buyer shall have received a certificate signed by Seller to the effect that Seller is not a “foreign person” as defined in Section 1445 of the Code and, upon Buyer’s request, any clearance certification or similar document(s) that, in Buyer’s determination, may be required by any state taxing authority in order to relieve Buyer of any obligation to withhold any portion of the Purchase Price.
(d) Seller shall have delivered to Buyer evidence of (i) the release, concurrently with Closing, of all Liens listed on Schedule 10.02(d) with respect to the property or assets of the Companies and the Subsidiaries, including Liens securing the obligations under or in connection with the Third Amended and Restated Credit Agreement dated as of May 11, 2000 (as subsequently amended from time to time) among Seller and the other parties listed on the signature pages thereto (the “Seller Credit Agreement”) (ii) the repayment of all outstanding Indebtedness of the Companies and the Subsidiaries (other than liabilities under capitalized leases identified on Schedule 3.10), (iii) the repayment or other cancellation of all intercompany accounts between Parent, Seller or its subsidiaries (other than any Company or an Subsidiary), on the one hand, and any Company or any Subsidiary on the other hand, and (iv) the release of all guarantees by any Company or any Subsidiary of any Indebtedness or other obligation of any third party, including the Seller or any of its Affiliates, including, without limitation, any such guarantees under the Seller Credit Agreement and the Indenture between Seller and the State Street Bank and Trust Company, dated October 15, 1998 (the “Seller Indenture”), in each case in form and substance reasonably satisfactory to the Buyer.
(e) The proceeds Buyer shall have obtained an aggregate of $80,000,000 of financing from the lenders referred to in the Commitment Letters set forth as items 1 and 2 of Schedule 4.05 and on the terms and structure and in the amounts contemplated in the term sheets attached to such Commitment Letters.
(f) Buyer shall have received a written opinion from counsel for the Seller, dated as of the Debt Financing shall have been received by BuyerClosing Date, or shall be fully available addressed to Buyer, on substantially in the terms form of Exhibit A hereto.
(g) Buyer shall have received copies of the third party consents and conditions approvals set forth in the Debt Commitment Letter (including after giving effect to any changes pursuant to the “market flex” provisions thereofon Schedule 10.02(g); 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.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Decrane Holdings Co), Stock Purchase Agreement (Decrane Aircraft Holdings Inc)
Conditions to Obligation of Buyer. The obligation obligations of Buyer to consummate the Closing is are subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by Buyer) of the following further conditions:
(i) Seller shall have performed in all material respects all of its obligations hereunder under the Transaction Documents 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) the Transaction Documents shall be true when made and correct at and as of the date of this Agreement and as of the Closing Date, as if made at and as of each such date, with except that those representations and warranties which are by their express terms made as of a specific date shall be true and correct only as of such exceptions as would notdate, individually or in the aggregate, each case except for inaccuracies that could not reasonably be expected to have a Material Adverse Effect on the HPG Business (except with respect to the representations and warranties contained in Sections B.01 and B.02, which shall be true and correct subject only to the exceptions set forth therein), and (iii) Buyer shall have received a certificate signed by an executive officer of Seller to the foregoing effect;
(b) all consents of third parties required by since March 29, 1998, no event has occurred that has had a Material Adverse Effect on the agreements listed in Section 10.02(b) of the Disclosure Schedule shall have been obtainedHPG Business;
(c) all governmental licenses, authorizations, permits, consents and approvals required to carry on Seller or the Business as now conducted applicable Affiliated Transferor shall have been transferred to or otherwise obtained by Buyer executed and delivered, on or before the Closing Date, with only such exceptions as would not reasonably the Transaction Documents that are required to be expected to have signed by a Material Adverse EffectSeller Company;
(d) Seller or the applicable Affiliated Transferor, as the case may be, shall have obtained the consents, approvals or permits contemplated by Attachment XIII to this Agreement;
(e) Seller or the applicable Affiliated Transferor shall have prepared and delivered on or before the Closing Date a patent docket and a trademark docket, each of which shall set forth with particularity and accuracy with respect to all Intellectual Property that constitute Transferred Assets all actions known as of the date of preparation that are required to be taken to maintain such Intellectual Property within the six months following the Closing Date;
(f) Buyer shall have received all documents it may reasonably request relating an opinion of Miles & Stockbridge P.C. in the form attached hereto as Attachment XXIX 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
(eg) The proceeds Buyer shall have received audited financial statements of the Debt Financing HPG Business consisting of the balance sheets as of December 31, 1997 and 1996 and the related statements of operations, owners' equity and cash flows for each of the three years in the period ended December 31, 1997, together with the opinion of Ernst & Young LLP thereon, which opinion shall state that such financial statements have been received by Buyer, or prepared in accordance with GAAP and shall be fully available to Buyerwithout qualification, 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 unaudited financial statements of the condition set forth in this Section 10.02(e) if the failure HPG Business consisting of the Debt Financing to be consummated has resulted solely from balance sheet as of March 28, 1998, and statements of operations and cash flows for the failure of the Equity Financing to be consummatedquarter then ended.
Appears in 2 contracts
Samples: Transaction Agreement (Windmere Durable Holdings Inc), Transaction Agreement (Black & Decker Corp)
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 at or prior to the Closing Date, (ii) the representations and warranties of Seller and the Members contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) as of the date hereof shall be true when made and correct in all respects 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 the President of Seller and each Member certifying as to the foregoing effect;(i) and (ii) hereof.
(b) No provision of any applicable law or regulation and no judgment, injunction, order or decree shall restrain, prohibit or otherwise interfere with the effective operation or enjoyment by Buyer of all consents of third parties required by the agreements listed in Section 10.02(b) or any material portion of the Disclosure Schedule shall have been obtained;Purchased Assets.
(c) Each Employee of Seller identified on Schedule 9.02 (each an ------------- "Employee") shall have accepted employment with Buyer and resigned his or her --------- position with Seller.
(d) Seller shall have received all governmental licensesRequired Consents in form and substance reasonably satisfactory to Buyer, authorizations, permits, consents and approvals required to carry on the Business as now conducted no such consent 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;withdrawn.
(de) Seller and Xxxx Xxxxxx shall have executed and delivered to Buyer a Settlement and Release Agreement in form and substance reasonably satisfactory to Buyer.
(f) Buyer shall have received all such closing documents as 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 Agreementrequest, all in form and substance reasonably satisfactory to Buyer; and.
(eg) The proceeds of the Debt Financing McKinsey shall have been received by Buyer, or shall be fully available signed an agreement with Buyer in form and substance satisfactory 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.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Greenwich Technology Partners Inc), Asset Purchase Agreement (Greenwich Technology Partners Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing Transactions is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Buyer) of the following further conditions:
(a) there shall not be any Order or Law in effect preventing, enjoining or otherwise prohibiting the consummation of any of the Transactions or any pending Proceeding challenging or seeking to prevent, enjoin or prohibit the consummation of the Transactions;
(b) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act and any applicable trade regulation or non-U.S. competition Laws shall have expired or otherwise been terminated and the Parties and the Seller Entities or Acquired Companies shall have received all other Consents and Permits of Governmental Bodies necessary for the consummation of the Transactions and such Consents and Permits shall be in full force and effect;
(c) (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 Article 3 (disregarding other than the Seller Fundamental Representations (except for those in Sections 3.7(a) and(b)) shall have been true and correct in all materiality respects as of the date hereof and Material Adverse Effect qualifications) shall be true when made and correct at and as of the Closing Date, or in the case of representations and warranties that are made as if made at of a specified date, such representations and warranties shall be true and correct as of such datespecified date (in each case disregarding all qualifications or limitations as to “material”, with only “materiality”, “in all material respects”, “Material Adverse Effect” or any similar term or phrase), except where the failure of such exceptions as representations and warranties to be true and correct has not had, and would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (iiiii) Buyer shall have received a certificate signed by an officer of the Seller to the foregoing effect;
Fundamental Representations (bother than those in Sections 3.7(a) all consents of third parties required by the agreements listed in Section 10.02(band(b)) of the Disclosure Schedule shall have been obtained;
(c) true and correct in all governmental licenses, authorizations, permits, consents material respects as of the date hereof and approvals required to carry on the Business shall be true and correct in all material respects at and as now conducted shall have been transferred to or otherwise obtained by Buyer on or before of the Closing Date, in each case except to the extent that the Seller Fundamental Representations are qualified by or refer to the terms “material”, “materiality”, “in all material respects” or any similar term or phrase, in which case such representations and warranties shall have been true and correct in all respects as of the date hereof and shall be true and correct in all respect at and as of the Closing Date;
(d) Seller shall have performed and complied in all material respects with only such exceptions as would all of the covenants and agreements in this Agreement to be performed by Seller prior to or at the Closing, other than under Section 4.13;
(e) during the period from the Most Recent Fiscal Quarter End through the Closing Date, there shall not reasonably be expected to have been a Material Adverse Effect;
(df) the Acquired Companies shall have been released as guarantors under the Credit Agreement, dated January 9, 2015 (as amended, modified, extended, restated, replaced, or supplemented from time to time, the “Credit Agreement”), among Seller, the Guarantors (as defined in the Credit Agreement), the Lenders (as defined in the Credit Agreement), and Xxxxx Fargo Bank, National Association, as administrative agent (the “Administrative Agent”) and the Buyer shall have received all documents it may reasonably request relating written evidence of the release of the Acquired Assets from the Liens granted thereunder;
(g) Seller shall have delivered to (i) Buyer a certificate dated as of the existence Closing Date, duly executed by an executive officer of Seller and its Subsidiaries (including Seller, certifying that each of the Purchased Subsidiariesconditions specified in Section 6.1(c), 6.1(d) and 6.1(e) have been satisfied;
(iih) Seller shall have delivered or caused to be delivered to Buyer the authority of Seller for this Agreement, all in form and substance reasonably satisfactory to Buyerdeliveries required by Section 1.16; and
(ei) The proceeds Milestone 1 under Schedule N-1 of Exhibit B to the Debt Financing Transition Services Agreement shall have been received by Buyer, or shall be fully available to Buyer, on substantially the terms and conditions set forth completed in the Debt Commitment Letter (including after giving effect to all material respects. Buyer may waive 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 specified in this Section 10.02(e) 6.1 if Buyer executes a writing so stating at or prior to the failure of the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummatedClosing.
Appears in 2 contracts
Samples: Purchase Agreement (Cree Inc), Purchase Agreement (Cree Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated hereby is subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by BuyerBuyer in its sole discretion) of the following further conditions, and promptly following the satisfaction by Seller or waiver by Buyer of the following conditions Buyer shall, subject to satisfaction or waiver of the conditions set forth in Sections 7.1 and 7.3, cause the Closing to occur:
(ia) Each of the representations and warranties of Seller set forth in this Agreement that are subject to materiality or Material Adverse Effect or similar qualifications shall be true and correct in all respects at and as of the date hereof and as of the Closing Date as though such representations and warranties were made on and as of such date (except for any such representations and warranties which address matters only as of a specified date, which representations and warranties shall be true and correct as of such specified date), and each of the representations and warranties of Seller set forth in this Agreement that are not subject to materiality or Material Adverse Effect or similar qualifications shall be true and correct in all material respects at and as of the date hereof and as of the Closing Date as though such representations and warranties were made on and as of such date (except for any such representations and warranties which address matters only as of a specified date, which representations and warranties shall be true and correct in all material respects as of such specified date) (without taking into account any disclosures to Buyer pursuant to Section 8.4 hereof)).
(b) Seller shall have performed or complied in all material respects with all of its obligations hereunder and covenants required by this Agreement to be performed or complied with by it on Seller at 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 Seller shall have been transferred delivered, or caused to or otherwise obtained by be delivered, to Buyer on or before the Closing Date, with only such exceptions as would not reasonably be expected to have a Material Adverse Effect;documents set forth in Section 6.2.
(d) Buyer The Restructuring 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; andbeen consummated.
(e) The proceeds of Since the Debt Financing Agreement Date, no Material Adverse Effect 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 consummatedoccurred.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Lin Television Corp), Stock Purchase Agreement (LIN Media LLC)
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:
(a) (i) the Company and each Seller shall have performed in all material respects all of his or its obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of the Company and each Seller contained in this Agreement (disregarding all materiality at the time of its execution and Material Adverse Effect qualifications) delivery and in any certificate or other writing delivered by the Company or a Seller pursuant hereto 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 the President of the Company and by each Seller to the foregoing effect;.
(b) all consents of third parties required No Governmental Authority shall have issued any order, and there shall not be any statute, rule or regulation, restraining the effective operation by the agreements listed in Section 10.02(b) Buyer of the Disclosure Schedule business of the Company and the Japanese Subsidiary after the Closing Date, and no proceeding challenging this Agreement or the transactions contemplated hereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been obtained;instituted by any Person before any Governmental Authority.
(c) Buyer shall have received an opinion of Xxxxxx & Xxxxxxx, LLP, counsel to the Company, dated the Closing Date, reasonably satisfactory in form and substance to Buyer. In rendering such opinion, such counsel may rely upon certificates of public officers, as to matters governed by the laws of jurisdictions other than Massachusetts, Delaware or the federal laws of the United States of America, upon opinions of counsel reasonably satisfactory to Buyer, copies of which shall be contemporaneously delivered to Buyer, and as to matters of fact, upon certificates of officers of the Company and the Japanese Subsidiary.
(d) The Company and the Japanese Subsidiary shall have received all consents, authorizations or approvals from the governmental licensesagencies referred to in Section 3.03(a), authorizationsin each case in form and substance reasonably satisfactory to Buyer, permitsand no such consent, consents and approvals required to carry on the Business as now conducted authorization or approval shall have been transferred to or otherwise obtained by Buyer on revoked.
(e) On or before the Closing Date, with only such exceptions as would not reasonably be expected the Company shall deliver to have Buyer a Material Adverse Effect;properly executed statement satisfying the requirements of Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) in a form acceptable to Buyer.
(df) Buyer shall have received all other closing documents that 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 Agreementrequest, 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.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Lionbridge Technologies Inc /De/), Stock Purchase Agreement (Lionbridge Technologies Inc /De/)
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 transactions to be performed by it on or prior to in connection with the Closing Date, is subject to satisfaction of the following conditions:
(iia) the representations and warranties of Seller contained in Section 3.1 and Article IV and in any document to be delivered in connection with this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall be true and correct when made and at and as of the Closing Date, Date (other than representations and warranties that are made as if made at of a specific date which shall have been true and correct as of such date), with only except to the extent that any failures of such exceptions as representations and warranties to be so true and correct would not, individually or in the aggregate, reasonably be expected to not have a Material Adverse Effect Effect; provided, however, that if any representation and (iii) warranty of Seller is determined to be untrue or incorrect prior to the Closing Date and such failure of such representation and warranty to be so true and correct would have a Material Adverse Effect, then Buyer shall have received a certificate signed by an officer of notify 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 upon such determination, and Seller shall have been obtained;
(c) all governmental licensesthe right, authorizationsbut not the obligation, permits, consents and approvals required to carry on the Business as now conducted shall have been transferred to or otherwise obtained by Buyer cure such failure on or before the Closing Date, in which case, if cured, such failure shall be deemed to have been waived;
(b) Seller shall have performed and complied with only such exceptions as all of its covenants hereunder through the Closing except to the extent that any failure to perform or comply would not reasonably be expected to have a Material Adverse Effect;
(c) there shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement;
(d) Buyer Seller shall have received delivered to Buyer an officer's certificate to the effect that each of the conditions specified in subsections 7.l(a)-(c) is satisfied in all documents it may reasonably request relating respects;
(e) any Governmental Approvals required to consummate the transactions contemplated by this Agreement shall have been received;
(if) the existence transactions contemplated by that certain Purchase and Sale Agreement of Seller even date between WBRD LLC, a Delaware limited liability company, and its Subsidiaries (including the Purchased Subsidiaries) and (ii) the authority of Seller for this AgreementXxxxxxxxx-Xxxxxxx Coal Company, all in form and substance reasonably satisfactory to BuyerLLC, a Delaware limited liability company, shall have consummated; and
(eg) The proceeds of the Debt Financing Seller shall have been received by Buyerdelivered to Buyer an opinion of Bartlit Xxxx Xxxxxx Xxxxxxxxx & Xxxxx, or shall be fully available such other counsel to Seller that is reasonably acceptable to Buyer, on substantially the terms and conditions set forth in the Debt Commitment Letter form attached as Exhibit F, with such qualifications and assumptions as shall be customary for opinion letters covering such matters.
(including after giving effect h) Seller shall have delivered to any changes pursuant Buyer evidence reasonably satisfactory to Buyer from (i) Pittston Coal Company and its Affiliates releasing their reversionary interest in certain of the Assets, (ii) Travelers Casualty and Surety Company of America consenting to the “market flex” provisions thereof); provided transactions contemplated by this Agreement, and (iii) PNC Bank, National Association, as agent, consenting to the transactions contemplated by this Agreement under that certain Credit Agreement, dated as of March 11, 2003, to which Seller and others is a party.
(i) Seller shall have delivered to Buyer shall not be entitled a consent reasonably satisfactory to assert Buyer from Pittston Coal Company to permit Buyer to have the failure same access that Seller has to the Records in the possession of the Pittston Coal Company. Buyer may waive any condition set forth specified in this Section 10.02(e) 7.1 if it executes a writing so stating at or before the failure of the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummatedClosing.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Natural Resource Partners Lp), Purchase and Sale Agreement (Alpha Natural Resources, Inc.)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate effect the Closing is transactions contemplated by this Agreement shall be subject to the satisfaction (oror the waiver, to the extent permitted by Applicable applicable Law, waiver by Buyer) at or prior to the Closing of the following further conditions:
(a) The waiting period under the HSR Act applicable to the consummation of the transactions contemplated hereby shall have expired or been terminated;
(b) No Order (whether temporary, preliminary or permanent) by any Governmental Authority of competent jurisdiction prohibiting, restraining, enjoining or rendering illegal the consummation of the transactions contemplated hereby shall have been issued and remain in effect and no applicable Law shall be in effect which prohibits the consummation of the transactions contemplated hereby;
(c) The Consents set forth (i) in the case of the Buyer’s Required Regulatory Approvals on Schedule 5.3(b) and (ii) in the case of Seller’s Required Regulatory Approvals on Schedule 3.3(b), shall have been duly obtained by Final Order, and all terminations or expirations of applicable waiting periods (if any) imposed by any Governmental Authority with respect to the transactions contemplated hereby (including under the HSR Act) shall have occurred;
(d) Seller shall have performed and complied in all material respects all of its obligations hereunder with the covenants and agreements contained in this Agreement which are required to be performed and complied with by it on Seller at or prior to the Closing DateClosing;
(i) The representations and warranties of the Seller set forth in Article III of this Agreement shall be true and correct in all respects (except with respect to representations and warranties in Section 3.1(a), for such inaccuracies as are de minimis relative to Section 3.1(a) as a whole); and (ii) the representations and warranties of the Seller contained set forth in Article IV of this Agreement (disregarding all x) that are qualified by reference to materiality and or Material Adverse Effect qualifications) shall be true when made and at correct in all respects as of the date of this Agreement and as of the Closing Date, Date as if though made at on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, with only in which case such exceptions representation and warranty shall be true and correct as would not, individually of such earlier date) and (y) that are not qualified by reference to materiality or in the aggregate, reasonably be expected to have a Material Adverse Effect shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of such date and time (iii) Buyer shall have received a certificate signed by an officer of Seller except to the foregoing effect;
(bextent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date) all consents of third parties required by the agreements listed except with respect to representations and warranties in Section 10.02(b4.1(a), for such inaccuracies as are de minimis relative to Section 4.1(a) 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 consummatedwhole.
Appears in 2 contracts
Samples: Merger Agreement (Dynegy Inc.), Purchase and Sale Agreement (NRG Energy, Inc.)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate effect the Closing is transactions contemplated by this Agreement shall be subject to the satisfaction (oror the waiver, to the extent permitted by Applicable applicable Law, waiver by Buyer) at or prior to the Closing of the following further conditions:
(ia) The waiting period under the HSR Act applicable to the consummation of the transactions contemplated hereby shall have expired or been terminated;
(b) No preliminary or permanent injunction, order or decree by any Governmental Authority which prevents the consummation of the transactions contemplated hereby or by the Additional Agreements shall have been issued and remain in effect (Buyer agreeing to use its reasonable best efforts to have any such injunction, order or decree lifted), and no applicable Law shall be in effect which prohibits the consummation of the transactions contemplated hereby or thereby;
(c) Buyer shall have obtained the Buyer's Required Regulatory Approvals set forth on Schedule 7.1(c), in form and substance reasonably satisfactory to Buyer (including any adverse conditions therein); and such Buyer's Required Regulatory Approvals shall be final and nonappealable;
(d) Seller shall have performed in all material respects all of its obligations hereunder performed and complied with the covenants and agreements contained in this Agreement which are required to be performed and complied with by it Seller on or prior to the Closing Date, ;
(i) The representations and warranties of Seller set forth in this Agreement that are qualified by reference to Material Adverse Effect shall be true and correct in all respects and (ii) the representations and warranties of Seller contained set forth in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) that are not so qualified shall be true when and correct in substantially all respects, in each case, as of the Closing Date as though made and at and as of the Closing Date, Date (other than representations and warranties that are made as if made at of a specific date which shall have been true and correct 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 );
(iiif) Buyer shall have received a certificate signed by from an authorized 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 licensesSeller, 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 dated the Closing Date, with only to the effect that, to such exceptions as would not reasonably be expected to officer's Knowledge, the conditions set forth in Sections 7.1(d) and (e) have a Material Adverse Effectbeen satisfied by Seller;
(dg) Buyer shall have received all documents it may an opinion from Seller's counsel, which counsel shall be reasonably request relating acceptable to Buyer, dated the Closing Date, substantially in the form of Exhibit E hereto;
(h) There shall not have occurred any Material Adverse Effect during the period commencing on the date hereof and ending at the Closing;
(i) Buyer shall be able to obtain at Closing an owner's policy or policies of title insurance issued on the existence form customarily used in Pennsylvania insuring title to the Real Property in an amount equal to the Purchase Price relating to such Real Property, or such lesser amount as Buyer elects, with exceptions only for Permitted Encumbrances, but without the so- called "standard" exceptions for (x) the rights of Seller parties in possession, (y) unfiled mechanics' and its Subsidiaries (including the Purchased Subsidiaries) materialmens' liens and (iiz) matters arising after the authority dates of Seller the Title Commitments and with the creditors' rights exclusion to coverage deleted, without Buyer being obligated to pay more than $50,000 in aggregate additional premium in order for this Agreement, all the issuer to delete or insure over title exceptions which are not Permitted Encumbrances. For purposes hereof "additional premium" means premium in form and substance reasonably satisfactory excess of the amount that the title insurer has otherwise agreed to Buyeraccept for issuing the policies of title insurance to Buyer in the requested amount; and
(ej) The proceeds Subject to the last sentence of Section 3.9, the Debt Financing Related Purchase Agreements shall be in full force and effect and the valid and binding obligation of each party thereto (other than Buyer); and all conditions to the obligations of all parties to the Related Purchase Agreements to consummate the transactions contemplated thereby shall have been received by Buyersatisfied or, 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 consummatedextent permitted by applicable Law, waived.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Atlantic City Electric Co), Purchase and Sale Agreement (Delmarva Power & Light Co /De/)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction (orsatisfaction, to the extent permitted by Applicable Law, or 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 and in any certificate or other writing delivered by Seller pursuant hereto (disregarding all any materiality and or Material Adverse Effect qualificationsor similar qualifications contained therein) shall be true when made and (prior to any amendment or supplements of the Seller Disclosure Schedule pursuant to Section 14.12) at and as of the Closing Date, as if made at and as of such date (except for representations and warranties that are made as of a specific date, which representations and warranties shall be true as of such specific date, disregarding, for purposes of this parenthetical, the reference to “as of the date hereof” in the lead in clause to Article 3), with only such exceptions as would not, individually or not in the aggregate, aggregate reasonably be expected to have a Material Adverse Effect Effect; and (iii) Buyer shall have received a certificate signed by an executive officer of Seller on behalf of Seller to the foregoing effect;.
(b) all Seller shall have delivered to Buyer a certificate, in accordance with Treasury Regulations section 1.1445-2(b), duly executed and acknowledged, certifying that Seller is not a foreign person and, thus, is exempt from withholding pursuant to the Foreign Investment in Real Property Tax Act.
(c) All consents of third parties required by the agreements listed and authorizations specified in Section 10.02(b11.02(c) of the Seller Disclosure Schedule required for the consummation of the transactions contemplated by this Agreement shall have been obtained and remain in effect.
(d) The agreements specified in Section 11.02(d) of the Seller Disclosure Schedule shall have been obtained;executed and delivered by the parties thereto (other than Seller or its Affiliates).
(ce) all governmental licensesFrom the date of this Agreement to the Closing, authorizations, permits, consents and approvals required to carry on the Business as now conducted there shall not have been transferred to any event, occurrence, development or otherwise obtained by Buyer on state of circumstances or before the Closing Date, with only such exceptions as facts that has had or would not reasonably be expected to have have, individually or in the aggregate, 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.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Calumet Specialty Products Partners, L.P.), Asset Purchase Agreement (Murphy Oil Corp /De)
Conditions to Obligation of Buyer. THERMASYS, MERGER SUB ONE, MERGER SUB TWO AND MERGER SUB THREE. The obligation of Buyer Buyer, ThermaSys, Merger Sub One, Merger Sub Two and Merger Sub Three to consummate the Closing Transactions is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Buyer) of the following further conditions:
(i) Seller Each of Seller, Insilco, Insilco Sub One, Insilco Sub Two and Insilco Sub Three 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) except to the extent expressly permitted under this Agreement, the representations and warranties of Seller contained in this Agreement and in any certificate or other writing delivered by Seller pursuant hereto (disregarding all x) that are qualified by materiality and or Material Adverse Effect qualifications) shall be true when at and as of the Closing Date as if made at and as of such date, and (y) that are not qualified by materiality or Material Adverse Effect, shall be true in all material respects 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 date and (iii) Buyer shall have received a certificate signed by an officer the President of Seller to the foregoing effect;.
(b) There shall not be threatened, instituted or pending any action or proceeding by any Person before any court or governmental authority or agency, domestic or foreign, (i) seeking to restrain, prohibit or otherwise interfere with the ownership or operation by Buyer or any of its Affiliates of all consents of third parties required by the agreements listed in Section 10.02(b) or any material portion of the Disclosure Schedule shall have been obtained;Purchased Assets or the business or assets of Buyer or to compel Buyer or any of its Affiliates to dispose of all or any material portion of the Purchased Assets or the business or assets of Buyer or (ii) seeking to require divestiture by Buyer or any of its Affiliates of all or any material portion of the Purchased Assets or the business or assets of Buyer.
(c) all There shall not be any action taken, statute, rule, regulation, injunction, order or decree proposed, enacted, enforced, promulgated, issued or deemed applicable to the purchase of the Purchased Assets by any court, government or governmental licensesauthority or agency, authorizationsdomestic or foreign, permitsother than the application of the waiting period provisions of the HSR Act to the purchase of the Purchased Assets, consents that, in the reasonable judgment of Buyer could, directly or indirectly, result in any of the consequences referred to in clauses 11.02(b)(i) 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;11.02(b)(ii) above.
(d) Buyer and Insilco shall have executed a Management Services Agreement in substantially the form attached as Exhibit D.
(e) Seller shall have received all documents it may reasonably request relating Required Consents and all consents, authorizations or approvals from the governmental agencies referred to (i) the existence of Seller and its Subsidiaries (including the Purchased Subsidiaries) and (ii) the authority of Seller for this Agreement, all in Section 5.03 in form and substance reasonably satisfactory to Buyer; and
(e) The proceeds of the Debt Financing , and no such consent, authorization or approval 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 revoked.
(including after giving effect to any changes pursuant to the “market flex” provisions thereof); provided that f) Buyer shall not have obtained funds (other than equity to be entitled provided by its stockholders) to assert the failure enable it to make payment of the condition set forth in this Section 10.02(e) if the failure of the Debt Financing Transaction Consideration and any other amounts to be consummated has resulted solely from the failure of the Equity Financing to be consummatedpaid by it hereunder.
Appears in 2 contracts
Samples: Transaction Agreement (Insilco Corp/De/), Transaction Agreement (Insilco Holding Co)
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:
(a) (i) Limited Brands and Seller shall have performed or complied in all material respects with all of its obligations hereunder the agreements and covenants required by the Transaction Documents to be performed or complied with by it on them at or prior to the Closing Date, (ii) the representations and warranties of Seller and Limited Brands contained in this Agreement (and in any certificate or other writing delivered by Seller or Limited Brands pursuant hereto, disregarding all any qualifications or exceptions contained in such representations or warranties relating to materiality and or Material Adverse Effect qualifications) Effect, shall be true when made and accurate at and as of the Closing Date, as if made at and as of such time (other than any representations and warranties that address matters as of a specific date, with only which shall be true and accurate as of such exceptions as would notdate), except for any inaccuracies which, individually or in the aggregate, reasonably be expected to have would not constitute a Material Adverse Effect and (iii) Buyer shall have received a certificate signed by an executive officer of Seller to the foregoing effect;.
(b) all consents Seller or Limited Brands shall have caused the following fully executed documents to be delivered to Buyer:
(i) letters of third parties required by resignation from the agreements listed in Section 10.02(b) officers and directors of the Disclosure Schedule shall have been obtainedCompany and each Subsidiary, to the extent any such officer or director will remain an employee of Seller or any of its Affiliates after the Closing;
(cii) all governmental licensessuch documents regarding the corporate organization, authorizationsexistence, permitsauthorization and similar matters relating to Limited Brands, consents and approvals required to carry on Seller, the Business Company or any Subsidiary 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 may reasonably be expected to have a Material Adverse Effectrequest;
(d) Buyer shall have received all documents it may reasonably request relating to (iiii) the existence of Seller and its Subsidiaries Services Agreement;
(including the Purchased Subsidiaries) and (iiiv) the authority of Seller for this LLC Agreement, all in form ;
(v) the DC Lease;
(vi) the Covenant Agreement;
(vii) the Master Assignment and substance reasonably satisfactory to BuyerAssumption Agreement;
(viii) the Master Sublease;
(ix) the Store Leases Agreement;
(x) the Retained Leases Assignment and Assumption Agreement;
(xi) the Non-LBOS Quitclaim License Agreement;
(xii) the LBOS License Agreement; and
(exiii) 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 consummatedUnconditional Guaranty.
Appears in 2 contracts
Samples: Unit Purchase Agreement (Express Parent LLC), Unit Purchase Agreement (Express Parent LLC)
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 transactions to be performed by it on or prior to in connection with the Closing Date, is subject to satisfaction of the following conditions:
(iia) (i) the representations and warranties of Seller set forth in Article 3 above, shall be true and correct in all material respects, and (ii) all agreements and covenants contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall be true when made and have been performed or complied with by Seller, in each case, at and as of the Closing Date;
(b) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 7.01(a) is satisfied in all respects;
(c) Seller shall have delivered to Buyer the bxxx of sale required under Section 2.07, as if made at together with any other instrument of transfer necessary to convey to Buyer all of the Acquired Assets, which instruments shall be reasonably satisfactory in form and as substance to Buyer;
(d) there shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of such date, with only such exceptions as would not, individually or in any of the aggregate, reasonably be expected to have a Material Adverse Effect and transactions contemplated by this Agreement;
(iiie) Buyer shall have received a certificate signed copies of the resolutions of Seller’s board of directors and the Shareholder, certified by an officer the Secretary or Assistant Secretary of Seller to the foregoing effect;
(b) all consents as 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 Effectauthorizing (i) the consummation of the transactions contemplated by this Agreement, and (ii) the execution and delivery of this Agreement and all other documents contemplated or required hereunder and thereunder;
(df) Buyer shall have received all documents it may reasonably request relating to (i) the existence good standing certificates of Seller from the Secretary of State of the State of its jurisdiction of organization and its Subsidiaries any other jurisdiction in which Seller does business or is authorized to do business.
(including g) Seller shall have received all Required Consents set forth in Section 7.01 of the Purchased SubsidiariesDisclosure Schedule;
(h) Buyer shall have received an executed employment contract or offer letter from the Shareholder, which contract and (ii) the authority of Seller for this Agreement, all offer letter shall be reasonably satisfactory in form and substance reasonably to Buyer;
(i) Buyer shall have received evidence that all franchise and other taxes and fees have been paid in full to the State of California and any other jurisdiction in which the Seller does business or is authorized to do business, all on terms satisfactory to Buyer;
(j) Buyer shall have received duly executed UCC-3 termination statements and such other release and termination instruments (or copies thereof) as the Buyer shall reasonably request in order to vest all right, title and interest in and to the Acquired Assets free and clear of all Security Interests;
(k) There shall have been no Material Adverse Effect on Seller, the Business or the Acquired Assets;
(l) The Seller shall have timely filed any and all required Tax Returns and other documents necessary to comply with all bulk sales laws which may be applicable to the transactions contemplated herein; and
(em) 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 Buyer may waive 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 specified in this Section 10.02(e) 7.01 if it executes a writing so stating at or prior to the failure of the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummatedClosing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Solar Integrated Roofing Corp.), Asset Purchase Agreement (Solar Integrated Roofing Corp.)
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 transactions to be performed by it on or prior to in connection with the Closing Date, is subject to satisfaction of the following conditions:
(iia) (i) the representations and warranties of Seller set forth in Article 3 above, shall be true and correct in all material respects, and (ii) all agreements and covenants contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall be true when made and have been performed or complied with by Seller, in each case, at and as of the Closing Date;
(b) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 7.01(a) is satisfied in all respects;
(c) Seller shall have delivered to Buyer the bxxx of sale required under Section 2.07, as if made at together with any other instrument of transfer necessary to convey to Buyer all of the Acquired Assets, which instruments shall be reasonably satisfactory in form and as substance to Buyer;
(d) there shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of such date, with only such exceptions as would not, individually or in any of the aggregate, reasonably be expected to have a Material Adverse Effect and transactions contemplated by this Agreement;
(iiie) Buyer shall have received a certificate signed copies of the resolutions of Seller’s board of directors, certified by an officer the Secretary or Assistant Secretary of Seller to the foregoing effect;
(b) all consents as 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 Effectauthorizing (i) the consummation of the transactions contemplated by this Agreement, and (ii) the execution and delivery of this Agreement and all other documents contemplated or required hereunder and thereunder;
(df) Buyer shall have received good standing certificates of Seller from the Secretary of State of the State of its jurisdiction of organization and any other jurisdiction in which Seller does business or is authorized to do business.
(g) Seller shall have received all documents it may reasonably request relating Required Consents set forth in Section 7.01 of the Disclosure Schedule;
(h) Buyer shall have received evidence that all franchise and other taxes and fees have been paid in full to the State of California and any other jurisdiction in which the Seller does business or is authorized to do business, all on terms satisfactory to Buyer;
(i) Buyer shall have received duly executed UCC-3 termination statements and such other release and termination instruments (or copies thereof) as the existence Buyer shall reasonably request in order to vest all right, title and interest in and to the Acquired Assets free and clear of all Security Interests;
(j) There shall have been no Material Adverse Effect on Seller, the Business or the Acquired Assets;
(k) The Seller shall have timely filed any and its Subsidiaries (including all required Tax Returns and other documents necessary to comply with all bulk sales laws which may be applicable to the Purchased Subsidiaries) and (ii) the authority of Seller for this Agreement, all in form and substance reasonably satisfactory to Buyertransactions contemplated herein; and
(el) 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 Buyer may waive 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 specified in this Section 10.02(e) 7.01 if it executes a writing so stating at or prior to the failure of the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummatedClosing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Solar Integrated Roofing Corp.), Asset Purchase Agreement (Solar Integrated Roofing Corp.)
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:
(a) (i) the Company and each Seller shall have performed in all material respects all of his or its obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of the Company and each Seller contained in this Agreement (disregarding all materiality at the time of its execution and Material Adverse Effect qualifications) delivery and in any certificate or other writing delivered by the Company or a Seller pursuant hereto, shall be true when made and at and as of the Closing Date, as if made at and as of such date, date with only such additional exceptions as would not, individually or not in the aggregate, aggregate reasonably be expected to have a Material Adverse Effect and (iii) Buyer shall have received a certificate signed by an officer the President of the Company and by each Seller to the foregoing effect;.
(b) all consents of third parties required No court, arbitrator or governmental body, agency or official shall have issued any order, and there shall not be any statute, rule or regulation, restraining the effective operation by the agreements listed in Section 10.02(b) Buyer of the Disclosure Schedule business of the Company after the Closing Date, and no proceeding challenging this Agreement or the transactions contemplated hereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been obtained;instituted by any Person before any court, arbitrator or governmental body, agency or official and be pending.
(c) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business as now conducted Buyer shall have been transferred to or otherwise obtained by Buyer on or before received an opinion of Sellers' Counsel, dated the Closing Date, with only reasonably satisfactory to the Buyer in form and substance and including representations as set forth on EXHIBIT 10.02(c). In rendering such exceptions opinion, such counsel may rely upon certificates of public officers, as would not to matters governed by the laws of jurisdictions other than California or the federal laws of the United States of America, upon opinions of counsel reasonably satisfactory to Buyer, copies of which shall be expected contemporaneously delivered to have a Material Adverse Effect;Buyer, and as to matters of fact, upon certificates of officers of Seller, the Company and the Subsidiaries.
(d) The Company shall have received all consents, authorizations or approvals from the governmental agencies referred to in Section 3.03(a), in each case in form and substance reasonably satisfactory to Buyer, and no such consent, authorization or approval shall have been revoked.
(e) Sellers shall have entered into a Subordination and Intercreditor Agreement with Silicon Valley Bank and Buyer, and Silicon Valley Bank shall have consented to the acquisition of the Shares by Buyer.
(f) Buyer shall have received all other closing documents specified in Section 2.02 of this Agreement and all other closing documents that 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 Agreementrequest, 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.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Lionbridge Technologies Inc /De/), Stock Purchase Agreement (Lionbridge Technologies Inc /De/)
Conditions to Obligation of Buyer. The obligation obligations of Buyer to consummate the Closing is Contemplated Transaction are 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 at or prior to the Closing Date, Date of the following conditions:
(iia) the representations and warranties of the Company and Seller contained in this Agreement must have been true and correct in all respects on and as of the Closing Date (disregarding all materiality including those representations and Material Adverse Effect qualificationswarranties which specifically speak as of the date hereof and except for those representations and warranties that address matters only as of a particular date, which shall have been true as of such date) shall be true when with the same effect as though such representations and warranties had been made and at this Agreement had been delivered on and as of the Closing Date, as if made ;
(b) all of the covenants and agreements of the Company and Seller to be performed or complied with at or prior to the Closing pursuant to the terms of this Agreement must have been duly performed and as of such date, complied with only such exceptions as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and all respects.
(iiic) Buyer there shall have received been delivered to Buyer a certificate signed by an officer of the Company and by Seller to the foregoing effect;
effect that each of the conditions set forth in Sections 8.1(a) and (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) satisfied in 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 Effectrespects;
(d) there shall not have been, since the date of the Interim Balance Sheet, any fact or event which is or may reasonably be expected to result, in a Material Adverse Effect with respect to the Company taken as a whole;
(e) each of the deliveries contemplated by Section 4.2(a) shall have been made;
(f) the Company shall have received and delivered to Buyer the third-party consents listed in Schedule 8.1(f) (the "Material Consents");
(g) The Company shall have caused all of its officers and directors to have repaid in full all debts and other obligations, if any, owed to the Company;
(h) Buyer shall be satisfied, in its sole discretion, with the results of its due diligence review and investigation of the Company and the Business;
(i) Buyer shall have received all documents it may reasonably request relating to (i) the existence of Seller obtained, on terms and its Subsidiaries (including the Purchased Subsidiaries) and (ii) the authority of Seller for this Agreement, all in form and substance reasonably conditions satisfactory to Buyerit, the financing it deems necessary in order to close the Contemplated Transaction, and to fund the working capital requirements of the Company;
(j) No Proceeding shall be pending or Threatened before any Governmental Body which would prevent or inhibit the consummation of the Contemplated Transaction or seek to impose any Liability on any party as a result of the consummation of the Contemplated Transaction, and all necessary regulatory approvals shall have been obtained; and
(ek) The proceeds of the Debt Financing No Proceeding shall have been received pending or Threatened by Buyerany Person asserting that such Person (i) is the holder or the beneficial owner of, or shall be fully available has the right to Buyeracquire or to obtain beneficial ownership of, on substantially any capital stock of the terms and conditions set forth in the Debt Commitment Letter Company, or (including after giving effect to any changes pursuant to the “market flex” provisions thereof); provided that Buyer shall not be ii) is entitled to assert the failure all or any portion 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 consummatedPurchase Price payable for such capital stock.
Appears in 1 contract
Samples: Stock Purchase Agreement (Timberline Resources Corp)
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 transactions to be performed by it on or prior to in connection with the Closing Date, is subject to satisfaction of the following conditions:
(iia) the representations and warranties of Seller contained Sellers set forth in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) Section 2 above shall be true when made and correct in all material respects at and as of the Closing Date, as if made at Date and as of such date, with only such exceptions as would not, individually or in the aggregate, reasonably be expected Buyer has reviewed and consented to have a Material Adverse Effect and (iii) Buyer shall have received a certificate signed by an officer of Seller any updates to the foregoing effectdisclosure Schedules made by Sellers pursuant to Section 4.6;
(b) all consents of third parties required by the agreements listed in Section 10.02(b) of the Disclosure Schedule Sellers shall have been obtainedperformed and complied with all of their covenants hereunder in all material respects through the Closing;
(c) all governmental licensesno action, authorizationssuit, permitsor proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, consents and approvals required to carry on the Business as now conducted shall have been transferred to state, local, or otherwise obtained by Buyer on foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the Closing Datetransactions contemplated by this Agreement, with only (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (iii) affect adversely the right of Buyer to own the Membership Interests, or (iv) affect adversely the right of the Company to own its assets and to operate its businesses (and no such exceptions as would not reasonably injunction, judgment, order, decree, ruling, or charge shall be expected to have a Material Adverse Effect;in effect); and
(d) Sellers and the NPS Entities shall have completed all Closing Actions and Deliveries to be completed by them in connection with consummation of the transactions contemplated hereby and Buyer shall have received all Transaction Documents and certificates, opinions, instruments, and other documents it may reasonably request relating required to (i) effect the existence of Seller transactions contemplated hereby, duly executed by the appropriate parties thereto and its Subsidiaries (including the Purchased Subsidiaries) and (ii) the authority of Seller for this Agreement, all in form and substance reasonably satisfactory to the 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 . Buyer may waive 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 specified in this Section 10.02(e) 6.1 if it executes a writing so stating at or prior to the failure of the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummatedClosing.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate effect the Closing is transactions contemplated by this Agreement shall be subject to the satisfaction (oror the waiver, to the extent permitted by Applicable applicable Law, waiver by Buyer) at or prior to the Closing of the following further conditions:
(a) The waiting period under the HSR Act applicable to the consummation of the transactions contemplated hereby shall have expired or been terminated;
(b) No preliminary or permanent injunction or other Order by any Governmental Authority which prevents the consummation of the transactions contemplated hereby or by the Additional Agreements shall have been issued and remain in effect (Buyer agreeing to use commercially reasonable efforts to have any such injunction or Order lifted), and no applicable Law shall be in effect which prohibits the consummation of the transactions contemplated hereby;
(c) The Consents set forth (i) in the case of the Buyer’s Required Regulatory Approvals on Schedule 7.1(c)(i) and (ii) in the case of Seller’s Required Regulatory Approvals on Schedule 7.1(c)(ii), shall have been duly obtained by Final Order, all terminations or expirations of applicable waiting periods imposed by any Governmental Authority with respect to the transactions contemplated hereby (including under the HSR Act) shall have occurred, and none of such Consents shall impose additional terms or conditions that would reasonably be expected to result in any material and adverse impact on Buyer, its Affiliates or the Business, or would impose any material change or modification to this Agreement;
(d) Seller shall have performed and complied in all material respects all of its obligations hereunder with the covenants and agreements contained in this Agreement which are required to be performed and complied with by it on Seller at or prior to the Closing Date, Closing;
(iie) the The representations and warranties of Seller contained set forth in this Agreement (disregarding all materiality Article III and Material Adverse Effect qualifications) Article IV hereof shall be true when and correct in all material respects as though made and at and as of the Closing DateDate (other than such (i) representations and warranties that are made as of a specific date, as if made at which shall have been true and correct as of such date, with only such exceptions as would notand (ii) representations and warranties that are qualified by reference to materiality or Material Adverse Effect, individually or which shall be true and correct in all respects);
(f) Between the aggregatedate hereof and the Closing Date, reasonably be expected to have a no Material Adverse Effect shall have occurred and be continuing;
(iiig) Seller shall have delivered or shall stand ready to deliver all of the items required to be delivered by Seller hereunder, including pursuant to Section 2.4;
(h) Each of the Assigned Agreements shall have been assigned to Buyer or its designee in accordance with the terms and conditions of Section 6.6(a) and the Assignment and Assumption Agreements;
(i) Buyer shall have received all third party consents, waivers or approvals with respect to the sale of the Seller’s Interests, assignment of the Assigned Agreements or the consummation of the transactions contemplated by this Agreement as set forth on Schedule 7.1((i));
(j) Buyer shall have received a certificate signed by from an authorized 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 licensesSeller, 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 dated the Closing Date, with only such exceptions as would not reasonably be expected to the effect that, to Seller’s Knowledge, the conditions set forth in Sections 7.1(d), (e) and (f) have a Material Adverse Effectbeen satisfied;
(dk) Buyer The Affiliate PSA Closing shall have received all documents it may reasonably request relating to (i) occur simultaneously with the existence of Seller and its Subsidiaries (including Closing on the Purchased Subsidiaries) and (ii) the authority of Seller for this Agreement, all in form and substance reasonably satisfactory to BuyerClosing Date; and
(el) The proceeds of the Debt Financing Restructuring 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.
Appears in 1 contract
Samples: Purchase and Sale Agreement (PPL Energy Supply LLC)
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 (or, to the extent permitted by Applicable Law, waiver by Buyer) of the following further conditions:
(i) Seller the representations and warranties set forth in Section 3 above shall have performed be true and correct 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;
(ii) each Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(iii) each Seller shall have procured all of the third party consents specified in Section 5(b) above except if not material to the operations of the Business;
(iv) Seller shall have entered into a trust agreement regarding medical, dental and general liability insurance in an aggregate amount of not less than one hundred and seventy-five thousand dollars ($175,000.00) for the purpose of satisfying any obligation arising as if made at and as a result of such datemedical, dental and general liability insurance.
(v) the Real Property Leases shall be in form and substance satisfactory to Buyer and any amendments required by Buyer in respect of any of the Real Property Leases shall have been agreed to in writing by the lessor in respect thereof;
(vi) Each of McBiz LP and MRV/SGS Joint Venture shall have entered into the Option Agreements with Buyer (or its designee) in respect of the Optioned Property and a memorandum, in the form attached to the Option Agreements, shall have been filed in the real estate records in each county in which an Optioned Property is located.
(vii) each Seller shall have procured the consent of the lessors under the Real Property Leases to which it is a party to the assignment of such leases thereunder to Buyer with such assignment to be on terms and in the form of Exhibit J attached hereto;
(viii) McBiz LP shall have delivered to Buyer a Special Warranty Deed duly executed by McBiz LP in the form attached hereto as Exhibit Q in respect of the Boise Property, conveying the Boise Property to Buyer, subject to no exceptions other than Permitted Exceptions;
(ix) McBiz LP shall have delivered an ALTA Form B-1970 Owner's Policy of Title Insurance (the "Title Policy") to Buyer, naming Buyer as insured, containing expanded coverage and such endorsements as Buyer may (in Buyer's reasonable discretion) request, in the amount of $950,000, insuring that Buyer owns good and marketable fee simple title to the Boise Property subject only to such exceptions as Buyer may approve, and, with regard to the standard printed exceptions and other exceptions commonly included in such title policies issued in the State of Idaho, conforming to the requirements of Section 5
(i) herein regarding the Title Commitment;
(x) McBiz LP shall have delivered to Buyer an affidavit duly executed on behalf of McBiz LP certifying that McBiz LP is not a "foreign person," as defined in the federal Foreign Investment in Real Property Tax Act of 1980, and the 1984 Tax Reform Act, as amended, in the form and content of the sample of such instrument attached hereto as Exhibit R to this Agreement;
(xi) no action, suit or proceeding shall be pending or threatened before any court or quasi judicial or administrative agency of any federal, state or local jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would not(A) prevent consummation of any of the transactions contemplated by this Agreement, individually (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (C) affect adversely the right of Buyer to own any of the Acquired Assets and to operate the Business;
(xii) from and after July 28, 1996, until the Closing Date, there shall have been no change in the business, prospects or properties of any Seller or in the aggregatefinancial condition of its business or property, reasonably be expected to other than changes occurring in the Ordinary Course of Business or as otherwise disclosed herein or in any Schedule attached hereto, which in the aggregate shall not have resulted in a Material Adverse Effect Change; no material license or permit held by any Seller and (iii) Buyer necessary for the conclusion of the transactions contemplated by this Agreement shall have received been revoked, terminated, or otherwise materially and adversely affected; no action or proceeding shall be pending or threatened by any person, which challenges the right of any Seller to own the Acquired Assets or to conduct its business in the normal course, as its business has been carried on in the past; no legislation shall have been enacted or introduced which adversely affects its business; and the property, business or operations of its business (considered collectively) shall not have been adversely affected in any material way by fire, accident or other casualty (whether or not covered by insurance);
(xiii) each Seller shall have delivered to Buyer a certificate signed executed by an officer of such Seller to the foregoing effect;
(b) all consents effect that each of third parties required by the agreements listed conditions specified in Section 10.02(b) of the Disclosure Schedule shall have been obtained;
6(a)(i-iv), (c) all governmental licensesvii), 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 (iixii) the authority of Seller for this Agreement, is satisfied in 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.respects;
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation obligations of Buyer to consummate the purchase of the Transferred Assets and the assumption of the Assumed Liabilities on the Closing is Date are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Buyeror waiver) of the following further conditions:
(ia) Seller shall have performed in all material respects all of its obligations hereunder under the Transaction Documents required to be performed by it on or prior to the Closing Date, .
(iib) the The representations and warranties of Seller contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) the Transaction Documents shall be true when made and correct at and as of the date of this Agreement and as of the Closing Date, as if made at and as of each such date, with except that those representations and warranties which are by their express terms made as of a specific date shall be true and correct only as of such exceptions as would notdate, 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 executive 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 On the Closing Date, no proceeding shall be pending or threatened before any court or governmental licensesagency which seeks to restrain or prohibit or to obtain damages or other relief in connection with the conduct of the Health Plan Business, authorizationsand no investigation that might eventually result in any such suit, permitsaction or proceeding shall be pending or threatened.
(d) On the Closing Date, consents and approvals required to carry on the Business as now conducted Seller shall have delivered to Buyer written evidence reasonably satisfactory to Buyer that the Consents have been transferred obtained or will be obtained.
(e) On the Closing Date, Seller shall have delivered to or otherwise obtained Buyer all of the Transferred Assets, in accordance with this Agreement, the Transferred Assets shall be usable for the purposes for which they have been historically used in the conduct of the Health Plan Business and shall be in substantially the same condition as at the date of this Agreement.
(f) All corporate and other proceedings of the Seller in connection with the execution, delivery and performance of the Transaction Documents, the consummation of the Transaction hereby, and all documents and records incident thereto, including, without limitation, the approval of this Agreement and the Transaction by the Board of Trustees, shall be certified to Buyer in form and content satisfactory to Buyer, and Buyer shall have received true and complete copies of all such documents and records including, without limitation, a good standing certificate of Seller and authorizing resolutions of the Board of Trustees of Seller (certified by the corporate secretary of Seller) as Buyer may request.
(g) Seller shall have executed and delivered, on or before the Closing Date, with only such exceptions as would not reasonably the Transaction Documents that are required to be expected to have a Material Adverse Effect;signed by Seller.
(dh) The Buyer shall have received all documents it may reasonably request relating to (i) the existence of receive from Seller and its Subsidiaries (including the Purchased Subsidiaries) and (ii) the authority of Seller for this Agreement, all documentation in recordable form and substance reasonably satisfactory to Buyer; and
(e) The proceeds of Buyer releasing and terminating any Liens encumbering 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 consummatedTransferred Assets.
Appears in 1 contract
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 (or, to the extent permitted by Applicable Law, waiver by Buyer) of the following further conditions:
(i) Seller the representations and warranties set forth in ss.3(a) and ss.4 above shall have performed be true and correct as of the date of this Agreement and as of the Closing Date with the same effect as though such representations and warranties had been made as of the Closing Date (or such earlier date as specified in all material respects all of its obligations hereunder required the representations or warranties), except for such failures to be performed by it true and correct as have not had, and would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect on or prior the SPPI Business taken as a whole;
(ii) from the date of this Agreement to the Closing Date, (ii) no material adverse change in the representations financial condition or business of the SPPI Business taken as a whole shall have occurred and warranties of Seller contained in this Agreement (disregarding all materiality and no event or development shall have occurred that is reasonably likely to have a Material Adverse Effect qualificationson the SPPI Business taken as a whole;
(iii) Seller shall have performed and complied with all of its covenants, agreements, undertakings and obligations hereunder in all material respects through the Closing;
(iv) there shall not be true when made any injunction, judgment, order, decree, ruling, action or suit in effect, pending or threatened in writing, of or by any Government Entity that (A) seeks to prevent or prevents consummation of, or modifies or seeks to modify in any material respect the carrying out of, any of the transactions contemplated by the Transaction Documents, (B) seeks or imposes material damages in connection with any of the transactions contemplated by the Transaction Documents, (C) questions the validity or legality of any of the transactions contemplated by the Transaction Documents or (D) seeks to impose material conditions upon the ownership or operation of any of the Economy Companies or the conduct of the SPPI Business by Buyer or the operation of Buyer or any Affiliate of Buyer in connection with the transactions contemplated by this Agreement or the other Transaction Documents, and at neither Party shall have received any written request for postponement of the Closing from any Government Entity;
(v) all applicable waiting periods (and any extensions thereof) under the Hart-Scott-Rodino Act shall have expired or otherwise been texxxxxxxx xxx the Parties shall have received all required consents and approvals from the insurance departments of the states having jurisdiction, including but not limited to the States of Illinois, Minnesota, Rhode Island and New York;
(vi) Seller shall have (A) executed and delivered, or caused its Affiliates to execute and deliver, to Buyer each of the Transaction Documents to which Seller or such Affiliates are a party and (B) delivered to Buyer (x) a list of the SPPI Policies, on a computer disk or other electronic form reasonably acceptable to Buyer, containing the same and (y) a list of all presently licensed agents of Seller and its Affiliates who, as of the Closing Date, sold the SPPI Policies;
(vii) the closing under the Commutation Agreement with Economy shall have occurred and Seller shall have transferred to Economy consideration as set forth in the Commutation Agreement;
(viii) Seller shall have delivered to Buyer a certificate signed by a senior executive officer of Seller to the effect that each of the conditions specified above in ss.ss.7(a)(i), (ii), (iii), (iv), (v), (vi) and (vii) is satisfied in all respects;
(ix) Seller shall have delivered to Buyer a certificate of the secretary or assistant secretary of Seller and the other SPPI Affiliates, dated as of the Closing Date, as if made at to the resolutions of the Board of Directors (or other similar governing body) of Seller or an SPPI Affiliate, as the case may be, authorizing the execution, delivery and performance of the Transaction Documents to which they are a party, as to the status and signature of each of their officers who executed and delivered the Transaction Documents to which they are a party and any other document delivered by them in connection with the consummation of the transactions contemplated by the Transaction Documents, and as of such dateto the Economy Companies, 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 the secretary or assistant secretary of the Economy Companies as to the foregoing effectEconomy Companies' charters and by-laws (or equivalent documents) (certified by the applicable Government Entity), and as to their due organization, existence and good standing;
(bx) all material consents of third parties required (other than consents of Government Entities) to the transactions contemplated by this Agreement and the agreements listed in Section 10.02(b) of the Disclosure Schedule other Transaction Documents shall have been obtained;
(cxi) Seller shall have transferred to Buyer all governmental licenses, authorizations, permits, consents permits and approvals licenses required to carry on the Business as now conducted shall have been be transferred prior 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;by any Environmental Law; and
(dxii) Buyer shall have received all documents it may reasonably request relating to (i) the existence written resignations 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 each of the Debt Financing shall have been received by Buyer, directors and officers of the Economy Companies in accordance with ss.2(c) hereof. Buyer may waive any condition specified in this ss.7(a) if it executes a writing so stating at 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 prior 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 consummatedClosing.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (St Paul Companies Inc /Mn/)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated by this Agreement is subject to satisfaction of the satisfaction following conditions:
(ora) Seller's representations and warranties (other than the representations and warranties set forth in Section 3.20), to the extent permitted qualified by Applicable Lawa reference to materiality, waiver by Buyer) of shall be correct and complete, and to the following further conditions:
(i) Seller extent not so qualified, shall have performed be correct and complete 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 DateDate and the Closing, as if made at and as there shall have occurred no uncured breach of such date, with only such exceptions as would notSeller's representations and warranties which, individually or in the aggregate, taking into account all such breaches, has resulted in any or may 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 result 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 any Material Adverse Effect;
(db) Buyer Seller shall have received performed and complied in all documents it may reasonably request relating material respects with all of its covenants hereunder required to be performed or complied with through the Closing;
(ic) Seller shall have given all notices and procured all of the existence of Seller material third-party consents, authorizations and its Subsidiaries approvals (including all consents, authorizations and approvals by Governmental Authorities and the Purchased Subsidiariesexpiration of the Hart-Xxxxx-Xxxxxx xxxting period) and (ii) required to consummate the authority of Seller for transactions contemplated by this Agreement, all in form and substance reasonably satisfactory to Buyer;
(d) no action, suit or proceeding shall be pending or threatened, other than an action, suit or proceeding instituted by the Buyer, that involves any Governmental Authority as a party and wherein an unfavorable Order would, and no injunction shall be in effect that 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) materially affect adversely the right of Buyer to use or operate the Assets in connection with the Business, and no such Order shall be in effect;
(e) there shall have occurred no event, fact or circumstance, including any failure of Buyer to obtain any required consent with respect to the transfer of any Asset to Seller under this Agreement, that has had or could reasonably be expected to have a material adverse effect on Buyer's right to conduct the Business substantially as such Business was being conducted on September 30, 1998;
(f) there shall have occurred after September 30, 1998, no Material Adverse Effect; provided that if the number of Subscribers as of the Closing is less than that set forth in SCHEDULE 3.20, that difference in the number of Subscribers will not be considered to be a Material Adverse Effect;
(g) Seller shall have delivered to Buyer (i) a certificate to the effect that each of the conditions specified above in Sections 7.1(a) through (f) is satisfied in all respects and (ii) good standing certificates for Seller and ICG, dated within ten days of the Closing, from the Secretary of State of Seller's and ICG's jurisdiction of incorporation and each other jurisdiction in which Seller is qualified or authorized to do business as a foreign corporation;
(h) Seller shall have made the certification set forth in the last sentence of Section 3.20; and
(ei) The proceeds of the Debt Financing Seller shall have been received delivered to Buyer the Seller Documents and such other instruments, certificates and documents as are reasonably requested by BuyerBuyer in order to consummate the transactions contemplated by this Agreement, or shall be fully available all in form and substance reasonably satisfactory to Buyer, on substantially the terms and conditions set forth . Buyer in the Debt Commitment Letter (including after giving effect to its sole discretion may waive 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 specified in this Section 10.02(e) if 7.1 at or prior to the failure of the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummatedClosing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Mindspring Enterprises Inc)
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) Each 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 ACI contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) or in any certificate or other writing delivered by ACI pursuant hereto shall be true when made and at and as of the Closing DateDate (disregarding all qualifications as to materiality contained therein), as if made at and as of such date, with only such exceptions as would not, individually or not in the aggregate, reasonably be expected to aggregate have a Material Adverse Effect and (iii) Buyer shall have received a certificate signed by an officer the Chief Executive Officer, Executive Vice President-Corporate Development or Vice President & General Counsel of Seller ACI to the foregoing effect;.
(b) all consents of third parties required by the agreements listed in Section 10.02(b) All of the Disclosure Schedule conditions to consummation of the debt financing set forth in the Debt Commitment Letter shall have been obtained;
(c) all governmental licenses, authorizations, permits, consents satisfied or waived 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 funds under the Debt Financing Commitment Letter shall have been received by Buyer, or shall be fully available to BuyerBuyer to the extent contemplated by the Debt Commitment Letter, on substantially the terms and conditions set forth in the Debt Commitment Letter (including after giving effect to any changes made or requested pursuant to the “market flex” provisions thereofterms contained in the Fee Letter); provided that Buyer shall not be entitled to assert the failure of the condition set forth in this Section 10.02(e10.02(b) as a basis for not consummating the transactions contemplated hereby if the failure of the Debt Financing such condition to be consummated satisfied has resulted solely from any failure by Buyer to comply, or any failure by Audax Management Company, LLC or Audax to cause Buyer to comply, with Section 6.04 or the failure by Audax to provide the Equity Investment pursuant to the terms of the Equity Financing Commitment Letter.
(c) Each Seller shall have executed and delivered to Buyer each Transaction Document to which it is a party.
(d) The excess of the revenues over direct operating expenses (excluding allocated expenses) of the Business for the year ended December 31, 2004, as reflected on the final audited Statement of Revenue and Direct Operating Expenses of the Business for such year, delivered to Buyer pursuant to Section 5.10, calculated in accordance with the draft audited Statement of Revenue and Direct Operating Expenses set forth on Schedule 3.08(a), shall not be consummatedmaterially less than the excess of the revenues over direct operating expenses (excluding allocated expenses) of the Business reflected on the draft audited Statement of Revenue and Direct Operating Expenses set forth on Schedule 3.08(a).
(e) Buyer shall have received all documents it may reasonably request relating to the existence of each Seller and the authority of each Seller for this Agreement, all in form and substance reasonably satisfactory to Buyer.
(f) Sellers shall have delivered to Buyer any necessary Tax clearance or other certificates required by law or necessary to avoid withholding amounts from the Purchase Price.
(g) Sellers shall have delivered to Buyer the resignation of each of the directors and officers of Advanstar Asia and Advanstar Brazil, other than the individuals who are Transferred Employees.
(h) Buyer shall have received the Amendment to the Articles of Association of Advanstar Brazil for the assignment and transfer of quotas from ACI and AI to Buyer and Buyer’s Subsidiary.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation In addition to the conditions set forth in Section 8.1 above, the obligations of Buyer to consummate the Closing is shall be subject to the satisfaction satisfaction, or (or, to the extent permitted by Applicable applicable Law, ) waiver by Buyer) Buyer on or prior to the Closing Date, of each of the following further conditions:
(ia) Seller shall have performed in all material respects all Each 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 Sellers set forth in Article III of this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall be true and correct in all respects when made and at on and as of the Closing Date, Date as if made at on such date, except to the extent such representations and warranties relate to an earlier date (in which case such representations and warranties shall be true and correct on and as of such earlier date); provided, with only such exceptions as would nothowever, individually or that in the aggregateevent of a breach of a representation or warranty, the condition set forth in this Section 8.2 shall be deemed satisfied unless the effect of all such breaches of representations and warranties, taken together as a whole, would reasonably be expected to have a Material Adverse Effect and (iii) Buyer shall have received a certificate signed by an officer of Seller to on the foregoing effectAcquired Companies;
(b) Sellers shall have performed and complied in all respects with all covenants and obligations under Sections 2.5 and 5.5 of this Agreement required to be performed and complied with by them as of the Closing Date, including the satisfaction of the delivery requirements set forth in Section 2.5, and Sellers shall have performed and complied in all material respects with all of their other covenants and obligations under this Agreement required to be performed and complied with by them as of the Closing Date;
(c) All consents of third parties required by the agreements listed in Section 10.02(bSchedule 8.2(c) 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;; and
(d) Buyer Written evidence (which 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 be reasonably satisfactory to Buyer) that Sellers’ brokers, lawyers and advisors have been paid for their services in connection with the transactions contemplated hereby (or that provision for payment by Sellers has been made, including, without limitation, by written direction by Sellers that a specified portion of the Directed Closing Purchase Price be applied to payment for services), to the extent the Acquired Companies would have liability for payment for such services; and
(e) The proceeds No Governmental Authority shall have issued any Order (and no Proceeding (other than any Proceeding brought or threatened by Parent, Buyer or any Affiliate thereof) seeking any of the Debt Financing shall have been received by Buyer, or foregoing shall be fully available to Buyerpending), on substantially which restrains, enjoins or prohibits 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 consummation 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 consummatedContemplated Transactions.
Appears in 1 contract
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 (or, to the extent permitted by Applicable Law, or waiver by BuyerBuyer as of the Closing) of the following further conditions:
(ia) Seller no Material Adverse Effect shall have performed occurred and be continuing;
(b) there shall not be any injunction, judgment, order, decree, ruling, or charge in all material respects all effect preventing consummation of its obligations hereunder required to be performed any of the transactions contemplated by it on this Agreement or prior to the Closing Date, any Ancillary Agreements;
(iic) (i) the representations and warranties of Seller contained set forth in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) Article IV above shall be true when made and correct in all material respects at and as of the Closing Date, as if made at (ii) Sellers and as the Seller Subsidiaries shall have performed and complied with all of such datetheir covenants hereunder in all material respects through the Closing, with only such exceptions as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (iii) Buyer Sellers and the Seller Subsidiaries shall have received delivered to Buyer a certificate dated the Closing Date and signed by an officer of Seller to Sellers confirming 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 Effectforegoing;
(d) Buyer Sellers and the Seller Subsidiaries, as applicable, shall have received executed and delivered to Buyer the agreements, instruments and certificates provided for in Section 3.2;
(e) all documents it may reasonably request relating of the Required Consents shall have been obtained without any amendments to any of the License Agreements, other than any amendments consented to by Buyer;
(if) the existence of Seller and its Subsidiaries waiting period under the HSR Act shall have expired or been terminated;
(including the Purchased Subsidiaries) and (iig) the authority Liens under the Loan Documents and the Note Documents shall have been released contemporaneously with the Closing;
(h) any mechanics’, carriers’, workmen’s, repairmen’s or other like Liens on the Business Property shall have been satisfied or Seller shall have provided an indemnity or bond in a dollar amount sufficient to cover the face amount of Seller for this Agreement, all in form and substance reasonably satisfactory to Buyersuch Liens; and
(ei) The proceeds all actions to be taken by Sellers and the Seller Subsidiaries in connection with consummation of the Debt Financing shall transactions as specified by this Agreement and the Ancillary Agreements and all certificates, opinions, instruments, and other documents required to be delivered by Sellers pursuant to this Agreement will 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 consummateddelivered.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is transactions contemplated by this Agreement shall be subject to the satisfaction (or, to the extent permitted by Applicable Law, or 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 at or prior to the Closing Date, of the following conditions:
(iia) the The representations and warranties of Seller contained Sellers set forth in this Agreement (disregarding shall have been true and correct in all materiality material respects as of the date of this Agreement, and Material Adverse Effect qualifications) shall be true when and correct in all material respects as of the Closing Date as though made on and at as of the Closing Date (except to the extent that such representations and warranties are expressly intended to speak only as of an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such date, and except to the extent that such representations and warranties are already qualified by terms such as "material" or "Material Adverse Effect," in which case such representations and warranties shall be true and correct in all respects on and as of the Closing Date).
(b) Each of the agreements and covenants of Sellers to be performed and complied with by Sellers pursuant to this Agreement prior to the Closing Date shall have been duly performed and complied with in all material respects.
(c) Sellers shall have delivered to Buyer a certificate, dated as of the Closing Date, as if made at to the satisfaction by Sellers of the conditions set forth in Sections 9.1(c), 9.3(a) and as of such date, with only such exceptions as would not, individually or in the aggregate, reasonably be expected to 9.3(b).
(d) The Financing Conditions shall have a Material Adverse Effect been satisfied and (iii) Buyer shall have received a certificate signed by an officer the funds which Buyer is entitled to receive under the Financing Agreements and the Equity Offering as 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 title company that issued the Title Commitments or another title insurance company reasonably satisfactory to Buyer (the "Title Company") shall be prepared to issue (subject to any requirements to such issuance that are to be satisfied by Buyer) a 1992 ALTA Owner's Title Insurance Policy or other form of policy reasonably acceptable to the Buyer for each Owned Real Property, insuring the Buyer's fee simple title to each Owned Real Property as of the Debt Financing Closing Date (including all recorded appurtenant easements, insured as separate legal parcels), with gap coverage through the date of recording, subject only to Permitted Liens, in such amount as the Buyer reasonably determines to be the value of the Owned Real Property insured thereunder and including such endorsements as Buyer or Buyer's Lender reasonably requires (the "Title Policies").
(f) The Buyer shall have been received obtained a survey for each parcel of Owned Real Property, dated after the date of this Agreement, prepared by a surveyor licensed in the jurisdiction where the applicable Owned Real Property is located, reasonably satisfactory to the Buyer, or shall be fully available and conforming to Buyer1999 ALTA/ACSM Minimum Detail Requirements for Land Title Surveys, 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 thereofTable A Items Nos. 1, 2, 3, 4, 6, 7(a); 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., 7(b)(1), 7(c), 0, 0, 00, 00(x)(0), 00, 00 Xxxxx Purchase Agreement
Appears in 1 contract
Samples: Asset Purchase Agreement (Standard Motor Products Inc)
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:
(a) (i) the Company and each Seller shall have performed in all material respects all of its their obligations hereunder required to be performed by it them on or prior to the Closing Date, (ii) the representations and warranties of the Company and each Seller contained in this Agreement (at the time of its execution and delivery and in any certificate or other writing delivered by the Company or a Seller pursuant hereto, disregarding all qualifications and exceptions contained therein relating to materiality and or Material Adverse Effect qualifications) Effect, shall be true when made and correct at and as of the Closing Date, 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 date and (iii) Buyer shall have received a certificate signed by an officer the President of the Company and by each Seller to the foregoing effect;.
(b) all consents of third parties required No court, arbitrator or governmental body, agency or official shall have issued any order, and there shall not be any statute, rule or regulation, restraining the effective operation by the agreements listed in Section 10.02(b) Buyer of the Disclosure Schedule business of the Company and the Subsidiaries after the Closing Date and no proceeding challenging this Agreement or the transactions contemplated hereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been obtained;instituted by any Person before any court, arbitrator or governmental body, agency or official and be pending.
(c) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business as now conducted The Company shall have been transferred to or otherwise obtained by Buyer on or before received all of the Closing Date, with only such exceptions as would not reasonably be expected to have a Material Adverse Effect;Required Consents.
(d) Buyer Sellers shall have received all documents it may reasonably request relating delivered to (i) Buyer certificates for the existence of Seller and its Subsidiaries (including the Purchased Subsidiaries) and (ii) the authority of Seller for this AgreementShares duly endorsed or accompanied by stock powers duly endorsed in blank, all in form and substance reasonably satisfactory to Buyer; andwith any required transfer stamps affixed thereto.
(e) The proceeds of the Debt Financing Company shall have been received by Buyer, or shall be fully available issued the Employee Shares immediately prior to Buyer, on substantially the terms and conditions Closing to the employees as set forth in the Debt Commitment Letter (including after giving effect Schedule 3.05 and shall have made appropriate arrangements with respect to any changes pursuant withholding obligation with respect to the “market flex” provisions thereof); provided that such shares.
(f) Buyer shall not be entitled to assert the failure have entered into effective Additional Seller Purchase Agreements with each of the condition set forth Additional Sellers and shall have received the stock certificates duly endorsed in this blank, for the Shares owned by the Additional Sellers.
(g) Final Stockholders' Equity, determined in accordance with Section 10.02(e) if the failure of the Debt Financing to 10.04, shall be consummated has resulted solely from the failure of the Equity Financing to be consummated.at least $300,000
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated by this Agreement is subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by Buyer) as of the Closing of each of the following further additional conditions:
(ia) Seller shall have performed duly performed, satisfied and complied with, in all material respects all respects, each of its the covenants, agreements and obligations hereunder set forth in this Agreement required to be performed performed, satisfied or complied with by it on at or prior to the Closing Date, Closing.
(iib) the (i) The representations and warranties of Seller contained (other than the representations and warranties set forth in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) the Specified Representations made by Seller), as such representations or warranties are modified by any Updating Information, shall be true when made and at correct as of the date hereof and as of the Closing DateDate as though made on the Closing Date (without regard to any qualifier therein as to materiality, as if made at Seller Material Adverse Effect or Company Material Adverse Effect), except to the extent such representations and warranties expressly relate to an earlier date (in which case they shall be true and correct as of such earlier date, with only ) and except where the failure of such exceptions as would notrepresentations and warranties to be so true and correct, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect has not had, 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 have, a Seller Material Adverse Effect or a Company 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 Specified Representations made by Seller, as such representations or warranties are modified by any Updating Information, shall be true and correct as of the date hereof and as of the Closing Date as though made on the Closing Date in all respects (without regard to any qualifier therein as to materiality, Seller Material Adverse Effect or Company Material Adverse Effect), except to the extent such representations and warranties expressly relate to an earlier date (in which case they shall be so true and correct as of such earlier date) and except for such breaches that are de minimis.
(c) Seller shall have delivered to Buyer a certificate, dated as of the Closing Date, duly executed on behalf of Seller for by an authorized executive officer thereof, certifying that the conditions specified in Sections 6.02(a), Section 6.02(b) and Section 6.02(d) have been fulfilled.
(d) Since the date of this Agreement, all in form there has not occurred a Seller Material Adverse Effect or Company Material Adverse Effect.
(e) Buyer shall have obtained such amount of additional debt financing as it reasonably deems necessary to consummate the transactions contemplated hereby, on terms and substance conditions reasonably satisfactory to Buyer; and.
(ef) The proceeds of the Debt Financing FERC Waiver 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 consummatedissued.
Appears in 1 contract
Samples: Asset Purchase Agreement (Old Dominion Electric Cooperative)
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 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, (iiDate and Error! Bookmark not defined.(ii) the representations and warranties of Seller contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) Article 3 shall be true when made and at and as of the Closing Date, as if made at and as of such date (except to the extent such representation or warranty expressly relates solely to an earlier date, in which case at and as of such earlier date), disregarding the phrases “material”, “materially”, “in all material respects” or similar phrases and any qualifications as to a Material Adverse Effect, with only such exceptions as would not, individually or not in the aggregateaggregate have, or reasonably be expected to have have, a Material Adverse Effect Effect; provided that notwithstanding the foregoing, (A)each of the representations and warranties of Seller contained in Sections 3.01, 3.02, 3.05(b), and 3.06(c), (d) and (iiie) shall be true in all material respects at and as of the Closing Date, as if made at and as of such date (except to the extent such representation or warranty expressly relates solely to an earlier date, in which case at and as of such earlier date) and (B)each of the representatives and warranties of Seller contained in Sections 3.05(a), 3.06(a), 3.06(b) and 3.08(a)(ii) shall be true in all respects as of the Closing Date, as if made at and as of such date (except to the extent such representation or warranty expressly relates to an earlier date, in which case at and as of such earlier date) except, in the case of Sections 3.05(a), 3.06(a) and 3.06(b), for de minimis failures to be true. Buyer shall have received a certificate signed by an executive officer of Seller to the effect set forth in 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 clauses (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.
Appears in 1 contract
Samples: Subscription Agreement (Oriental Financial Group Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated hereby 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, Initial Inventory Date (it being understood that this provision will not limit Seller's obligation to perform under Section 5.01 until the applicable Effective Time),
(ii) the representations and warranties of Seller contained Agreement and in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) any certificate or other writing delivered by Seller pursuant hereto shall be true when made and in all material respects at and as of the Closing Initial Inventory Date, as if made at and as of such datedate (it being understood that this condition will be deemed satisfied with respect to any existing action, with only suit, investigation or proceeding referred to in Section 3.06(b) so long as such exceptions as would notaction, individually suit, investigation or in proceeding has no reasonable likelihood of success on the aggregate, reasonably be expected to have a Material Adverse Effect merits) and (iii) Buyer shall have received a certificate signed by an appropriate officer of Seller to the foregoing effect;.
(b) all consents of third parties required by the agreements listed in Section 10.02(b) As of the Disclosure Schedule Initial Inventory Date, there shall have be no Store as to which any landlord consent required for the assignment of such Store Lease in connection with the transactions contemplated hereby has not 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 legal opinion of Seller and its Subsidiaries (including the Purchased Subsidiaries) and (ii) the authority of Seller for this AgreementDavis Polk & Wardwelx, all in form and substance reasonably satisfactory to Buyer; and
(e) The proceeds of the Debt Financing shall have been received by Buyerxxxxxxl counsel xx Xxxxer, 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 form 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.Exhibit 10.02
Appears in 1 contract
Samples: Asset Purchase Agreement (Freds Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated hereby is subject to the satisfaction or waiver (orin whole or in part) by Buyer of each of the following conditions, PROVIDED, HOWEVER, that if Buyer waives in writing the satisfaction of any of the following conditions (in whole or in part) (other than the conditions set forth in Sections 8.01(a)(iii) and 8.01(a)(iv), as to which this proviso shall not apply and for which Seller shall be liable if and to the extent permitted by Applicable Lawprovided in Article IX) and the Closing occurs, waiver by then neither Buyer) , the Company nor any of the following further conditionsCompany's Subsidiaries shall have any claim whatsoever (whether for indemnification or otherwise) against Seller or any of its Affiliates that in any way relates to or arises out of the failure of such condition (or such part thereof) to be satisfied or out of the circumstances or events that caused the failure of such condition (or such part thereof) to be satisfied:
(a) (i) each of the obligations of Seller shall have performed in all material respects all of its obligations hereunder required to be performed and satisfied by it on or prior to the Closing DateDate that is not qualified as to materiality shall have been performed and satisfied in all material respects, (ii) each of the obligations of Seller hereunder required to be performed and satisfied by it on or prior to the Closing Date that is qualified as to materiality shall have been performed and satisfied, (iii) each of the representations and warranties of Seller contained in this Agreement (disregarding that is not qualified as to materiality shall have been true and correct in all materiality material respects when made and Material Adverse Effect qualifications) shall be true when made and correct in all material respects at and as of the Closing Date, Date with the same force and effect as if made as of the Closing Date, (iv) each of the representations and warranties of Seller contained in this Agreement that is qualified as to materiality shall have been true and correct when made and shall be true and correct at and as of such date, the Closing Date with only such exceptions the same force and effect as would not, individually or in if made as of the aggregate, reasonably be expected to have a Material Adverse Effect Closing Date and (iiiv) Buyer shall have received a certificate certificates signed by an a duly authorized executive officer of Seller to the foregoing effect;
effect and to the effect that the conditions specified within this Section 8.01 have been satisfied; PROVIDED, HOWEVER, that solely with respect to clauses (biii), (iv) all consents and (v) of third parties required by this Section 8.01(a) as they apply to the agreements listed representations and warranties contained in Section 10.02(b) 3.17, "Environmental Laws" means all applicable environmental statutes, rules, regulations, ordinances and orders of the Disclosure Schedule shall have been obtained;
(c) all any governmental licenses, authorizations, permits, consents and approvals required to carry on the Business entity as now conducted shall have been transferred to interpreted or otherwise obtained by Buyer on or before in effect as of 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 including those relating to (i) the existence of Seller Hazardous Substances and its Subsidiaries (including the Purchased Subsidiaries) human health 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 consummatedsafety.
Appears in 1 contract
Samples: Stock Purchase Agreement (Aftermarket Technology Corp)
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 transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) all of the representations and warranties of Sellers set forth in this Agreement or in any Exhibit, Annex, Schedule or document delivered pursuant hereto (other than breaches of representations and warranties dealt with prior to Closing pursuant to Section 6.6), without regard to any qualification or limitation with respect to materiality (whether by reference to “Material Adverse Effect” or otherwise), shall be true and correct in all respects as of the date of this Agreement and at and as of the Closing Date with the same effect as though such representations and warranties were made at and as of the Closing unless the aggregate failure of such representations or warranties to be true and correct does not have a Material Adverse Effect; provided that if a representation or warranty is expressly made only as of a specific date, it need only be true and correct in all respects as of such date;
(b) Sellers shall have performed and complied with all of their covenants under this Agreement in all material respects through the Closing, it being understood that in no event shall Buyer be obligated to purchase any Units pursuant to this Agreement if any Seller defaults in its obligation to sell its Units to Buyer;
(c) Buyer shall have procured the consents referred to in Section 4.3 of Annex I;
(d) no Proceeding shall be pending or threatened before any Governmental Authority or before any arbitrator wherein an unfavorable Decree 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, (iii) affect materially and adversely the right of Buyer or its Affiliates to own or control the Units, or (iv) affect and materially and adversely the right of Buyer or its Affiliates to own their assets or to operate the Business (and no such Decree shall be in effect);
(e) Sellers shall have delivered, at their sole expense, to Buyer evidence satisfactory to Buyer that all consents, waivers, approvals, authorizations, orders, amendments to agreements and estoppel agreements set forth in Section 8.1(e) of the Disclosure Schedule to be obtained from any Governmental Authorities or other Persons, and all filings required to be made with any Governmental Authorities or other Persons by Sellers or the Company for the consummation of the transactions contemplated by this Agreement, including, without limitation all required approvals, clearance or decisions under the HSR Act, shall have been obtained, made or entered into (such expense and delivery obligations to be borne by Sellers with respect to consents, waivers, approvals, authorizations, orders, amendments to agreements, estoppel agreements and filings required with respect to the Company);
(f) between the date of this Agreement and the Closing Date, no Material Adverse Change regarding the Units or the Business taken as a whole shall have occurred;
(g) Sellers shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 8.1(a)-(f) are satisfied in all respects;
(h) The Majority Bxxxxxxx Unitholders, Buyer and the Escrow Agent shall have entered into the Escrow Agreement dated as of the Closing Date;
(i) [Reserved];
(j) the satisfactory completion of all business, legal, sales, environmental, title, accounting and other due diligence by Buyer’s funding and bonding sources and their representatives and agents;
(k) except as set forth on Section 2.6 of the Disclosure Schedule, all contracts, agreements or arrangements between, among or otherwise involving any of the Units and a Seller or any Affiliate of a Seller (including the Company) shall have been terminated on or prior to the Closing Date, and none of the Units shall have any Liability to Sellers or any of their Affiliates thereunder;
(iil) Buyer shall have received the representations and warranties consent of Seller contained in its lenders to this Agreement and the completion of the transactions contemplated by this Agreement;
(disregarding m) Buyer shall have received from counsel to Sellers one or more opinions in form and substance as set forth in Exhibit D attached to this Agreement, addressed to Buyer, and dated as of the Closing Date;
(n) substantially all materiality and Material Adverse Effect qualifications) of the Company’s Employees shall be true when made and at available for hiring or retention by Buyer, in its sole discretion, on and as of the Closing Date;
(o) [Reserved];
(p) [Reserved];
(q) Sellers shall have delivered the financial statements required pursuant to Section 6.8;
(r) Buyer shall have determined that the estimated coal resources included in the Business that have been previously reported by Sellers during Buyer’s due diligence, satisfy the definition of “Reserves” as set forth in the SEC Industry Guide 7 and the United States Geological Survey;
(s) no union organizational campaigns, representation proceedings, labor strikes, work stoppages, slowdowns, or labor arbitration proceedings affecting the Company’s assets or Mining Activities at or deliveries to any mine or other facility of the Company shall be pending or threatened;
(t) all other transactions pursuant to which Buyer or any of its Affiliates acquire assets or operations related to the Business shall have been consummated prior to or simultaneously with the transactions contemplated by this Agreement;
(u) Sellers shall have delivered, at their sole expense, to Buyer evidence satisfactory to Buyer that (a) (i) the Retained Debt (and all related notes, loan agreements, security agreements and related documents) has been assigned or otherwise transferred to a Seller or a third party designated by Sellers (other than the Company) or (ii) the Retained Debt has been fully paid and satisfied (including all accrued interest, prepayment penalties, early termination fees or other obligations), and (b) (i) all security interests in the collateral securing the Retained Debt and all related deeds of trust, as if made at the same relates to the Units, has been released and as of such dateterminated, with only such exceptions as would not, individually or in the aggregate, reasonably be expected to (ii) all related UCC financing statements have a Material Adverse Effect been terminated and (iii) Buyer all other deeds of trust and other security documents, that relate to the Company and its assets have been released;
(v) the Company or any Person “owned or controlled” by any Seller, Company or any Person which “owns or controls” the Company is “permit blocked” or shall have received a certificate signed by an officer notice from the OSM or the agency 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 licensesany state administering SMCRA or any comparable state Law, 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 that it may reasonably request relating to is: (i) the existence of Seller and its Subsidiaries (including the Purchased Subsidiaries) and ineligible to receive additional surface mining permits; or (ii) the authority of Seller for this Agreementactively under investigation to determine whether their eligibility to receive such permits should be revoked, 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.i.
Appears in 1 contract
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:
(a) (i) Seller and Parent shall have performed in all material respects all of its their obligations hereunder required to be performed by it them on or prior to the Closing Date, (ii) the representations and warranties of Seller and Parent contained in this Agreement and in any certificate or other writing delivered by Seller pursuant hereto (disregarding all A) that are qualified by materiality and Material Adverse Effect qualifications) or any similar qualification or standard shall be true when made and at and as of the Closing Date, Date as if made at and as of such datedate and (B) that are not qualified by materiality or any similar qualification or standard shall be true in all material respects at and as of the Closing Date as if made at and as of such time, 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 and Parent to the foregoing effect;
(b) all consents there shall not be threatened, instituted or pending any action or proceeding by any Person before any Governmental Authority seeking to impose or confirm limitations on the ability of third parties required by the agreements listed in Section 10.02(b) Buyer or any of its Affiliates to exercise effectively full rights of ownership of the Disclosure Schedule shall have been obtainedSubject Securities, including the right to vote any Subject Securities on all matters properly presented to the Company’s shareholders (including the holders of any ADS);
(c) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business as now conducted shall have been transferred to no Material Adverse Effect has occurred or otherwise obtained by Buyer on or before the Closing Date, with only such exceptions as would not is reasonably be expected to have a Material Adverse Effectoccur as an immediate result of, or immediately following, the Closing;
(d) Buyer Seller shall have received all executed such documents it may reasonably request relating as are necessary to (i) assign its rights and obligations under the existence of Seller and its Subsidiaries (including Shareholders Agreement with respect to the Purchased Subsidiaries) and (ii) the authority of Seller for this Agreement, all in form and substance reasonably satisfactory Subject Securities to Buyer, such assignment taking effect immediately upon Closing; and
(e) The proceeds the Depositary shall have received such documents as are necessary for the transfer 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 Subject Securities from the failure of the Equity Financing to be consummated.Seller;
Appears in 1 contract
Samples: Share Purchase Agreement (Vast Profit Holdings LTD)
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 (or, to the extent permitted by Applicable Law, waiver by Buyer) of the following further conditions:
(i) Seller the Bankruptcy Court shall have performed approved the Plan of Reorganization attached hereto as Exhibit B (together with any modifications or amendments thereto approved by Buyer) and the transactions contemplated thereby (which shall be the transaction contemplated by this Agreement) and entered the Confirmation Order (and such Order shall be final and nonappealable) in form and substance satisfactory to Buyer and no party shall have filed a Notice of Appeal and obtained an Order staying the effect of the Confirmation pending appeal which stay has not been lifted or otherwise terminated; the Confirmation Order and all material respects Orders related thereto shall have been entered in accordance with all applicable provisions of its obligations hereunder required the Bankruptcy Code, Bankruptcy Rules, and Local Rules of the Bankruptcy Court (the “Local Rules”) after proper, timely, and adequate notice to all parties entitled to notice pursuant to all applicable provisions of the Bankruptcy Code, Bankruptcy Rules, and Local Rules unless otherwise directed by Order of the Bankruptcy Court; notwithstanding that the sale contemplated herein shall be performed approved and authorized by it on or prior the Confirmation Order, the sale shall be as under 11 U.S.C. §363 and the Buyer shall be afforded all protections provided therein including but not limited to 11 U.S.C. §§363(f) and (m); the Closing Date, Confirmation Order shall include a finding that the Buyer is a good faith purchaser for purposes of the provisions of 11 U.S.C. § 363(m);
(ii) the representations and warranties there shall not be any injunction, judgment, order, decree or ruling in effect preventing consummation of Seller contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall be true when made and at and as any 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 transactions contemplated by this Agreement;
(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 there shall not have occurred any material destruction or significant change to the Acquired Assets of Seller taken as would a whole, whether or not reasonably insured (Seller shall be expected obligated to have a Material Adverse Effectgive Buyer notice of any of the same as soon as possible after the occurrence thereof);
(div) 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 each of the Debt Financing Assumed Contracts shall have been received assigned by Buyer, or shall be fully available to Buyer, on substantially the terms Seller and conditions set forth in the Debt Commitment Letter (including after giving effect to any changes assumed by Buyer pursuant to the “market flex” provisions thereof)11 U.S.C. §365; provided that Buyer shall not be entitled to assert the failure of the may waive any condition set forth specified in this Section 10.02(e§7(a) if it executes a writing so stating at or prior to the failure of the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummatedClosing.
Appears in 1 contract
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) the Company and 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 relating to the Company contained in this Agreement (at the time of its execution and delivery and in any certificate or other writing delivered by the Seller pursuant hereto, disregarding all qualifications and exceptions contained therein relating to materiality and or Material Adverse Effect qualifications) Effect, shall be true when made and correct in all material respects at and as of the Closing Date, Date as if made at and as of such date, date with only such exceptions as would not, individually or not in the aggregate, aggregate reasonably be expected to have a Material Adverse Effect and (iii) Buyer shall have received a certificate signed by an officer the President of the Seller to the foregoing effect;.
(b) all consents of third parties required No court, arbitrator or governmental body, agency or official shall have issued any order, and there shall not be any statute, rule or regulation, restraining the effective operation by the agreements listed in Section 10.02(b) Buyer of the Disclosure Schedule shall have been obtained;business of the Company and the Subsidiaries after the Closing Date.
(c) all governmental licenses, authorizations, permits, consents Execution and approvals required to carry on delivery of the Business as now conducted shall have been transferred to or otherwise obtained by Buyer on or before Ancillary Agreements (other than the Closing Date, with only such exceptions as would not reasonably be expected to have a Material Adverse Effect;Denmark Services Agreement).
(d) Buyer The Company shall have received all documents it may reasonably request relating consents, authorizations or approvals from the governmental agencies referred to (i) the existence of Seller and its Subsidiaries (including the Purchased Subsidiaries) and (ii) the authority of Seller for this Agreementin Section 3.02, all in each case in form and substance reasonably satisfactory to Buyer; and, and no such consent, authorization or approval shall have been revoked.
(e) The proceeds Execution and delivery of Employment Agreements in form satisfactory to Buyer with Xxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxx Xxxx, Xxxx Xxxxxx and Xxxxx XxXxxxxx.
(f) Execution and delivery of a Mutual Termination and Release in substantially the Debt Financing form attached hereto as Exhibit G and providing for termination the Note Agreement, AMT Promissory Note and Agfa Promissory Note (as such terms are defined therein).
(g) Buyer shall have been received by Buyerthe legal opinion of Seller’s counsel, or shall be fully available to Buyer, on in substantially the terms and conditions set forth in the Debt Commitment Letter form attached hereto as Exhibit K.
(including after giving effect to any changes pursuant to the “market flex” provisions thereof); provided that h) Buyer shall not be entitled to assert received a certificate of non-foreign status from Seller satisfying the failure requirements of the condition set forth Treasury Regulation Section 1.1445-2(b).
(i) There shall have occurred no Material Adverse Change.
(j) Buyer shall have received all other closing documents specified in Section 2.02 of 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 consummatedAgreement.
Appears in 1 contract
Samples: Stock Purchase Agreement
Conditions to Obligation of Buyer. The obligation of Buyer BUYER to consummate the transactions to be performed by it in connection with 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 The representations and warranties set forth in Section 3 above shall have performed be true and correct 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 ;
(ii) SELLER shall have performed and as complied with all of such date, with only such exceptions as would not, individually or its covenants hereunder in all material respects through the aggregate, reasonably be expected to have a Material Adverse Effect and Closing;
(iii) Buyer SELLER shall have delivered to BUYER a certificate to the effect that each of the conditions specified above in Section 6(a)(i)-(ii) is satisfied in all respects;
(iv) no action, suit, or proceeding shall be pending or threatened before any Governmental Authority wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent, restrain, prohibit or invalidate or seek damages in connection with the consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(v) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and SELLER and BUYER shall have received a certificate signed by an officer all other material authorizations, consents, and approvals of Seller Governmental Authorities referred to the foregoing effectin Section 3(c), except for Customary Post-Closing Consents, and Section 4(c) above;
(bvi) all consents Persons holding preferential purchase rights, rights of third parties required by the agreements listed first refusal, or similar rights referred to in Section 10.02(b3(h) of the Disclosure Schedule with respect to any material part of the SELLER Interests shall have been obtainedwaived such rights in writing;
(cvii) all governmental licensesSince the date of this Agreement, authorizations, permits, consents and approvals required to carry on the Business as now conducted no Catastrophic Event 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 Effectoccurred;
(dviii) Buyer if SELLER shall have received all documents it may reasonably request relating given any notice pursuant to Section 9(a)(iv) below, either (iA) BUYER shall have given its notice therein referred to or (B) the existence of Seller 15 day period therein referred to shall have ended (it being understood that, if this clause (B) is applicable, this Agreement shall terminate and its Subsidiaries (including the Purchased Subsidiaries) and (ii) the authority of Seller for this Agreement, all in form and substance reasonably satisfactory to Buyerno Closing hereunder shall occur); 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.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Duke Energy Field Services LLC)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated by this Agreement is subject to the satisfaction (orsatisfaction, 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 before the Closing Date, of each of the following conditions (iiany of which may be waived by Buyer, in whole or in part):
(a) the representations and warranties of Seller contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) Warranties shall be true when made and at and correct in all respects as of the Closing DateDate except to the extent any such representation or warranty speaks as of the Execution Date only or any other specific date only, as if made at in which case such Seller Warranty shall have been true and correct in all respects as of such date, with only and except where the failure of such exceptions as representations and warranties to be so true and correct (without regard for any “material,” “Material Adverse Effect” or similar qualification) would not, individually or in the aggregate, reasonably be expected to have constitute a Material Adverse Effect and (iii) Buyer shall have received a certificate signed by an officer of Seller to the foregoing effectEffect;
(b) Seller shall have obtained in writing all consents of third parties required by the agreements listed in Section 10.02(b) of the Disclosure Schedule Required Governmental Approvals in form and substance satisfactory to Buyer;
(c) no Material Adverse Effect shall have occurred on or after the Execution Date and be continuing;
(d) all of the covenants and obligations that Seller or Parent is required to perform or comply with under this Agreement on or before the Closing Date shall have been duly performed and complied with in all material respects;
(e) there shall not be (i) in effect any Law or Judgment or (ii) any pending Proceedings that would prohibit or make illegal the consummation of the transactions contemplated by this Agreement or cause the transactions contemplated by this Agreement to be rescinded following consummation;
(f) the Parent Shareholder Approval shall have been obtained;
(cg) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business as now conducted Buyer Shareholder Approval shall have been transferred to or otherwise obtained by Buyer on or before obtained;
(h) the Parent Warranties shall be true and correct in all respects as of the Closing DateDate except to the extent any such representation or warranty speaks as of the Execution Date only or any other specific date only, with only in which case such exceptions Parent Warranty shall have been true and correct in all respects as of such date, and except where the failure of such representations and warranties to be so true and correct (without regard for any “material,” “Material Adverse Effect” or similar qualification) would not reasonably be expected to have not, individually or in the aggregate, constitute 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
(ei) The proceeds of the Debt Financing shall have no voluntary or involuntary bankruptcy or other insolvency proceeding has been received commenced 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 against any changes pursuant to the “market flex” provisions thereof); provided Acquired Company that Buyer shall has 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 consummatedbeen dismissed.
Appears in 1 contract
Samples: Share Purchase Agreement (Harvest Natural Resources, Inc.)
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:
(a) Each of (i) the Seller Fundamental Representations shall have performed be true and correct in all material respects all at and as of its obligations hereunder required to be performed by it on or prior to the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing Date, and (ii) the representations and warranties of Seller contained the Sellers set forth in this Agreement Article 3 (other than those that are subject to clause (i)) shall be true and correct in all respects (ignoring and disregarding all materiality and Material Adverse Effect qualificationsqualifications set forth therein) shall be true when at and as of the date of this Agreement and at and as of the Closing Date as if made and at and as of the Closing Date, as if made at and as except where such inaccuracy of such date, with only such exceptions as would not, a representation or warranty (individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (iiiwhen aggregated with other such inaccuracies of representations or warranties) 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; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clause (i) or (ii), as applicable) only as of such date or period;
(b) Each of the Sellers shall have performed in all material respects, and complied in all material respects with, all covenants and agreements required by this Agreement to be performed and complied with prior to or on the Closing Date, including but not limited to, those set out in Section 5.02.
(c) Since the date of this Agreement, there shall not have occurred any event, change, circumstance or effect that, individually or in the aggregate, has resulted in or would reasonably be expected to result in a Material Adverse Effect;
(d) Each Seller shall have executed and delivered to Buyer each of the Ancillary Agreements to which such Seller is a party;
(e) The Sellers shall have received all consents, permissions and approvals of any Person required or necessary for (i) the transfer of all Required Contracts and Leases, (ii) the transfer of all Permits except those set forth in Section 10.02(e) of the Seller Disclosure Schedule, and (iii) the consummation of the transactions contemplated by this Agreement and the Ancillary Agreement (but excluding in the case of sub-clauses (e)(ii) and (iii), any consents and approvals the absence of which would not have a Material Adverse Effect) ((i), and (ii) and (iii) collectively, the “Required Consents”);
(f) The Bankruptcy Court shall not have entered an order determining that any Required Contract or Lease may not be assumed by a Seller or assigned to Buyer;
(g) Buyer shall have received all documents it they may have reasonably request requested relating to (i) the existence of Seller the Sellers and the Subsidiaries and Solazyme Bunge and its Subsidiaries (including the Purchased Subsidiaries) and (ii) the authority of each Seller for this AgreementAgreement and the Ancillary Agreements to which such Seller is a party, all in form and substance reasonably satisfactory to Buyer; and;
(eh) The proceeds of the Debt Financing Each Seller shall have been received by Buyer, or shall be fully available provided to Buyer a certification in form and content reasonably acceptable to Buyer, on substantially dated as of the Closing Date, executed by such Seller stating, under penalty of perjury, such Seller’s United States taxpayer identification number and that such Seller is not a foreign person, pursuant to Code Section 1445(b)(2);
(i) All conditions to the effectiveness of the Consent (other than the condition that the Closing under this Agreement shall have occurred), as entered into among the Bunge Parties, Corbion and the Debtors (as those terms are defined in the Consent), have been satisfied and that the Consent will, following the Closing, be in full force and effect at the Closing in accordance with its terms and conditions set forth have not been altered, amended, changed or terminated by the Bunge Parties or any of the Debtors;
(j) No fewer than 75% of the Immediate Employees to whom Buyer shall have made offers of employment pursuant to Section 9.02(b) shall have accepted such offers of employment and agreed to become Transferred Employees effective as of Closing, provided that this Section 10.02(j) shall have no further force and effect from the date that is one Business Day prior to the scheduled date of the Auction as specified in the Debt Commitment Letter (including after giving effect to any changes pursuant bidding procedures attached to the Bidding Procedures Order (regardless of whether or not the Auction is held), and shall be deemed satisfied following such date;
(k) BNDES shall not have provided notice of or otherwise declared a default under, or taken any action to cancel or accelerate the maturity or to call or demand repayment of any principal, interest or other amounts owed under, that certain Credit Facility Agreement No. 12.2.1149.1, dated as of January 16, 2014 between BNDES and Solayzme Bunge Produtos Renováveis Ltda (as the same may be amended through the Closing, the “market flex” provisions thereof)Credit Facility”) or taken any action, or provided notice or otherwise declared its intention, to foreclose on any collateral or other security supporting the obligations under the Credit Facility or otherwise to exercise any other remedies thereunder, BNDES shall not have called upon, or otherwise made a demand under, any guaranty of any Seller in respect of the loans or any other amounts owed under the Credit Facility and BNDES shall have agreed to permit Buyer's substitution as a guarantor of the Credit Facility in place of Parent Seller; provided that it is understood and agreed that Buyer shall not be entitled obligated to assert enter into any replacement guarantee unless the failure terms and conditions thereof are no more onerous than the terms and conditions of the condition existing Parent Seller guarantees and the aggregate liability of Buyer under the terms of such guarantees is capped at and does not exceed the amount of such guaranteed obligations as set forth in this Section 10.02(eSchedule 2.03(d); and
(l) if the failure The sale of the Debt Financing Transferred Equity to be consummated has resulted solely Buyer contemplated herein shall have been approved without any condition or restriction by XXXX and the 15 day opposition period following the XXXX approval shall have elapsed with (i) no objection from any third party, and (ii) the failure issuance by XXXX of the Equity Financing relevant clearance certificate attesting that the transaction has been officially approved; provided that if any third party objects to the transaction for any reason during said 15 day opposition period, the closing of the transaction contemplated herein shall be consummatedconditioned upon an affirmative final decision of XXXX’x Tribunal.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (TerraVia Holdings, Inc.)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated by this Agreement is subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by Xxxxx in writing and in Buyer’s sole discretion) of the following further conditions:
(ia) The representations and warranties of Seller contained in Article IV of this Agreement shall be true and correct (without giving effect to any materiality or Material Adverse Effect qualifications set forth herein) in all respects as of the date of this Agreement 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, the accuracy of which shall be determined as of that specified date in all respects), except where the failure of such representations and warranties to be true and correct would not have a Material Adverse Effect.
(b) Seller shall have performed or complied in all material respects with all of its obligations hereunder and covenants required by this Agreement to be performed or complied with by it Seller, on or prior to the Closing Date.
(c) Xxxxx shall have received a certificate, dated as of the Closing Date and signed by an authorized officer of Seller, to the effect that the conditions set forth in Sections 8.1(a) and 8.1(b) have been satisfied (iithe “Seller Closing Certificate”).
(d) No temporary restraining order, preliminary or permanent injunction or other Order preventing the representations and warranties consummation of Seller contained in the transactions contemplated by this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall be true when made in effect, and at there shall be no proceeding brought by any Governmental Entity pending before any court of competent jurisdiction seeking such an Order.
(e) The Bankruptcy Court shall have entered the Approval Order in accordance with Section 6.6(a), and the Approval Order shall be unstayed and in full force and effect 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;.
(bf) Seller has made or is prepared to immediately make all consents of third parties the deliveries 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 thereof3.2(b); 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.
Appears in 1 contract
Samples: Asset Purchase Agreement (GigaCloud Technology Inc)
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:
(a) (i) the Company and each Seller shall have performed in all material respects all of his or its obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of the Company and each Seller contained in this Agreement (at the time of its execution and delivery and in any certificate or other writing delivered by the Company or a Seller pursuant hereto, disregarding all qualifications and exceptions contained therein relating to materiality and or Material Adverse Effect qualifications) Effect, shall be true when made and at and as of the Closing Date, as if made at and as of such date, date with only such exceptions as would not, individually or not in the aggregate, aggregate reasonably be expected to have a Material Adverse Effect and (iii) Buyer shall have received a certificate signed by an officer the President and Chief Financial Officer of the Company and by each Seller to the foregoing effect;.
(b) all consents of third parties required No court, arbitrator or governmental body, agency or official shall have issued any order, and there shall not be any statute, rule or regulation, restraining the effective operation by the agreements listed in Section 10.02(b) Buyer of the Disclosure Schedule business of the Company after the Closing Date, and no proceeding challenging this Agreement or the transactions contemplated hereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been obtained;instituted by any Person before any court, arbitrator or governmental body, agency or official and be pending.
(c) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business as now conducted Buyer shall have been transferred received an opinion of counsel to or otherwise obtained by Buyer on or before the Company and Sellers dated the Closing Date, with only in such exceptions form and substance as would not Buyer may reasonably be expected to have a Material Adverse Effect;request.
(d) Buyer shall have received certificates of originality with regard to the Company's Proprietary Rights in form and substance reasonably satisfactory to Buyer.
(e) Buyer shall have received executed copies of the nondisclosure and assignment agreement in form and substance reasonably satisfactory to Buyer (the "Nondisclosure and Assignment Agreements") from each of the Company's present and former employees and consultants of the Company listed on Schedule 10.02(e). -----------------
(f) Buyer shall have received an executed copy of an Investment Representation Agreement from each of the Sellers receiving Share Consideration, and as of the Closing, there shall be no more than 35 stockholders of the Company who are not "accredited investors" as that term is defined in Regulation D promulgated under the Securities Act.
(g) Without prejudice to Buyer's rights under Section 11.02(a), Seller shall have delivered to Buyer revised Schedules to this Agreement containing information updated to the Closing Date.
(h) The Company and Sellers shall have received all consents, authorizations or approvals from the governmental agencies referred to in Sections 3.03(a) and 3.03(b), in each case in form and substance reasonably satisfactory to Buyer, and no such consent, authorization or approval shall have been revoked.
(i) The Sellers shall deliver to the Buyer stock certificates, evidencing the Shares, in each case endorsed in blank or with executed blank stock powers and all necessary stock transfer tax stamps attached.
(j) The Company shall deliver to the Buyer the resignations of each of the directors and officers of the Company and Employee Plan administrators and trustees, as the Buyer may specify to the Company in writing.
(k) The Company shall deliver to the Buyer a copy of the certificate or articles of incorporation of the Company and its Subsidiary certified by the Secretary of State or comparable public official of its jurisdiction of incorporation as of a date as near as practicable to the Closing Date.
(l) The Company shall deliver to the Buyer a copy of the by-laws of the Company and its Subsidiary as in effect on the Closing Date.
(m) The Company shall deliver to the Buyer the original minute and stock books of the Company and its Subsidiary.
(n) The Company shall deliver to the Buyer all files, documents, books and records of the business being sold pursuant to this Agreement and the transactions contemplated hereby.
(o) Xxxx Xxxxxx shall deliver to the Buyer the Share Subscription Agreement.
(p) Buyer shall have received all other closing documents specified in Section 2.02 of this Agreement and all other closing documents that 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 Agreementrequest, 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.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the transactions to be performed by Xxxxx in connection with the Closing is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Buyer) of the following further conditions:
(i) 8.1.1. all of the representations and warranties contained in Article 2 or made by Seller in any other Ancillary Agreement other than Seller Fundamental Representations must have been accurate in all material respects as of the date hereof and must be accurate in all material respects as if made on the Closing Date, and all of Seller Fundamental Representations must have been accurate in all respects as of the date hereof and must be accurate in all respects as if made on the Closing Date;
8.1.2. Seller shall have performed and complied in all material respects with all of its obligations hereunder required the covenants and agreements in this Agreement to be performed by it on or prior to or at the Closing;
8.1.3. Seller shall have delivered to Buyer at the Closing Datea certificate, (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, confirming that each of the conditions specified above in Sections 8.1.1 through 8.1.2 are satisfied;
8.1.4. there shall not be any order in effect preventing consummation of any of the Contemplated Transactions or any proceeding seeking to restrain, prevent, change or delay the consummation of any of the Contemplated Transactions;
8.1.5. there shall not be any order, claim or audit brought by any Governmental Authority against Seller or challenging or revoking any Permit included in the Purchased Assets, and there shall not be any order, interpretation of law or amendment to any law, rule or regulation that would materially adversely affect Buyer’s ability to obtain the Opening Variance; and;
8.1.6. the parties shall have received all consents and Permits of Governmental Authorities and other Persons necessary for the consummation of the Contemplated Transactions set forth on Schedule 4.2.2;
8.1.7. Seller shall have received a cessation variance for the Lakeland Facility from OMMU (the “Cessation Variance”);
8.1.8. Buyer and the Lakeland Facility landlord shall enter into an amendment to the Lakeland Facility Lease, effective as of the Closing, which shall include the terms set forth on Schedule B. Seller shall be responsible and shall pay or reimburse Buyer for the following, if such items are required or requested to be made in connection with obtaining the Lakeland Facility landlord’s consent to the assignment or amendment of the lease as contemplated herein: any one-time payments related to out-of-pocket expenses of the Lakeland Facility landlord (the “Lease Amendment Costs”);
8.1.9. Seller shall have delivered to Buyer each of the items set forth in Section 6.1; and
(e) The proceeds of the Debt Financing 8.1.10. Seller shall have been received delivered to Buyer all other instruments and documents required by Buyer, or shall this Agreement to be fully available delivered by Seller to Buyer, on substantially and such other instruments and documents which Buyer or its counsel may reasonably request to effectual the terms and conditions set forth in the Debt Commitment Letter (including after giving effect to transactions contemplated hereby. Buyer may waive 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 specified in this Section 10.02(e) 8.1 if it executes a writing so stating at or prior to the failure of the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummatedClosing.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated by this Agreement 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 fulfillment on or prior to the Closing Dateof each of the following conditions, any one or more of which (iito the extent permitted by applicable Law) the may be waived by Buyer:
(a) The representations and warranties of Seller Sellers contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall be true when true, correct and complete in all respects, both as of the date of this Agreement and as of the Closing (other than such representations and warranties that are made as of a specified date, which representations and warranties shall be true, correct and complete as of such date), except where the failure of such representations and warranties to be true, correct and complete.
(b) Sellers shall have performed or complied in all material respects with their material obligations and covenants required by this Agreement to be performed or complied with by them at and or prior to the Closing.
(c) Sellers shall have delivered to Buyer a certificate, dated as of the Closing Date, executed by a duly authorized officer of each Seller to the effect that the conditions set forth in Section 5.2(a) and Section 5.2(b) have been satisfied (the “Seller’s Closing Certificate”).
(d) Sellers shall have made the deliveries to Buyer and the Escrow Holder required under Section 1.4(a) and Section 1.4(c).
(e) Buyer obtaining confirmation from the applicable landlord party of the existing Store Leases and the Adjustment Amounts set forth in Section 1.2(c) hereof.
(f) Sellers and the applicable landlord parties entering into and executing lease amendments to the Store Leases for Store Nos. 3, 21, 44, 75, 90, 96 and 116 in the forms attached hereto as if made at and Disclosure Schedule 5.1(f) (which forms were populated on the Sellers’ data site as of such dateJune 12, with only such exceptions 2017).
(g) Buyer determining, in its reasonable discretion, that it may operate full-scale in-store pharmacies at each of the premises subject to the Store Leases and is not bound by any restrictions or covenants of the Sellers that would prohibit the Buyer from operating a full-scale in-store pharmacy at each of the premises subject to the Store Leases as would notof the Closing.
(i) The Bankruptcy Court shall have entered the Sale Order, individually or in and any other order necessary to close the aggregatesale of the Assets to the Buyer, reasonably (ii) the Sale Order, and any other order necessary to close the sale of the Assets to the Buyer, shall be expected to have a Material Adverse Effect final and non-appealable order, (iii) Buyer shall have received a certificate signed by an officer no order staying, reversing, modifying, or amending the Sale Order, and any other order necessary to close the sale of Seller the Assets to the foregoing effect;
(b) all consents of third parties required by the agreements listed Buyer, shall be 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 effect 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 and (iv) the Sale Order, and any other order necessary to close the sale of the Assets to the Buyer, shall not reasonably be expected subject to have a Material Adverse Effect;any challenge of the Buyer’s good faith under section 363(m) of the Bankruptcy Code.
(d) Buyer shall have received all documents it may reasonably request relating to (i) The Bankruptcy Court has not entered an order precluding 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 consummation of the Debt Financing shall have been received by Buyer, or shall be fully available to Buyer, transactions contemplated hereby on substantially the terms and conditions set forth in this Agreement.
(j) The Sale Order approving this Agreement (i) shall be a final and non- appealable order, (ii) shall be entered by the Debt Commitment Letter Bankruptcy Court, under 11 U.S.C. §§ 105, 363 and 365 (iii) shall be in form and substance satisfactory to Buyer, in the sole and absolute discretion of the Buyer, and (iv) shall also provide, without limitation, that:
(i) This Agreement is or will be a legal, valid, enforceable and effective transfer of the Assets to Buyer free and clear of any and all claims, liens, encumbrances, mortgages, charges, security interests, restrictions or any other interests or imperfections of title whatsoever pursuant to 11 U.S.C. §§ 105, 363(f) and 365;
(ii) This Agreement vests or will vest Buyer with good title to the Assets, including but not limited to the Store Leases, free and clear of any and all claims, liens, encumbrances, mortgages, charges, security interests, restrictions or any other interests or imperfections of title whatsoever pursuant to 11 U.S.C. §§ 105, 363(f) and 365 that in any manner relate to the Assets;
(iii) This Agreement constitutes reasonably equivalent value and fair consideration for the Assets being purchased;
(iv) The Buyer shall be found by the Bankruptcy Court to be a good faith purchaser of the Assets, as that term is used in 11 U.S.C. § 363(m);
(v) The Buyer may remain dark at the premises (e.g., the Store Properties), for an amount of time to be determined by Buyer, in its sole and absolute discretion, for the purpose of remodeling, stocking, fixturing, and rebranding each of the Store Properties;
(vi) Any radius, tenant mix, prohibited use, exclusive use, operating covenants, or other restrictive provisions contained in the Store Leases, Assigned Sublease or any other contract and agreement that the Seller is a party to, including but not limited to, any restrictive covenant with any third party including, but not limited to, CVS Health and its affiliated entities, regarding the operation by the Buyer of a full-scale pharmacy at each of the Store Properties, are deemed anti-assignment provisions and/or unenforceable as to the Buyer and not binding on Buyer, its Affiliates, successors, or assigns; and
(vii) Any term, condition or provisions in any Store Lease or Assigned Sublease that (A) prohibit or condition the assignment of such Store Lease or Assigned Sublease for any reason, including but not limited to, any radius, tenant mix, prohibited use, exclusive use, operating covenants, or other restrictive provisions contained in the Store Leases or Assigned Subleases or any other contract and agreement that the Seller is a party to, including but not limited to, any restrictive covenant with any third party including, but not limited to, CVS Health and its affiliated entities, regarding the operation by the Buyer of a full-scale pharmacy at each of the Store Properties or (B) allow the party to such Store Lease to cancel, terminate, recapture, impose any penalty, condition on renewal or extension or modify any term or condition upon the assignment of such Store Lease or Assigned Sublease or (C) provide for additional payments, i.e., so called “profit” sharing/splitting, penalties, fees, charges or other financial accommodations in favor of the applicable landlord upon assignment of such Store Lease or Assigned Sublease or (D) provide for any rights of first refusal on a landlord’s part, or any recapture or termination rights in favor of the applicable landlord, or any right of a landlord to take an assignment of the Store Lease or the Assigned Sublease by the Debtors in accordance herewith, are unenforceable, as to the Buyer, and/or anti- assignment provisions that are void and of no force and effect as to the Buyer and are not binding on the Buyer, its Affiliates, its successors and assigns.
(viii) Notwithstanding any provision in the Store Leases or the Assigned Subleases that purports to prohibit, restrict or condition such action, upon the Closing: (a) Buyer shall be authorized to use the applicable Store Properties subject to section 365 (b)(3) of the Bankruptcy Code, (b) Buyer shall be authorized to operate such Store Properties under the trade name “Kroger”, (c) Buyer shall be authorized to make such alterations and modifications to the interior and exterior of the applicable premises and the Store Properties (including after giving effect signage, together with appropriate changes to any changes existing tenant signage in the respective shopping center, including signage affixed to the building panels on all pylons, monuments, directional and other ground and off-premises signs where the Debtors/Sellers are presently represented) as are determined by the Buyer and as may be permitted pursuant to the Store Leases and the Assigned Subleases, (d) remain “market flexdark” provisions thereof); provided that Buyer shall not be entitled with respect to assert the failure such premises and Store Properties after such assumption and assignment of the condition set forth in this Section 10.02(e) if Store Leases and the failure Assigned Subleases until the date as is necessary to permit the Buyer to remodel, restock, re-fixture, change signage and or competition of the Debt Financing work described herein or such later date as may be reasonably required by the Buyer for restoration of such premises and Store Properties following any applicable Casualty/Condemnation Event and (e) exercise, utilize or take advantage of any renewal options and any other current or future rights, benefits, privileges and options granted or provided to be consummated has resulted solely from the failure of Debtors/Sellers in or under the Equity Financing Store Leases or the Assigned Subleases.
(ix) The Buyer is not obligated for any Liability owing to be consummated.Supervalu Inc. or under any contracts and agreements between the Sellers and Supervalu Inc., including but not limited to that certain Supply Agreement dated July 1, 2016 by and between Xxxxx Supermarkets Company, LLC and Supervalu Inc.
Appears in 1 contract
Samples: Asset Purchase Agreement
Conditions to Obligation of Buyer. The obligation of the 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:
(ia) Seller No Governmental Authority shall have performed in all material respects all issued any order, and there shall not be any Law, restraining the effective operation by the Buyer of its obligations hereunder required the business of the Company after the Closing Date and no Proceeding challenging this Agreement or the transactions contemplated hereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been instituted by any Person before any Governmental Authority and be performed by it on or prior to pending.
(b) The Buyer shall have received an opinion of the Wxxxxxx firm, APC, dated the Closing Date, to the effect specified in Sections 3.01, 3.02, 3.04 through 3.06 and 3.14 and with respect to such other matters as the Buyer may reasonably request.
(iic) The Company shall have received all of the representations Required Consents.
(d) The Sellers shall have paid all sales, use, transfer, stamp, documentary and warranties of Seller contained other similar Taxes and recording and filing fees incurred in connection with the transactions contemplated by this Agreement Agreement.
(disregarding all materiality e) Axxxxx Xxxxxxxx, Exxx Xxxxxxx and Material Adverse Effect qualificationsDxxxxx Xxxxx shall each have entered into an employment agreement with the Company (the “Employment Agreements”) and Dxxxxx Xxxxxxx shall be true when made and at and have entered into a consulting agreement with the Buyer (the “Consulting Agreement”), each dated as of the Closing Date, as if made at in a form acceptable to the Buyer.
(f) The Simi Group shall have entered into Technology Quit Claim and Release Agreement and a Technology Sourcing Agreement with the Company, each dated as of the Closing Date and each in a form acceptable to the Buyer (the “Simi Agreements”).
(g) The Company and the Sellers shall have terminated all Company Options pursuant to Section 2.09 and shall have delivered to the Buyer written evidence of such dateterminations satisfactory to the Buyer.
(h) Any and all outstanding Indebtedness from or to the Company to or from its employees, with only such exceptions as would notincluding without limitation, individually or in Indebtedness from Jxx Xxxx for the aggregatebenefit of the Company shall have been repaid to the Company, reasonably and evidence thereof satisfactory to the Buyer shall have been delivered to the Buyer and the Indebtedness from Axxxxx Xxxxxxxx to the Company shall have be expected assigned from the Company to have a Material Adverse Effect and the Sellers’ Representative.
(iiii) The Buyer shall have received a certificate signed by an officer copies of Seller to the foregoing effect;resignations described in Section 6.04.
(bj) all consents A Certificate of third parties required Good Standing for the Company, dated as of a recent date, issued by the agreements listed in Section 10.02(b) Secretary of State of the Disclosure Schedule State of California and Certificates of Good Standing for all other states in which the Company is qualified to do business shall have been obtained;delivered to the Buyer.
(ck) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business as now conducted A California Tax Certificate shall have been transferred delivered 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;Buyer.
(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
(el) The proceeds minute and record books of the Debt Financing Company 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 delivered to the “market flex” provisions thereof); provided that Buyer shall not be entitled to assert the failure Buyer.
(m) Each of the condition set forth Executive Sellers shall have executed and delivered to the Buyer a Non-Compete Agreement in this Section 10.02(e) if a form acceptable to the failure of Buyer (the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummated“Non-Compete Agreements”).
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction (satisfaction, or, to the extent permitted by Applicable Law, waiver by Buyer) , of each of the following further conditions:
(i) 8.1.1. No provision of any Applicable Law shall prohibit the consummation of the Closing.
8.1.2. The representations and warranties of the Company and the Seller Parties contained in Section 4 shall have performed be true and correct 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.
8.1.3. Seller Parties have obtained a Valid Certificate or Paying Agent holds a certificate or ruling issued by the ITA in form and substance reasonably acceptable to the Buyer, which is sufficient to enable to conclude that no withholding of Israeli Tax is required with respect to the payment of the Purchase Price to Paying Agent and specifically imposes the exclusive liability on the Paying Agent for any withholding obligation with respect to the Purchase Price (“Paying Agent Certificate”).
8.1.4. Each of the Company and the Seller Parties shall have performed and complied, in all material respects, with only such exceptions as would notall covenants, individually agreements, obligations and conditions contained in this Agreement that are required to be performed 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 complied with by the agreements listed in Section 10.02(b) of Company and/or 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 Seller Parties on or before the Closing Date.
8.1.5. All corporate, with only such exceptions governmental, regulatory and other approvals, consents and/or waivers necessary lawfully to effect the transfer of the Shares, or otherwise to consummate the transaction contemplated hereunder, to be obtained by the Company and the Seller Parties, including the approvals of the Board of Directors and the general meeting of the Company, all as would not reasonably be expected to have a Material Adverse Effect;
(d) Buyer provided in Exhibit 8.1.5 hereto, shall have received all documents it may reasonably request relating been obtained, and a copy thereof shall have been transferred to (i) the existence of Seller and its Subsidiaries (including the Purchased Subsidiaries) and (ii) the authority of Seller for this AgreementBuyer at Closing, all in each case in form and substance reasonably satisfactory to Buyer; and
(e) The proceeds of the Debt Financing , and no such consent, authorization or approval shall have been received revoked.
8.1.6. There shall not have been threatened, instituted or pending any lawsuit, litigation, claims, investigations or other proceedings by Buyer, or any third party which purports to prevent the transaction contemplated hereunder;
8.1.7. There shall be fully available to Buyer, have been no outstanding Lien on substantially any assets of the terms and conditions set forth in Company (other than the Debt Commitment Letter (including after giving effect to any changes pursuant Permitted Liens).
8.1.8. No Material Adverse Effect shall have occurred from the date hereof to the “market flex” provisions thereof); provided that Buyer Closing Date;
8.1.9. The Company shall not be entitled precluded from registering in its Share Registry the transfer of all the Shares held by the Seller to assert the failure Buyer in accordance with the Israeli Companies Law of 5759-1999 and its Organizational Documents.
8.1.10. The Company shall have taken care of the condition set forth items listed on Exhibit 8.1.10 hereto, 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 consummateda reasonable form and substance.
Appears in 1 contract
Samples: Share Purchase Agreement (Micronet Enertec Technologies, Inc.)
Conditions to Obligation of Buyer. The obligation obligations of Buyer to consummate consummate, or cause to be consummated, the Closing is Purchase and Sale are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Buyer) of the following further additional conditions, any one or more of which may be waived in writing by Buyer:
(ia) Seller shall have performed in all material respects all Each of its obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of Sellers and Seller Parent contained in this Agreement (other than the Seller Fundamental Representations and the representations and warranties contained in Section 2.19(a)), disregarding all qualifications contained herein relating to materiality and or Material Adverse Effect qualifications) Effect, shall be true when made and at and correct as of the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, with only such exceptions as would notexcept for any inaccuracy or omission that, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect has not had 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;. The representations and warranties of Sellers contained in Section 2.19(a) shall be true and correct as of the Closing Date, as if made anew at and as of that date. Each of the Seller Fundamental Representations shall be true and correct in all respects (subject to any materiality and similar qualifiers contained therein) as of the Closing Date, as if made anew at and as of that date, except with respect to Seller Fundamental Representations which speak as to an earlier date, which representations and warranties shall be so true and correct at and as of such date, except for changes after the date hereof which are expressly permitted by this Agreement.
(b) Each of the covenants of Sellers and Seller Parent to be performed or complied with at or prior to the Closing shall have been performed or complied with in all material respects.
(c) From the date of this Agreement there shall not have occurred and be continuing a Material Adverse Effect.
(d) Buyer Seller Parent shall have received delivered or caused to be delivered 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 closing deliveries set forth in the Debt Commitment Letter (including after giving effect to any changes pursuant to the “market flex” provisions thereofSection 1.04(b); 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.
Appears in 1 contract
Samples: Equity Purchase Agreement (Casella Waste Systems Inc)
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:
(a) (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 (without regard to any limitations as to materiality or Material Adverse Effect) 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 not in the aggregate, 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) All Indebtedness of the Disclosure Schedule Company and its Subsidiaries (other than Permitted Indebtedness) shall have been obtained;repaid by or on behalf of the Company and its Subsidiaries, and Seller shall have delivered to Buyer releases of all Liens against the assets of the Company and its Subsidiaries created under or pursuant to the Credit Agreement.
(c) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business as now conducted The Company shall have been transferred to Seller or otherwise obtained by Buyer on an Affiliate of Seller (other than the Company or before any of its Subsidiaries) the Closing DateRetained Assets, with only such exceptions as would not reasonably be expected to have a Material Adverse Effect;the Retained Employees and the Canyon Employees.
(d) Seller shall have delivered to Buyer (i) true and complete copies of any audited financial statements (which shall be accompanied by an unqualified report of the Audit Firm) and any unaudited financial statements, in each case that are required to be included under Item 2.01 of Form 8-K filed by Buyer or any of its Affiliates under the Exchange Act as a result of the consummation of the transactions contemplated hereby assuming such Form 8-K is filed on the first business day immediately following the Closing Date and (ii) any consents of the Audit Firm required under the Securities Act or the Exchange Act in connection with the filing of such Form 8-K.
(e) Buyer shall have received all documents it may reasonably request relating to (i) the existence of Seller Seller, the Company 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.
(ef) The proceeds Seller shall have delivered a certification to the effect that Seller is not a “foreign person” for purposes of Section 1445 of the Debt Financing shall have been received by Buyer, or shall be fully available to Buyer, on substantially Code and 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 consummatedTreasury Regulations thereunder.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to pay the Purchase Price and consummate the transactions to be performed by it in connection with 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 Sellers set forth in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) Section 5 above shall be true when made and correct at and as of the Closing Date;
(ii) there shall not be any injunction, as if made at and as judgment, order, decree, ruling or charge in effect preventing consummation of such date, with only such exceptions as would not, individually or in any of the aggregate, reasonably be expected to have a Material Adverse Effect and transactions contemplated by this Agreement;
(iii) Buyer Sellers shall have received a certificate signed delivered to Buyer all of Sellers' Closing Documents, duly executed by an officer of Seller to the foregoing effectSellers as applicable;
(biv) Sellers shall have obtained, or caused to be obtained, all material consents (including consents to assignment of third parties any assignable Governmental Permits and any consents required under any Acquired Contract) necessary to be obtained by any of them in order to consummate the agreements listed in Section 10.02(b) sale and transfer of the Disclosure Schedule shall have been obtained;
(c) all governmental licenses, authorizations, permits, consents and approvals required Acquired Assets pursuant 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, including, without limitation, the written consent of the lenders under the Toronto Dominion Credit Agreement, in accordance with terms of such Credit Agreement, to the consummation of the transactions contemplated hereby, and all such consents shall be in form full force and substance reasonably satisfactory to Buyereffect; and
(ev) The proceeds lenders under the Toronto Dominion Credit Agreement shall have consented to and approved in writing the terms of this Agreement, and Sellers shall have obtained, or caused to be obtained, written evidence satisfactory to Buyer of the Debt Financing shall have been received by Buyer, or shall be fully available to Buyer, on substantially release of all Liens encumbering 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 consummatedAcquired Assets.
Appears in 1 contract
Samples: Asset Purchase Agreement (Net2000 Communications Inc)
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 transactions to be performed by it on or prior to in connection with the Closing Date, is subject to satisfaction of the following conditions:
(iia) the representations and warranties of Seller contained set forth in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall Section 3 will be true when made and correct in all material respects 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) Seller and each Subsidiary will have performed and complied with all consents of third parties required by its covenants contained in this Agreement in all material respects through the agreements listed in Section 10.02(b) of the Disclosure Schedule shall have been obtainedClosing;
(c) Seller and each Subsidiary will have procured all governmental licensesof the necessary third party consents, authorizations and approvals listed in Section 7.1(c) of Seller’s Disclosure Schedule and all necessary 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 Effectof any Governmental Authority;
(d) Buyer no action, suit or proceeding shall have received all documents it may reasonably request relating to be pending or threatened before any Governmental Authority in which an unfavorable injunction, judgment, order, decree, ruling or charge would: (i) prevent consummation of any of the existence 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 Buyer to own the Acquired Assets or to operate the former business of Seller;
(e) Seller will have executed and delivered to Buyer a certificate to the effect that each of the conditions specified in this Section 7.1(a) to 7.1(d) is satisfied in all respects;
(f) there will not have occurred any Material Adverse Effect with respect to Seller;
(g) The Buyer will have received evidence of release on all Security Interests on the Acquired Assets;
(h) Seller will have delivered a certificate of incumbency, dated as of the Closing Date, as to the officers and other personnel of Seller executing this Agreement and any certificate, instrument or document to be delivered by Seller at the Closing;
(i) Seller will have delivered a certified copy of resolutions authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement;
(j) Seller each will have executed and delivered to Buyer a non-foreign affidavit as described in Section 1445(b)(2) of the Code and its regulations;
(k) Seller will have executed and delivered all documents or instruments reasonably necessary to transfer title of any Intellectual Property to Buyer;
(l) Seller will have delivered duly approved and executed articles of amendment to amend the articles of organization of Seller and its Subsidiaries any other documents necessary to change Seller’s name as of the Closing;
(including m) Seller will have delivered such other documents and instruments as are reasonably necessary or appropriate to effect the Purchased Subsidiariesconsummation of the contemplated transactions or that may be required under any Laws or any agreements to which Seller or any Subsidiary is a party;
(n) all actions to be taken by Seller and (ii) any Subsidiary in connection with consummation of the authority of Seller for this Agreementcontemplated transactions and all certificates, all opinions, instruments and other documents required to effect these transactions will be reasonably satisfactory in form and substance reasonably satisfactory to Buyer
(o) Xx. Xxxxx Xxxxxx will have entered into an Employment Agreement in form and substance as set forth in attached Exhibit D, (the “Employment Agreement”);
(p) Seller will have entered into the Stock Restriction Agreement in form and substance mutually agreeable to Seller and Buyer, (the “Restriction Agreement”)
(q) Seller shall have delivered the Seller’s Disclosure Schedule to Buyer on or before October 2, 2013 and such schedules must be acceptable to Buyer in Buyer’s sole discretion;
(r) Seller shall deliver Bills of Sale with a warranty of title covering product registrations of Affiliates of Seller that are not Subsidiaries; and
(es) The proceeds Seller will have delivered evidence satisfactory to Buyer of transfer of ownership of the Debt Financing shall have been received by Buyer, or shall be fully available Subsidiaries to Buyer, on substantially the terms and conditions set forth in the Debt Commitment Letter (including after giving effect to . Buyer may waive 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 specified in this Section 10.02(e) if 7.1 by providing a written waiver at or prior to the failure of the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummatedClosing.
Appears in 1 contract
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 transactions to be performed by it on or prior to in connection with the Closing Date, is subject to satisfaction of the following conditions:
(iia) All of the representations and warranties of Seller contained Sellers in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall be true when made and at and correct as of the Closing Date;
(b) Sellers shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(c) No action, as if made at and as suit, or proceeding shall be pending or threatened before any Governmental Authority wherein an unfavorable Governmental Order would (i) prevent consummation of such dateany of the transactions contemplated by this Agreement, with only such exceptions as would not(ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (iii) affect adversely the right of Buyer to own the Business, or (iv) affect adversely the right of Buyer to operate the Business (and no such Governmental Order shall be in effect);
(d) Company's secured debt shall be paid, without penalty;
(e) The Board of Directors of Buyer's parent company shall have approved the transactions contemplated herein;
(f) Sellers shall have executed and delivered the employment letters;
(g) Sellers shall have delivered any necessary consents to assignment of contracts from third parties and other consents identified as EXHIBIT F; and
(h) Buyer shall have received a certificate signed by from counsel to Seller 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 opinion in form and substance reasonably satisfactory acceptable to Buyer and its counsel, addressed to Buyer, and dated as of the Closing Date; and
(ei) The proceeds All actions to be taken by Sellers in connection with consummation of the Debt Financing shall have been received by Buyertransactions contemplated hereby and all certificates, or shall opinions, instruments, and other documents required to effect the transactions contemplated hereby will be fully available reasonably satisfactory in form and substance to Buyer, on substantially the terms and conditions set forth . Buyer may waive any condition specified in the Debt Commitment Letter (including after giving effect to any changes pursuant this SECTION 7.1 if it executes a writing so stating at or prior 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 consummatedClosing.
Appears in 1 contract
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 transactions to be performed by it on or prior to in connection with the Closing Date, (ii) is subject to satisfaction of the following conditions: the representations and warranties of Seller contained set forth in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) Section 3 above shall be true when made and correct at and as of the Closing Date; Seller shall have performed and complied with all of its covenants hereunder through the Closing; there shall not be any injunction, as if made at and as judgment, order, decree or ruling in effect preventing consummation of any of the transactions contemplated by this Agreement; nor shall there be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the transactions contemplated hereby which makes the consummation of such datetransactions illegal or that has had, with only such exceptions as would notor is reasonably likely to have, individually or in the aggregate, reasonably be expected to have a Seller Material Adverse Effect and Effect; Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.2(a) through (c) is satisfied in all respects; Seller shall have delivered or caused to be delivered to Buyer:
(i) the Trademark Assignment Agreement;
(ii) the Bill of Sale;
(iii) Buyer shall have received a certificate signed the Employment Agreements;
(iv) the Ixxxxtion Assignment Agreements;
(v) the Non-Compete and Confidentiality Agreements;
(vi) the Stockholder Pledge Agreement;
(vii) the Stock Option Agreements;
(viii) the Registration Rights Agreement; and
(ix) copies of written consents or minutes of meetings of the board of directors and the shareholders of Seller, certified by an officer of Seller to Seller, authorizing and approving the foregoing effect;
(b) all consents Seller's execution and delivery of, and the performance of third parties required by its obligations under, this Agreement and the agreements listed in Section 10.02(b) of Ancillary Documents, and 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 transactions contemplated hereunder (including the Purchased Subsidiaries) and (ii) sale of the authority of Seller for Emagipix Assets to Buyer under this Agreement); Simultaneously with the consummation of the transfer, Seller, through its officers, agents, and employees, will put Buyer into full possession and enjoyment of all the Emagipix Assets to be conveyed and transferred by this Agreement; and all actions to be taken by Seller in connection with consummation of the transactions contemplated hereby and all certificates, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory 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 . Buyer may waive 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 specified in this Section 10.02(e) 6.2 if it executes a writing so stating at or prior to the failure of the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummatedClosing.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate purchase the Closing Assets from Seller under this Agreement is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Buyer) of the following further conditions:conditions on or before the Closing Date (unless any condition is waived in writing by Buyer):
(ia) All representations and warranties of Seller contained in or made pursuant to this Agreement shall be true and correct as of the Closing Date;
(b) Seller shall have performed performed, observed and complied with all the obligations and conditions required by this Agreement, including, but not limited to, the execution and delivery of all documents listed in all material respects all paragraph 17;
(c) No order of its obligations hereunder required to any Court or administrative agency shall be performed in effect which restrains or prohibits the transactions contemplated in this Agreement, or which would affect or limit Buyer's ownership or control of the assets, and there shall not have been threatened or pending any proceeding before any Court, governmental agency, or other regulatory entity challenging any of the transactions contemplated by it on this Agreement;
(d) On or prior to the Closing Date, (ii) there shall have been no loss, damage or destruction to 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 Assets which materially impairs the value of the Closing DateAssets in any way, as if made at and as Seller shall not have suffered any material adverse change in its financial condition, results of such dateoperations, with only such exceptions as would notassets, individually liabilities, business or in the aggregate, reasonably be expected to have a Material Adverse Effect and prospects;
(iiie) Buyer shall have received a certificate signed by an officer completed its due diligence review of Seller Seller's business with the results being satisfactory to the foregoing effectBuyer in its sole discretion;
(bf) all consents of third parties required by the agreements listed in Section 10.02(b) of the Disclosure Schedule Seller shall have been obtaineddelivered title and other appropriate documents, including bills of sale and instruments of assignment sufficient to evidence and transfer to Buyer complete legal and equitable title in the Assets, free and clear of any and all security interests, pledges, liens, conditional sales agreements, claims, encumbrances or charges or restraints on transfer;
(cg) all governmental licensesBuyer shall be satisfied that each of the Key Employees will remain employed with TransTech and/or MIS following the Closing, authorizations, permits, consents which satisfaction shall be to Buyer's sole discretion and approvals required to carry on the Business as now conducted shall have been transferred to or otherwise obtained by may include Buyer on or before the Closing Date, requiring that each Key Employee execute an employment agreement with only such exceptions as would not reasonably be expected to have a Material Adverse Effect;TransTech and/or MIS; and
(dh) Buyer Seller shall have received all documents it may reasonably request relating to right, title and interest in an electromagnet patent, identified as Patent Number 5,410,289 (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 thereofElectromagnet Patent”); 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.
Appears in 1 contract
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:
(a) (i) the Company and Seller shall have performed in all material respects all of his or its obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of the Company and Seller contained in this Agreement (disregarding all materiality at the time of its execution and Material Adverse Effect qualifications) delivery and in the Disclosure Schedule and the Update, and in any certificate or other writing delivered by the Company or Seller pursuant hereto shall be true when made and correct in every material respect at and as of the Closing Date, 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 date and (iii) Buyer shall have received a certificate signed by an officer the President of the Company and by Seller to the foregoing effect;.
(b) all consents of third parties required No court, arbitrator or governmental body, agency or official shall have issued any order, and there shall not be any statute, rule or regulation, restraining the effective operation by the agreements listed in Section 10.02(b) Buyer of the Disclosure Schedule shall have been obtained;business of the Company after the Closing Date.
(c) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business as now conducted Buyer shall have been transferred to or otherwise obtained by Buyer on or before received an opinion of Seller's Counsel, dated the Closing Date, with only such exceptions as would not reasonably be expected acceptable to have a Material Adverse Effect;Buyer and its counsel.
(d) Seller shall have executed and delivered an Affiliate Agreement.
(e) The Company shall have received all consents, authorizations or approvals from the governmental agencies referred to in Section 3.03(a), in each case in form and substance reasonably satisfactory to Buyer, and no such consent, authorization or approval shall have been revoked.
(f) Buyer and the Company shall have each received an unqualified written opinion from their respective independent accountants, to the effect that such accountants concur that no condition exists that would preclude Buyer from accounting for the transaction contemplated by this agreement as a "pooling of interests" under applicable rules and regulations of the Commission.
(g) All stockholders of the Company shall have voted in favor of, or consented to in writing, the consummation of the transactions contemplated hereby.
(h) Buyer shall have received all other closing documents specified in Section 2.03 of this Agreement and all other closing documents that 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 Agreementrequest, all in form and substance reasonably satisfactory to Buyer; and.
(ei) The proceeds Company's Board of Directors will have passed and not rescinded resolutions satisfactory to Buyer's counsel effectively terminating the Company's 401(k) Plan immediately prior to the Closing.
(j) Buyer shall have received a written statement confirming the total amount(s) distributed to Seller with respect to their Shares during the Stub Period through the Closing Date, which amount shall not exceed the S Corporation Tax Liability, determined to the Knowledge of Seller. Such written statement shall also set forth the basis for the determination of the Debt Financing S Corporation Tax Liability.
(k) The Company shall have been either (i) delivered to Buyer a properly executed statement satisfying the requirements of Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) in a form reasonably acceptable to Buyer or (ii) caused each of the Stockholders to have executed and delivered to Buyer certificates of non-foreign status satisfying the requirements of Treasury Regulations Section 1.1445-2(b).
(l) Simultaneously with the Closing, Buyer shall have purchased all of the outstanding shares of Herco Technology Corp.
(m) Buyer shall have received by Buyerfrom the Company and Seller the Update, and any material additions or shall be fully available changes to Buyer, on substantially the terms and conditions Disclosure Schedules set forth in the Debt Commitment Letter (including after giving effect Update shall be in form and substance acceptable 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 consummatedits sole discretion.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Teradyne Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to shall be conditioned upon the satisfaction or waiver (or, to the extent permitted by Applicable Law, waiver by Buyerin whole or in part) of each of the following further conditionsconditions concurrently with or prior to Closing:
(ia) Seller All issued and outstanding shares of Preferred Stock shall have been converted into shares of Common Stock;
(b) Any and all stockholders agreements shall have been terminated;
(c) Any and all employment agreements between the Company and the employees of the Company shall have been terminated;
(d) The Company and the Shareholders shall have performed in all material respects and complied with all of its their obligations hereunder required to be performed or complied with by it them on or prior to the Closing Date, (ii) and the representations and warranties of Seller the Company and the Shareholders contained in this Agreement (disregarding all materiality agreement and Material Adverse Effect qualifications) in any certificate or other writing delivered by the Company pursuant hereto, shall be true when made and at and correct as of the Closing Date;
(e) Buyer shall have received the Shapxxx, as if made at Xxxxxx & Xeinxx, X.C. Opinion;
(f) All requisite approvals from governmental agencies and as consents from third parties listed or required to be listed on Schedule 3.03 shall have been obtained;
(g) The Company shall have title to the Software free and clear of any Liens or other restrictions;
(h) Buyer shall have received the Officer's Certificate;
(i) Buyer shall have received a copy of the Employment Agreements, duly and validly executed by such date, with only such exceptions as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and employees designated by Buyer;
(iiij) Buyer shall have received a certificate signed of good standing and a copy of the Company's Certificate of Incorporation, each certified by an officer the Secretary of Seller to State of the foregoing effectState of Delaware, as of a date within five (5) business days preceding the Closing Date;
(bk) all consents of third parties required by the agreements listed in Section 10.02(b) All of the Disclosure Schedule Purchased Options shall have been obtainedfully vested and exercised and all shares of Common Stock required to be issued pursuant to such exercise shall have been validly and duly issued, fully paid and non-assessable shares;
(c1) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business as now conducted The Cancelled Options shall have been transferred cancelled and no longer represent a right 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 Effectacquire shares of Common Stock;
(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.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing Transactions is subject to the satisfaction (or, at or prior to the extent permitted by Applicable Law, waiver by Buyer) Closing Date of the following further conditions:
(i) Seller shall have performed Target has given all notices, made all filings and obtained all authorizations, consents, and approvals listed in Section 5(d) of the Target Disclosure Schedule;
(ii) Target has given all material respects notices, made all filings and obtained all authorizations, consents, and approvals that relate to the regulation of its obligations hereunder alcoholic beverages and are required to be performed given by it on Target to, made by Target with or prior obtained by Target from any Governmental Authority in order for the Parties to consummate the Closing Date, Transactions;
(iiiii) the representations and warranties set forth in Section 5 above are true and correct in all material respects at and as of Seller contained in the date of this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall be true when made and at and as of the Closing Date, Date as if made thereon, except to the extent such representations and warranties are expressly made only as of an earlier date, in which case as of such earlier date; provided, however, that representations and warranties in Section 5 above that contain an express materiality qualification shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing Date as if made thereon (other than for failures to be true and correct that are de minimis in effect);
(iv) Target has performed and complied in all material respects with its covenants and obligations under this Agreement;
(v) less than 5% of the outstanding Target Shares are Dissenting Shares;
(vi) the Merger and this Agreement have been duly approved by Target's Board of Directors, which approval remains in full force and effect as of the Closing Date, the Merger and this Agreement has received the Requisite Shareholder Approval, and Target has provided Buyer with certified copies of resolutions of Target's Board of Directors and Shareholders authorizing the execution and delivery of this Agreement and consummation of the Transactions;
(vii) no statute, rule or regulation has been enacted or promulgated and no action, suit, or proceeding is pending or threatened before any court or quasi judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, stipulation, ruling, or charge would: (A) prevent consummation of any of the Transactions; (B) cause any of the Transactions to be rescinded following consummation; or (C) affect adversely the right of Buyer to own its assets and to operate its businesses (and no such dateinjunction, with only such exceptions judgment, order, decree, stipulation, ruling, or charge shall be in effect);
(viii) Target has delivered to Buyer a certificate executed by Target's Chief Executive Officer and Secretary on behalf of Target to the effect that each of the conditions specified in Sections 8(a)(i)-(vii) above is satisfied in all respects;
(ix) the Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued and not withdrawn and no proceedings for that purpose are threatened by the SEC or initiated by the SEC and not withdrawn;
(x) the issuance of shares of Buyer Common Stock as would not, individually or provided in this Agreement has been duly approved by the affirmative vote of a majority of the outstanding shares of Buyer Common Stock entitled to vote;
(xi) the shares of Buyer Common Stock to be issued in the aggregateMerger have been approved for listing on The Nasdaq Stock Market, reasonably effective upon notice of issuance.
(xii) Buyer has received confirmation that the Title Policies will be expected issued;
(xiii) the Employment Agreements have been duly executed and delivered by the parties thereto other than Buyer;
(xiv) the Non-Competition and Non-Solicitation Agreements have been duly executed and delivered by Xxxx Xxxxxx and Xxxxxx Xxxxxx;
(xv) the Shareholder Lock-Up Agreements have been duly executed and delivered by Xxxx Xxxxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx, and Xxxxxxx Xxxxx-Xxxx;
(xvi) A-B has provided evidence satisfactory to Buyer of its waiver of its rights under the Master Distributor Agreement between A-B and Target dated June 6, 2006, and the Master Distributor Agreement between A-B and Target dated July 1, 2004, to terminate such agreements as a result of consummation of the Transactions;
(xvii) Target has entered into long-term leases for the parcels described in Schedule 5(p) (II)(2), (3) and (6);
(xviii) Target has provided evidence satisfactory to Buyer that Goose Holdings, Inc., and Xxxxxx Street Brewery LLC, have each consented to the Merger and have agreed to enter into an amendment to the Amended and Restated Operating Agreement of Xxxxxx Street Brewery LLC after the Closing Date in a Material Adverse Effect form satisfactory to Buyer;
(xix) Buyer has received from counsel for Target an opinion dated the Closing Date and addressed to Buyer in the form of Exhibit D hereto; and
(xx) Target has delivered to Buyer: (i) a certificate of existence of Target issued by the Oregon Secretary of State dated within five days of the Closing Date; (ii) a certified copy of Target's Articles of Incorporation and Bylaws as in effect on the Closing Date; 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 certification in accordance with Treasury Regulation Section 10.02(b) of the Disclosure Schedule shall have been obtained;
(c) all governmental licenses1.1445-2(c), 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
, certifying that an interest in Target is not a United States real property interest because Target is not and has not been a United States real property holding corporation (eas defined in Section 897(c)(2) The proceeds of the Debt Financing shall have been received Code) during the five-year period ending with the Closing Date. All actions to be taken by BuyerTarget in connection with consummation of the Transactions and all certificates, or shall opinions, instruments, and other documents required to effect the Transactions will be fully available reasonably satisfactory in form and substance to Buyer, on substantially the terms and conditions set forth in the Debt Commitment Letter (including after giving effect to . Buyer may waive 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 specified in this Section 10.02(e8(a) if it executes a writing so stating at or prior to the failure of the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummatedClosing.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated by this Agreement is subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by BuyerBuyer in its sole discretion) of the following further conditions:
(ia) 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 The representations and warranties of Seller contained set forth in this Agreement (disregarding all i) that are qualified as to materiality and or Material Adverse Effect qualifications) shall be true when and correct in all respects and (ii) that are not so qualified shall be true and correct in all material respects, in each case as of the date hereof and as of the Closing Date as if made and at and as of the Closing Date, as if made at except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date.
(b) Seller shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Seller at or prior to the Closing.
(c) Seller shall execute and deliver to Buyer a certificate (the “Seller Closing Certificate”) of an authorized officer of Seller, with only such exceptions dated as would notof the Closing Date, individually or stating that the conditions specified in the aggregate, reasonably be expected to Sections 8.2(a) and (b) of this Agreement have a been satisfied.
(d) There shall have been no Material Adverse Effect on the Purchased Assets or the Business.
(e) Seller shall have delivered to Buyer all agreements and other documents required to be delivered by Seller to Buyer pursuant to Section 3.2 of this Agreement.
(iiif) 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 evidence in form and substance reasonably satisfactory to Buyer; andBuyer that all Liens other than Permitted Liens with respect to the Purchased Assets have been released.
(eg) The proceeds Seller shall have taken such actions as are reasonably necessary to cause Business Employees and their covered dependents to cease participation in all Seller Benefit Plans covering Business Employees in the United States, except with respect to available continuation or conversion coverage pursuant to applicable law and the terms of such Benefit Plans.
(h) At or prior to Closing, Buyer shall have received a comfort letter, substantially in the form of Exhibit J hereto, executed by TECO-Westinghouse Motor Company, Inc.
(i) At or prior to Closing, Seller shall have paid in full all of the Debt Financing amounts due under that certain lawsuit filed by Round Rock ISD & City of Round Rock on March 26, 2009.
(j) At or prior to Closing, Buyer shall have been received by Buyer, or shall be fully available evidence reasonably acceptable 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 Buyer that Buyer shall not be entitled to assert the failure XxXxxx Energy Development Company LLC owns more than 50% of the condition set forth in this Section 10.02(eCapital Stock of XxXxxx SW1 Wind Farms, LLC, which such evidence may include (x) if the failure an opinion of outside legal counsel confirming such ownership or (y) a resolution of the Debt Financing to be consummated has resulted solely from the failure management committee of the Equity Financing to be consummatedXxXxxx SW1 Wind Farms, LLC confirming such ownership.
Appears in 1 contract
Samples: Asset Purchase Agreement (Composite Technology Corp)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing Acquisition is subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by BuyerBuyer in its sole discretion) of the following further conditions:
(ia) 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 The representations and warranties of each Seller contained set forth in this Agreement (disregarding all materiality shall have been true and Material Adverse Effect qualifications) correct at and as of the date hereof and shall be true when and correct at and as of the Closing Date as if made and at and as of the Closing Date, as if made at except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier 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 dated the Closing Date signed by an officer of each Seller to the foregoing such effect;.
(b) Each Seller shall have performed or complied with all consents of third parties obligations and covenants required by this Agreement to be performed or complied by such Seller with at or prior to the agreements listed Closing Date, including without limitation the obligations and covenants set forth in Section 10.02(b) of the Disclosure Schedule Sections 5.3 and 5.5. Buyer shall have been obtained;received a certificate dated the Closing Date signed by each Seller to such effect.
(c) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business as now conducted There shall have been transferred to no material adverse change in the condition (financial or otherwise obtained by Buyer on otherwise), operations, prospects or before results of operations of the Closing Date, with only such exceptions Acquired Companies taken as would not reasonably be expected to have a Material Adverse Effect;whole.
(d) Buyer No Action shall have received all documents it may reasonably request relating to be pending or threatened before any court or other Governmental Entity (i) seeking to prevent consummation of any of the existence of Seller and its Subsidiaries (including the Purchased Subsidiaries) and transactions contemplated by this Agreement, (ii) seeking to impose any material limitation on the authority right of Seller for this AgreementBuyer or its Affiliates (including Universal Gold Mining Corp.) to own the Management Shares and to control the Acquired Companies or (iii) seeking to restrain or prohibit Buyer’s ownership or operation (or that of its Subsidiaries or Affiliates (including Universal Gold Mining Corp.)) of all or any material portion of the business or assets of the Acquired Companies, taken as a whole, or compel Buyer or any of its Subsidiaries or Affiliates (including Universal Gold Mining Corp.) to dispose of or hold separate all or any material portion of the business or assets of the Acquired Companies, taken as a whole, or of Buyer and its Subsidiaries, taken as a whole. No such Order shall be in effect.
(e) No Law shall have been enacted or shall be deemed applicable to the Acquisition which has any of the effects set forth in clauses (i) through (iii) in Section 7.2(d).
(f) Sellers shall have obtained the Consent of each Person whose Consent is required under the Contracts set forth in Schedule 3.6(a) and shall have provided evidence of each such Consent in form and substance reasonably satisfactory to Buyer; and.
(eg) The proceeds Buyer shall have obtained financing sufficient to fund the Purchase Price for the acquisition 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 consummatedManagement Shares contemplated hereunder.
Appears in 1 contract
Samples: Share Purchase Agreement (Universal Gold Mining Corp.)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated hereby is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Buyer) of each of the following further conditions:
(i) Seller and Stockholder shall each have performed and satisfied in all material respects all each of its their material obligations hereunder required to be performed and satisfied by it any of them on or prior to the Closing Date, (ii) each of the representations and warranties of Seller and Stockholder contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall be true when made and correct in all material respects, and shall not contain any misstatement or omission that would make any such representation or warranty materially misleading, at and as of the Closing Date, Date with the same force and effect as if made at and as of such datethe Closing 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 certificates signed by an Stockholder and a duly authorized executive officer of Seller to the foregoing effect;effect and to the effect that the conditions specified in this Section 8.01 have been satisfied.
(b) all All Required Approvals and Consents (including such consents of third parties as are required by the agreements listed in Section 10.02(bunder Subsequent Material Contracts) of the Disclosure Schedule shall have been obtained;obtained without the imposition of any conditions that are or would become applicable to the OEM Business, the Transferred Assets, Buyer or any of its Affiliates after the Closing that Buyer in good faith reasonably determines would be materially burdensome upon the OEM Business, the Transferred Assets, Buyer or any of its Affiliates or their respective businesses substantially as such businesses have been conducted prior to the Closing Date. All such Required Approvals and Consents shall be in effect; no Proceedings or other action shall have been instituted or threatened by any Person with respect thereto as to which, in Buyer's good faith opinion, there is a material risk of termination or revocation of, or material adverse (as to the OEM Business, the Transferred Assets or Buyer) modification of, any such Required Approval or Consent; all applicable waiting periods with respect to such Required Approvals and Consents shall have expired; and all conditions and requirements prescribed by Applicable Law or by such Required Approvals and Consents to be satisfied on or prior to the Closing Date shall have been satisfied to the extent necessary such that all such Required Approvals and Consents are, and will remain, in full force and effect assuming continued compliance with the terms thereof after the Closing.
(c) all governmental licensesThe consummation of the transactions contemplated by this Agreement shall not violate any Applicable Law. No temporary restraining order, authorizationspreliminary or permanent injunction, permitscease and desist order or other order issued by any court of competent jurisdiction or any competent Governmental Authority or any other legal restraint or prohibition preventing the consummation of the transactions contemplated hereby, consents or imposing Damages on Buyer in respect thereto, shall be in effect, and approvals required there shall be no pending or threatened actions or proceedings by any Governmental Authority (or determinations by any Governmental Authority) or by any other Person (i) challenging or in any manner seeking to carry on restrict or prohibit the Business consummation of the transactions contemplated hereby, or to impose conditions that Buyer in good faith determines would be materially burdensome upon the OEM Business, the Transferred Assets, Buyer or any of its Affiliates or their respective businesses substantially as now conducted shall such businesses have been transferred conducted prior to the Closing Date or otherwise obtained by Buyer on or before as such businesses, as of the date hereof, would be reasonably expected to be conducted after the Closing Date.
(d) Since the date hereof, with only such exceptions as would there shall not have been any event, occurrence, development or state of circumstances or facts (including any damage, destruction or other casualty loss, but excluding any event, occurrence, development or state of circumstances or facts or change resulting from changes in general economic conditions) affecting the Company or the OEM Business that has had or that may be reasonably be expected to have have, either alone or together with all such events, occurrences, developments, states of circumstances or facts or changes, a Material Adverse Effect;.
(de) Seller, as lessor, shall have executed and delivered to Buyer the real property leases called for by Section 7.06.
(f) Seller, Stockholder and each of the Principals shall have executed and delivered to Buyer the Assistance, Noncompetition and Guaranty Agreement called for by Section 7.07.
(g) Buyer shall have received all documents it may an opinion of McAfee & Xxxx in a form reasonably request relating acceptable to Buyer.
(h) As of the Closing Date, there shall exist no Liens on any Transferred Assets.
(i) Seller shall have executed and delivered a xxxx of sale and such other documents of assignment, transfer and conveyance (including duly endorsed share certificates representing the existence outstanding shares of the U.K. Subsidiaries and Seller's interest in the Mexican Joint Venture) as Buyer shall reasonably request to transfer to Buyer all right, title and interest of Seller in and its Subsidiaries (including to the Purchased Subsidiaries) and (ii) the authority of Seller for this Agreement, all in form and substance reasonably satisfactory to Buyer; andTransferred Assets.
(ej) The proceeds Buyer shall have received financing on terms reasonably acceptable to Buyer and in an amount sufficient to pay the Purchase Price and Buyer's expenses related to the negotiation of this Agreement and the consummation of the Debt Financing transactions contemplated hereby.
(k) Buyer shall have been received the financial statements called for by BuyerSection 5.10.
(l) Buyer shall have satisfied itself, or in its reasonable judgment, that both Ford Motor Company and General Motors Corporation are willing to purchase remanufactured transmissions and related components from Buyer after the Closing on terms and in quantities at least comparable to those on and in which they purchased such items from Seller prior to the Closing, PROVIDED that this condition shall be fully available deemed to Buyerhave been satisfied as of and following February 24, on 1998 unless prior to such date Buyer has notified Seller in writing that this condition will not be satisfied.
(m) each of Xxx Xxxxxxxx, Xxxxx Xxxxx, Xxx Xxxxxx and Xxxx Xxxxxxx shall have executed and delivered to Buyer an employment agreement in substantially the terms form of EXHIBIT E hereto with such additions thereto as Buyer 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 consummatedrespective employee may agree upon.
Appears in 1 contract
Samples: Asset Purchase Agreement (Aftermarket Technology Corp)
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:
(iA) 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, Date and (iiB) the representations and warranties of Seller contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) in any certificate or other writing delivered by Seller pursuant hereto shall be true when made and in all material respects at and as of the Closing Date, as if made at and as of such date, with only such exceptions except for those representations and warranties made as would notof a specified date, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (iiiC) Buyer shall have received a certificate signed by an executive officer of Seller to the foregoing effect;.
(bii) all consents Buyer shall have received an opinion of third parties required Rxxxxx Xxxxx, Esq., General Counsel of Seller, and an opinion of Dxxxx Xxxx & Wxxxxxxx, counsel to Seller, dated the Closing Date in the forms attached as Exhibits I and III hereto. In rendering such opinions, such counsel may rely: (x) upon certificates of public officers, (y) as to matters governed by the agreements listed in Section 10.02(b) laws of jurisdictions other than New York and the corporate laws of Delaware or the federal laws of the Disclosure Schedule United States of America, upon the opinions of Sxxxxxx & Fxxxxx, P.C. (as to the laws of New Jersey), Fxxxxxxxx Xxxxxx, General Counsel to the Company (as to the laws of New Hampshire), and any other counsel reasonably satisfactory to Buyer and (z) as to matters of fact, upon certificates of officers of Seller, the Company or any Subsidiary, copies of which opinions and certificates shall be contemporaneously delivered to Buyer.
(iii) The Company shall have been obtained;obtained the consents required under Item 1 of Schedule 3.4 or new Investment Contracts, substantially in the form of CIAC's existing Investment contracts, with each Investment Company to which CIAC currently provides investment advisory or management services.
(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;
(div) Buyer shall have received all documents it may reasonably request relating to (i) the existence of Seller Seller, the Company and its Subsidiaries (including the Purchased Subsidiaries) Subsidiary 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.
Appears in 1 contract
Conditions to Obligation of Buyer. The Bxxxx’s obligation of Buyer to consummate the transactions contemplated by this Agreement and to take the other actions required to be taken by Buyer at Closing is subject to the satisfaction (orsatisfaction, to the extent permitted by Applicable Lawat or before Closing, waiver by Buyer) of each of the following further conditions:conditions (any of which may be waived by Buyer in its sole discretion, in whole or in part):
(i) Seller shall The representations and warranties set forth in Article 2 and Article 3 (other than the Fundamental Representations), individually and collectively, must have performed in all material respects all been true and correct as of its obligations hereunder required to the date of this Agreement and must be performed by it true and correct as of the Closing Date as if made again on or prior to the Closing Date, in each case, in all material respects, except for any representation or warranty made as of a specific date or for a particular period, which must be true and correct as of such specific date or for such particular period; and (ii) the representations Fundamental Representations set forth in Article 2 and warranties Article 3 must have been true and correct in all respects as of Seller contained in the date of this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall must be true when made and at and correct in all respects as of the Closing Date, Date as if made at and as of such date, with only such exceptions as would not, individually or in again on 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 effectClosing Date;
(b) Sellers must have performed and complied in all consents of third parties material respects with their covenants and obligations under this Agreement required to be performed or complied with by the agreements listed in Section 10.02(b) of the Disclosure Schedule shall have been obtainedthem prior to Closing;
(c) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business as now conducted No Company Material Adverse Effect 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 Effectoccurred;
(d) Sellers must have delivered to Buyer, in substantially the form attached hereto as Exhibit 6.1(d), a certificate dated as of the Closing Date certifying that the conditions set forth in Section 6.1(a), Section 6.1(b), and Section 6.1(c) have been satisfied;
(e) There must not be any final, non-appealable Order outstanding or Law enacted since the date of this Agreement prohibiting the consummation of the transactions contemplated by this Agreement;
(f) No Proceeding shall be pending or threatened against Buyer, its Affiliates, the Business or the Company that seeks to or that, in Buyer’s good faith determination, would or would be reasonably likely to: (A) impair, restrain, prevent or inhibit the ability of Buyer shall have received all documents it may reasonably request relating to operate the Business or to own, operate or use the Assets (iincluding, without limitation, through the imposition of an Encumbrance on the Interests or Assets); or (B) result in the existence restraint, prohibition or the obtaining of Seller and its Subsidiaries (including an injunction, award or judgment for Adverse Consequences or other relief against Buyer, any other Buyer Indemnified Party, the Purchased Subsidiaries) and (ii) Company or the authority of Seller for Business in connection with this Agreement, any other Transaction Document or the consummation of the transactions contemplated hereby or thereby.
(g) Any filings, notices, consents, authorizations and/or approvals set forth on Exhibit 6.1(g) or that are otherwise necessary to all the continued operation by Buyer of the Business following the Closing or to consummate the transactions contemplated by this Agreement or the other Transaction Documents without resulting in form a breach of or default under any Material Contract or Governmental Authorization or the violation of any Law (collectively, the “Required Consents”) must have been received in form, scope and substance reasonably satisfactory to BuyerBuyer and remain in full force and effect.
(h) Subject to Closing, the Employment Agreements must be in full force and effect and the individuals party thereto must not have ceased employment with the or revoked or repudiated their obligations under the Employment Agreements; 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.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated hereby is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Buyer) of each of the following further conditions:
(i) Seller shall have performed and satisfied in all material respects all each of its material obligations hereunder required to be performed and satisfied by it on or prior to the Closing Date, (ii) each of the representations and warranties of Seller contained in this Agreement (disregarding shall have been true and correct in all materiality material respects when made and Material Adverse Effect qualifications) shall contain no misstatement or omission that would make any such representation or warranty materially misleading when made and shall be true when made and correct in all material respects, and shall not contain any misstatement or omission that would make any such representation or warranty materially misleading, at and as of the Closing Date, Date with the same force and effect 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 Closing Date and (iii) Buyer shall have received a certificate certificates signed by an a duly authorized executive officer of Seller to the foregoing effect;effect and to the effect that to the Knowledge of such officer the conditions specified within this Section 8.01 have been satisfied.
(b) all consents of third parties required All material Required Governmental Approvals for the transactions contemplated by the agreements listed in Section 10.02(b) of the Disclosure Schedule this Agreement shall have been obtained;obtained without the imposition of any conditions that are or would become applicable to the Business, the Transferred Assets or Buyer (or any of its Affiliates) after the Closing that Buyer in good faith reasonably determines would be materially burdensome upon the Business, the Transferred Assets or Buyer (or any of its Affiliates) or their respective businesses substantially as such businesses have been conducted prior to the Closing Date or as said businesses, as of the date hereof, would be reasonably expected to be conducted after the Closing Date. All such Required Governmental Approvals shall be in effect, and no Proceedings shall have been instituted or threatened by any Governmental Authority with respect thereto as to which, in Buyer's good faith opinion, there is a material risk of a determination that would terminate the effectiveness of, or otherwise materially and adversely modify the terms of, any such Required Governmental Approval; all applicable waiting periods with respect to such Required Governmental Approvals shall have expired; and all conditions and requirements prescribed by Applicable Law or by such Required Governmental Approvals to be satisfied on or prior to the Closing Date shall have been satisfied to the extent necessary such that all such Required Governmental Approvals are, and will remain, in full force and effect assuming continued compliance with the terms thereof after the Closing.
(c) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business as now conducted All material Required Contractual Consents shall have been transferred obtained without the imposition of any conditions that are or would become applicable to the Business, the Transferred Assets, Buyer or otherwise obtained by any of its Affiliates after the Closing that Buyer on in good faith determines would be materially burdensome upon the Business, the Transferred Assets, Buyer or before any of its Affiliates or their respective businesses substantially as such businesses have been conducted prior to the Closing Date or as said businesses, as of the date hereof, would be reasonably expected to be conducted after the Closing Date. All such Required Contractual Consents (and with respect to the Subsequent Material Contracts, such other consents as may be required) shall be in effect. All conditions and requirements prescribed by any Required Contractual Consent (or any such other consent) to be satisfied on or prior to the Closing Date shall have been satisfied to the extent necessary such that all such Required Contractual Consents (and all such other consents) are effective and enforceable, and will remain effective and enforceable against the Persons giving such Required Contractual Consents (and such other consents) assuming continued compliance with only the terms thereof.
(d) The transactions contemplated by this Agreement and the consummation of the Closing shall not violate any material Applicable Law. No temporary restraining order, preliminary or permanent injunction, cease and desist order or other order issued by any court of competent jurisdiction or any competent Governmental Authority or any other legal restraint or prohibition preventing the transfer and exchange contemplated hereby or the consummation of the Closing, or imposing Damages in respect thereto, shall be in effect, and there shall be no pending or threatened actions or proceedings by any Governmental Authority (or determinations by any Governmental Authority) or by any other Person (i) challenging or in any manner seeking to restrict or prohibit the transfer and exchange contemplated hereby or the consummation of the Closing, or to impose conditions that Buyer in good faith determines would be materially burdensome upon the Business, the Transferred Assets, Buyer or any of its Affiliates or their respective businesses substantially as such exceptions businesses have been conducted prior to the Closing Date or as said businesses, as of the date hereof, would not be reasonably be expected to be conducted after the Closing Date.
(e) Since the date hereof, there shall not have been any event, occurrence, development or state of circumstances or facts or change in the Transferred Assets or the Business (including any damage, destruction or other casualty loss, but excluding any event, occurrence, development or state of circumstances or facts or change resulting from changes in general economic conditions) affecting the Business or any Transferred Asset that has had or that may be reasonably expected to have, either alone or together with all such events, occurrences, developments, states of circumstances or facts or changes, a Material Adverse Effect;.
(df) Buyer Seller shall have received all documents it may reasonably request relating executed and delivered to (i) the existence of Seller Buyer a Sales 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 Supply Agreement 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.form attached hereto as Exhibit B.
Appears in 1 contract
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 (or, to the extent permitted by Applicable Law, waiver by Buyer) of the following further conditions:
(i) the representations and warranties set forth in ss.3 above shall be true and correct in all material respects at and as of the Closing Date;
(ii) Seller shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(iii) Seller shall have procured all of its obligations hereunder required the third party consents specified in ss.5(b) above;
(iv) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in ss.6(a)(i)-(iii) is satisfied in all respects;
(v) no action, suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would or could (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be performed rescinded following consummation or (C) affect adversely the right of Buyer to own the Acquired Assets or to operate the CR business;
(vi) Seller shall have obtained the Approval Order in form and substance reasonably satisfactory to Buyer and no stay has been granted pending any appeal of the Approval Order. Without limiting the foregoing, the Approval Order shall specifically provide that:
(A) the Parties have acted in good faith in the negotiation and consummation of this Agreement;
(B) the Seller is authorized and directed to execute, deliver, perform under, consummate and implement, this Agreement, together with all additional instruments and documents that may be reasonably necessary or desirable to implement the foregoing;
(C) the Acquired Assets shall be sold and transferred to Buyer and when so sold and transferred shall be free and clear of all claims, interests, liens or Security Interests such that Buyer shall not incur any liability as a successor in interest to Seller or a successor to the CR business, and, that with respect to Leases or contracts which are assumed by it Seller and transferred to Buyer, Buyer shall be obligated under the terms and conditions of such Leases or contracts only by reason of the occupancy by Buyer of Real Property or the use by Buyer of personal property or services after the Closing;
(D) each and every holder of any claim or liability other than the Assumed Liabilities is permanently enjoined from commencing, continuing or otherwise pursuing or enforcing any remedy, claim or cause of action against Buyer relative to such claim or liability;
(E) Buyer and Seller, jointly, shall reasonably estimate the tax claims that could be asserted in connection with the transfer of the Acquired Assets to Buyer under any applicable state or local law imposing a stamp, transfer, sales or use tax, or similar tax (the "Section 1146(c) Taxes) and Seller and Buyer shall each contribute 50% of the amount of such estimated Section 1146(c) Taxes to a neutral commercial escrow pending entry of an order confirming a plan of reorganization in the Bankruptcy Proceedings, at which time the transfer of the Acquired Assets shall not be subject to taxation under any state or local law imposing any such tax in accordance with Sections 1146(b) and 105(a) of the Bankruptcy Code and the escrowed funds shall be released back to the Buyer and Seller. Interest earned on such escrowed funds in excess of the fees of such escrow holder shall be divided equally between Buyer and Seller. In the event of a subsequent assertion of liability for any such Section 1146(c) Taxes, against Buyer or Seller, the Party receiving notice of such assertion shall promptly notify the other of such assertion. Buyer and Seller shall cooperate with each other to defend against such assertion and any amount thereof determined to be due, together with all costs of defense (including reasonable attorneys and accountants fees and costs) shall be borne equally by Buyer and Seller.
(vii) Seller and each of Xxxx Xxxxx, Xxxx Xxxxx and Xxxxx Xxxxxxxxxx shall have entered into releases of each of their employment agreements with Seller and shall have entered into Employment Agreements with Buyer in form and substance as set forth in Exhibits G-1 through G-3 attached hereto and the same shall be effective at the Closing.
(viii) Seller shall have terminated its employment of all Transferring Employees and shall have paid to such Transferring Employees all sums owed with respect to salaries, commissions, vacation, sick pay or paid time off accruals, deferred compensation and all other amounts owing to such Transferring Employees.
(ix) Seller shall have assumed and assigned to Buyer as of the Closing Date, pursuant to Section 365 of the Bankruptcy Code, all of Assumed Contracts. 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 cured all defaults under the Assumed Contracts to the foregoing effect;
(b) all consents of third parties extent required by the agreements listed in under Section 10.02(b365(b) of the Disclosure Schedule Bankruptcy Code and this Agreement.
(x) Seller shall have been obtained;
(c) all governmental licensesdelivered an instrument of quitclaim to, 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 transfer in form and substance reasonably satisfactory to Buyer; andBuyer delivering and surrendering to Buyer possession of all tangible personal property included in the Acquired Assets, with respect to which Buyer has not agreed to assume a lease or other contract governing such tangible personal property, together with Seller's written consent allowing the lessor, vendor or other party such lease or contract, and Buyer to enter into new leases or other contracts.
(exi) The proceeds of the Debt Financing Seller's Stockholder shall have been received by Buyer, or shall be fully available to Buyer, on substantially executed the terms Noncompetition Agreement and conditions set forth Guaranty in the Debt Commitment Letter (including after giving effect to form of Exhibit K. Buyer may waive any changes pursuant condition specified in this ss.6(a) if it executes a writing so stating at or prior 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 consummatedClosing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Lason Inc)
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated by this Agreement is also subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Buyer) of the following further conditions, any one or more of which may be waived by Buyer:
(ia) Seller Sellers shall have performed in all material respects all of its their material obligations and agreements hereunder required to be performed by it them on or prior to the Closing Date, Closing;
(iib) the representations and warranties of Seller Sellers contained in this Agreement (disregarding all materiality Article III and Material Adverse Effect qualifications) Section 6.01 other than those representations and warranties of Sellers contained in Article III and Section 6.01 to the extent that such representations and warranties relate to the U.K. Affiliate, shall be true when made and correct in all material respects at and as of the Closing Date, Date as if made at and as of the Closing Date (other than such representations and warranties that by their terms address matters only as of another specified date, which shall be true and correct only as of such date), except those representations and warranties that are qualified by materiality, Company Adverse Effect or Material Adverse Effect, which shall be true and correct at and as of the Closing Date as if made at and as of the Closing Date (other than such representations and warranties that by their terms address matters only as of another specified date, which shall be true and correct only as of such date).
(c) Buyer shall have received the Officer’s Certificate;
(d) each of the Consents set forth in Schedule 8.02(d) shall have been obtained in form and substance reasonably satisfactory to Buyer and shall be in full force and effect;
(e) Buyer shall have received the agreements and documents, each of which shall be in full force and effect, required to be delivered by Sellers pursuant to Section 2.03;
(f) The Lebanon Agreement, the Consulting Agreements, the Noncompetition Agreements and the Confidentiality Agreement shall be in full force and effect, shall not have been amended, supplemented or otherwise modified other than in accordance with only Section 5.11; provided that this condition to the obligation of Buyer to consummate the transactions contemplated by this Agreement shall not be available to Buyer if Buyer’s failure to comply with its obligations under this Agreement, the Lebanon Agreement, the Consulting Agreements, the Noncompetition Agreements or the Confidentiality Agreement has been the primary cause of, or has primarily resulted in, any such exceptions as would notagreement not being in full force and effect; and
(g) no change, event, effect, condition, circumstances, state of facts or development shall have occurred, arisen or become known since the date of this Agreement that results in, 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.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate effect the Closing is shall be subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Buyer) of each of the following further conditions, any of which may be waived by Buyer in its sole discretion:
(ia) Seller shall have performed and complied in all material respects with all of its agreements, covenants, obligations hereunder and conditions required to be performed and complied by it on or under this Agreement prior to the Closing Date and Buyer shall have received a certificate executed by a duly authorized officer of Seller to such effect on the Closing Date, .
(iib) the The representations and warranties of Seller contained in this Agreement (disregarding all Article III which are qualified as to materiality and Material Adverse Effect qualifications) shall be true when and correct, and the representations and warranties of Seller which are not qualified as to materiality shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Closing Date as though made and at and as of the Closing Date, as if made at except to the extent any such representation or warranty expressly speaks of a particular date, in which case it shall be true and correct 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 executed by an a duly authorized officer of Seller to such effect on 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;Closing Date.
(c) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business as now conducted There shall not have been transferred issued and be in effect any order, decree or judgment of any Governmental Authority enjoining, preventing or restricting the consummation of the transactions contemplated hereby.
(d) There shall not have been instituted or pending any action or proceeding (other than any actions or proceedings that are demonstrably frivolous) by any Governmental Authority or any other Person (i) challenging or seeking to make illegal, to delay materially or otherwise obtained by Buyer on directly or before indirectly to restrain or prohibit the Closing Dateconsummation of the transactions contemplated hereby, or seeking to obtain material damages in connection with only such exceptions as would the transactions contemplated hereby, or (ii) seeking to restrain or prohibit Buyer's acquisition or future receipt of the Net Celgene Payments.
(e) There shall not have occurred any event or development, and there shall not be existing any circumstance, which could reasonably be expected to have a Material Adverse Effect;materially and adversely affect future expected Net Sales or the Celgene Payments.
(df) Buyer shall have received all documents it may reasonably request relating an opinion of counsel to Seller in substantially the form attached hereto as Exhibit D.
(g) Buyer shall have received the Celgene Consent duly executed and delivered by the parties thereto.
(h) Buyer shall have received the CMCC Consent duly executed and delivered by the parties thereto.
(i) Buyer shall have received the existence New Thalidomide Agreement duly executed and delivered by the parties thereto.
(j) Buyer and Seller shall have entered into a mutually satisfactory agreement pursuant to which Buyer and Seller shall identify those sections of Seller the New Thalidomide Agreement that are equivalent to those sections of the Celgene Agreement, for purposes of the definitions of "Applicable Net Celgene Payments", "Applicable Net Sales", "Celgene Payments", "Net Celgene Payments" and its Subsidiaries (including the Purchased Subsidiaries"Shared Net Sales", Section 3.08(c) 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 consummated5.06 hereof.
Appears in 1 contract
Samples: Purchase Agreement (Entremed Inc)
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:
(ia) Seller The Corporation 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, Closing.
(iib) the The representations and warranties of Seller the Corporation contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall in each case, if specifically qualified by materiality, be true when made and correct and, if not so qualified, be true and correct in all material respects at and as of the Closing DateClosing, as if made at and as of such date (except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct on and as of such earlier date).
(c) The Certificate of Designations shall have been filed in accordance with only such exceptions the laws of Delaware.
(d) The Corporation shall have delivered to Buyer (i) a copy of the resolutions adopted by the Board of Directors, certified by the Secretary of the Corporation, authorizing this Agreement and (ii) a certificate dated the Closing Date, signed by an officer of the Corporation, certifying as would notto the fulfillment of the conditions set forth in Sections 8.02(a) and (b).
(e) The Corporation shall have delivered to Buyer an opinion reasonably acceptable to Buyer from the General Counsel of the Corporation, individually with respect to the due incorporation, due authorization, non-contravention, capitalization of the Corporation and the validity of the Preferred Shares.
(f) The Corporation shall have delivered to Buyer an opinion reasonably acceptable to Buyer from Davis Polk & Wardwell, special counsel to the Corporation, with resxxxx xx xxe vxxxx, xxnding and enforceable nature of this Agreement.
(g) There shall not have occurred (i) any event, circumstance, condition, fact, effect, or in the aggregate, other matter which has had or could reasonably be expected to have a Material Adverse Effect and material adverse effect (iiix) Buyer shall have received a certificate signed by an officer on the business, assets, financial condition, prospects, or results of Seller to the foregoing effect;
(b) all consents of third parties required by the agreements listed in Section 10.02(b) operations of the Disclosure Schedule shall have been obtained;
Corporation and its subsidiaries taken as a whole or (cy) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business as now conducted shall have been transferred ability of the Corporation and such subsidiaries to perform on a timely basis any material obligation under this Agreement or otherwise obtained by Buyer on to consummate the transactions contemplated hereby; 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 any material disruption of Seller for this Agreementor material adverse change in financial, all in form and substance reasonably satisfactory to Buyer; and
(e) The proceeds of the Debt Financing shall have been received by Buyer, banking 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 “capital 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 consummatedconditions.
Appears in 1 contract
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 transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions and receipt of the following deliveries on or prior to before the Closing Date, Date from the Company or Seller;
(iii) the representations and warranties of Seller contained set forth in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) Section 3 above shall be true when made and correct in all material respects 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 Company shall have performed and complied with all of Seller for its covenants hereunder in all material respects through the Closing;
(iii) no action, suit, or proceeding shall be pending or threatened before any court or 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:
(A) prevent consummation of any of the transactions contemplated by this Agreement; (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation; and (C) affect adversely the right of Buyer to own the Interests;
(iv) the Company shall have delivered to Buyer an Incumbency Certificate if required to do so, as well as a certificate executed by the President to the effect that each of the conditions specified above in Sections 6(a)(i)-(iii) is satisfied in all respects;
(v) the Company shall, if required, have provided Buyer with the Opinion Letter substantially in the form set out in Exhibit D with a good standing certificate for the Company from its jurisdiction of organization dated no more than twenty (10) days from the Closing Date;
(vi) the stock certificates evidencing the Shares appropriately and legally executed by an authorized officer of the Company, together with the payment of Transfer Taxes, if any;
(vii) the Shareholders Agreement, if required, on such terms and conditions as are satisfactory to the Buyer and its counsel;
(viii) this Agreement;
(ix) Intentionally deleted
(x) all actions to be taken by the Company in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory 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 Buyer 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.its counsel;
Appears in 1 contract
Samples: Purchase and Sale Agreement
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction (satisfaction, or, to the extent permitted by Applicable Law, waiver by Buyer) , of each of the following further conditions:
(i) 8.1.1. No provision of any Applicable Law shall prohibit the consummation of the Closing.
8.1.2. The representations and warranties of the Company and the Seller Parties contained in Section 4 shall have performed be true and correct 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.
8.1.3. Seller Parties have obtained a Valid Certificate or Paying Agent holds a certificate or ruling issued by the ITA in form and substance reasonably acceptable to the Buyer, which is sufficient to enable to conclude that no withholding of Israeli Tax is required with respect to the payment of the Purchase Price to Paying Agent and specifically imposes the exclusive liability on the Paying Agent for any withholding obligation with respect to the Purchase Price (“Paying Agent Certificate”).
8.1.4. Each of the Company and the Seller Parties shall have performed and complied, in all material respects, with only such exceptions as would notall covenants, individually agreements, obligations and conditions contained in this Agreement that are required to be performed 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 complied with by the agreements listed in Section 10.02(b) of Company and/or 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 Seller Parties on or before the Closing Date.
8.1.5. All corporate, with only such exceptions governmental, regulatory and other approvals, consents and/or waivers necessary lawfully to effect the transfer of the Shares, or otherwise to consummate the transaction contemplated hereunder, to be obtained by the Company and the Seller Parties, including the approvals of the Board of Directors and the general meeting of the Company, all as would not reasonably be expected to have a Material Adverse Effect;
(d) Buyer provided in Exhibit 8.1.5 hereto, shall have received all documents it may reasonably request relating been obtained, and a copy thereof shall have been transferred to (i) the existence of Seller and its Subsidiaries (including the Purchased Subsidiaries) and (ii) the authority of Seller for this AgreementBuyer at Closing, all in each case in form and substance reasonably satisfactory to Buyer; and
(e) The proceeds of the Debt Financing , and no such consent, authorization or approval shall have been received revoked.
8.1.6. There shall not have been threatened, instituted or pending any lawsuit, litigation, claims, investigations or other proceedings by Buyer, or any third party which purports to prevent the transaction contemplated hereunder;
8.1.7. There shall be fully available to Buyer, have been no outstanding Lien on substantially any assets of the terms and conditions set forth in Company (other than the Debt Commitment Letter (including after giving effect to any changes pursuant Permitted Liens).
8.1.8. No Material Adverse Effect shall have occurred from the date hereof to the “market flex” provisions thereof); provided that Buyer Closing Date;
8.1.9. The Company shall not be entitled precluded from registering in its Share Registry the transfer of all the Shares held by the Seller to assert the failure Buyer in accordance with the Israeli Companies Law of 5759-1999 and its Organizational Documents.
8.1.10. The Company shall have taken care of the condition set forth items listed on Exhibit 8.1.10 hereto, 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 consummateda reasonable form and substance.
Appears in 1 contract
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 transactions to be performed by it on or prior to in connection with the Closing Date, is subject to satisfaction of the following conditions:
(iia) (i) the representations and warranties of Seller set forth in Article 3 above, shall be true and correct in all material respects, and (ii) all agreements and covenants contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall be true when made and have been performed or complied with by Seller, in each case, at and as of the Closing Date;
(b) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 7.01(a) is satisfied in all respects;
(c) Seller shall have delivered to Buyer the bill of sale required under Section 2.07, as if made at together with any other instrument of transfer necessary to convey to Buyer all of the Acquired Assets, which instruments shall be reasonably satisfactory in form and substance to Buyer;
(d) there shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement;
(e) Bxxxx shall have received copies of the resolutions of Seller’s board of directors, certified by the Secretary or Assistant Secretary of Seller as of such datethe Closing Date, with only such exceptions as would notauthorizing (i) the consummation of the transactions contemplated by this Agreement, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (iiiii) the execution and delivery of this Agreement and all other documents contemplated or required hereunder and thereunder;
(f) Buyer shall have received a certificate signed by an officer good standing certificates of Seller from the Secretary of State of the State of its jurisdiction of organization and any other jurisdiction in which Seller does business or is authorized to do business.
(g) Seller shall have received all Required Consents set forth in Section 7.01 of the foregoing effectDisclosure Schedule;
(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;
(dh) Buyer shall have received evidence that all documents it may reasonably request relating franchise and other taxes and fees have been paid in full to the State of California and any other jurisdiction in which the Seller does business or is authorized to do business, all on terms satisfactory to Buyer;
(i) Buyer shall have received duly executed UCC-3 termination statements and such other release and termination instruments (or copies thereof) as the existence Buyer shall reasonably request in order to vest all right, title and interest in and to the Acquired Assets free and clear of all Security Interests;
(j) There shall have been no Material Adverse Effect on Seller, the Business or the Acquired Assets;
(k) The Seller shall have timely filed any and its Subsidiaries (including all required Tax Returns and other documents necessary to comply with all bulk sales laws which may be applicable to the Purchased Subsidiaries) and (ii) the authority of Seller for this Agreement, all in form and substance reasonably satisfactory to Buyertransactions contemplated herein; and
(el) 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 Buyer may waive 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 specified in this Section 10.02(e) 7.01 if it executes a writing so stating at or prior to the failure of the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummatedClosing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Solar Integrated Roofing Corp.)
Conditions to Obligation of Buyer. The obligation of the Buyer to consummate the transactions to be performed by it in connection with 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 The representations and warranties of the Shareholders set forth in Section 2.a above shall have performed be true and correct 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 ;
(ii) The Shareholders shall have performed and as complied with all of such date, with only such exceptions as would not, individually or their covenants hereunder in all material respects through the aggregate, reasonably be expected to have a Material Adverse Effect and Closing;
(iii) Buyer This Agreement and the transactions contemplated herein shall have received a certificate signed been duly approved and authorized by an officer the Board of Seller to Directors and if required, the foregoing effectshareholders, of the Buyer;
(biv) all consents No action, suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of third parties required any federal, state, local, or foreign jurisdiction wherein an unfavorable judgment, order, decree, stipulation, injunction, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (C) require divestiture of any of the Company Shares by the agreements listed Buyer (and no such judgment, order, decree, stipulation, injunction, or charge shall be in Section 10.02(b) of the Disclosure Schedule shall have been obtainedeffect);
(cv) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business The Shareholders represent as now conducted shall have been transferred to or otherwise obtained by Buyer on or before of the Closing Date, to the effect that: (A) the Company is a corporation duly organized, validly existing and in good standing under the laws of British Columbia and has the requisite power and authority to own, lease and operate its properties, and corporate power to carry on its business as now being conducted; (B) each of the Shareholders has full power and authority to execute and deliver this Agreement and to perform their obligations hereunder, and this Agreement constitutes the valid and legally binding obligation of the Shareholders, enforceable in accordance with only its terms and conditions; (C) no notice to or filing with, and no authorization, consent or approval of, the SEC, any other governmental agency or authority, or any other person is needed or required to be obtained in order to consummate the transactions contemplated by this Agreement; (D) the entire authorized capital stock of the Company consists of 16,000,002 shares are issued and outstanding, and no shares of preferred stock; (E) all of the outstanding shares of the Company are duly and validly issued, fully paid and non-assessable, and the issuance of such exceptions shares has complied with all applicable federal and state securities laws and the regulations promulgated thereunder; (F) other than as would set forth and disclosed in the Shareholders’ Disclosure Schedule, there are no outstanding or authorized options, warrants, rights, contracts, calls, puts, rights to subscribe, conversion rights, or other agreements or commitments to which the Company or any of its Shareholders is a party or which are binding upon the Company or its Shareholders providing for the issuance, disposition or acquisition of any of the capital stock of the Company; (G) there are no voting trusts, proxies, or any other agreements or understandings with respect to the voting of the capital stock of Company; (H) the Company is duly qualified and in good standing as a domestic corporation and is authorized to do business in all states or other jurisdictions in which such qualification or authorization is necessary, and there has not reasonably been any claim by any other state or jurisdiction to the effect that the Company is required to qualify or otherwise be expected authorized to do business as a foreign corporation therein; (I) all persons who have executed or will execute this Agreement on behalf of the Shareholders have been duly authorized to do so; and (J) to the best knowledge of such counsel, there is no action, suit or proceeding and no investigation by any governmental agency pending or threatened against the Company, its assets or business, or against any of the Shareholders that could have a Material Adverse Effect;material adverse effect on the business, assets or financial condition of the Company. Share Exchange Agreement
(dvi) Buyer The Shareholders 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 delivered to the “market flex” provisions thereof); provided that Buyer shall not be entitled to assert at the failure of Closing the certificates evidencing their respective Company Shares, duly endorsed for transfer. The Buyer may waive any condition set forth specified in this Section 10.02(e) 3.a if it executes a writing so stating at or prior to the failure of the Debt Financing to be consummated has resulted solely from the failure of the Equity Financing to be consummatedClosing.
Appears in 1 contract
Samples: Share Exchange Agreement (Westmountain Index Advisor Inc)
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 transactions to be performed by it on or prior to in connection with the Closing Date, is subject to satisfaction of the following conditions:
(iia) each of the representations and warranties of Seller contained the Company set forth in this Agreement (disregarding shall have been true and correct in all materiality respects as of the date hereof and Material Adverse Effect qualifications) shall be true when made and at correct in all respects on and as of the Closing Date, Date as if though made at on and as of the Closing Date except that those representations and warranties which address matters as of or for a particular date or time period shall remain so true and correct only as of such date, with only date or for such exceptions as would nottime period and except for such inaccuracies of representations and warranties which, individually or in the aggregate, reasonably be expected to have do not constitute a Material Adverse Effect and (iii) Buyer shall have received a certificate signed by an officer of Seller to the foregoing effectEffect;
(b) all consents of third parties required by the agreements listed in Section 10.02(b) of the Disclosure Schedule Company shall have been obtainedperformed and complied with all of its covenants, in all material respects, hereunder through the Closing;
(c) all governmental licenses, authorizations, permits, consents between the date hereof 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 there shall have been no change in the Business of the Company having a Material Adverse Effect;
(d) Buyer the Voting Agreement shall have received all documents it may reasonably request relating to been fully complied with by the Persons party thereto and shall remain in full force and effect until the Effective Time;
(ie) the existence total number of Seller and its Subsidiaries Dissenting Shares shall not exceed 10% of the outstanding shares of the Common Stock as of the Closing Date;
(including the Purchased Subsidiaries) and (iif) the authority Company shall have terminated immediately prior to Closing those employees of Seller the Company designated by Buyer and listed in Section 8.03(f) of the Disclosure Schedule (the “Terminated Employees”); at or prior to the Closing, the Company shall have satisfied in full the then-outstanding payment obligations under the automobile lease for this Agreementthe automobile utilized by the applicable Terminated Employee set forth in item 221, 222, 223 or 224 of Section 5.10(a) of the Disclosure Schedule, as the case may be, and shall have assigned to such Terminated Employee, and released the Company from its obligations under, such automobile lease; the Company shall have also satisfied any employment-related obligations or liabilities arising out of the Terminated Employees’ employment with the Company, including, without limitation, payment of all wages, deferred compensation and any severance earned through the date of such termination; and in connection with such termination, each Terminated Employee (other than Xxx Xxxxxx) shall have executed a waiver and release in substantially the form attached hereto as Exhibit C; and
(g) the Company shall have delivered or caused to be delivered to Buyer the following items at or prior to the Closing, in form and substance reasonably satisfactory acceptable to Buyer and its counsel and executed (as applicable) by the Shareholders, the Company and/or its affiliated parties:
(i) [INTENTIONALLY OMITTED]
(ii) a certificate of the Secretary of the Company certifying that [a] attached thereto are true and complete copies of the Articles of Incorporation and By-Laws of the Company and the equivalent documents for the Company Subsidiaries, as amended through and in effect on the Closing Date and [b] all conditions set forth in Section 8.03(a) have been fulfilled;
(iii) a certificate, dated not earlier than 20 days prior to the Closing Date, of the secretary of state or similar Governmental Authority of the State of Wisconsin and of each jurisdiction in which the Company and any Company Subsidiary is qualified to do business stating that such member of the Company Group is in good standing or has comparable active status in such jurisdiction;
(iv) a certificate of the Secretary of the Company certifying to the resolutions of the Board of Directors of the Company, in form and substance reasonably acceptable to Buyer, authorizing and approving the execution and delivery by the Company of this Agreement and the other documents and instruments to be executed and delivered by the Company pursuant hereto and the consummation of the transactions contemplated by this Agreement and such other documents and instruments;
(v) a Letter of Transmittal duly completed and executed by each Shareholder that is not a Dissenting Shareholder, together with reasonably appropriate related documentation;
(vi) resignations of all current directors and officers of the Company and directors, officers or equivalent position of any Company Subsidiary (provided that such resignations shall not affect such individual’s employment with the Company or Company Subsidiary);
(vii) releases of Encumbrances for all Indebtedness (or a commitment by the applicable lender to release upon receipt of amounts due, as stated in any applicable payoff statement or instruction);
(viii) an estoppel certificate, in a form mutually acceptable to Buyer and the Company, from the landlord with respect to the leased Real Property occupied by the Company, dated not earlier than 30 days prior to the Closing Date;
(ix) releases of all other Encumbrances, other than Permitted Encumbrances;
(x) all applicable third party consents and terminations set forth in Section 8.03(g)(x) of the Disclosure Schedule necessary for the transactions contemplated herein;
(xi) the Employment Agreements, duly executed by the appropriate individuals;
(xii) the opinion of Xxxxxxx & Xxxx, S.C., special counsel to the Company, addressed to Buyer and dated as of the Closing Date, in a form mutually acceptable to the parties hereto;
(xiii) the Paying Agent Agreement, duly executed by the Paying Agent and Shareholders’ Representative; custody, by such means as Buyer may reasonably request, of the minute book(s), stock ledger and equivalent documentation for the Company and each Company Subsidiary; and
(exiv) The proceeds such other documents, instruments and agreements as are reasonably requested by Buyer or its counsel. In the event that any of the Debt Financing foregoing conditions to Closing shall not have been received by Buyersatisfied as of the Closing Date and the Buyer and Merger Sub elect to consummate the transactions described herein despite such failure, or the Buyer and Merger Sub shall be deemed to have fully available to Buyer, on substantially waived 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 satisfaction 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 consummatedsuch conditions.
Appears in 1 contract
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 (or, to the extent permitted by Applicable Law, waiver by Buyer) of the following further conditions:
(i) Seller the representations and warranties set forth in ss.3(a) above shall have performed be true and correct 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 ;
(ii) Seller shall have performed and as complied with all of such date, with only such exceptions as would not, individually or its covenants hereunder in all material respects through the aggregate, reasonably be expected to have a Material Adverse Effect and Closing;
(iii) Buyer there shall have received a certificate signed not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions contemplated by an officer of Seller to the foregoing effectthis Agreement;
(biv) all consents of third parties required by Seller shall have delivered to Buyer a certificate to the agreements listed in Section 10.02(b) effect that each of the Disclosure Schedule shall have been obtainedconditions specified above in ss.6(a)(i)-(ii) is satisfied in all respects;
(cv) all governmental licenses, authorizations, permits, consents applicable waiting periods (and approvals required to carry on any extensions thereof) under the Business as now conducted Hart-Scott-Rodino Act shall have been transferred to expired or otherwise obtained by Buyer on or before bxxx xxxxxxxxxx xxd the Closing Date, with only such exceptions as would not reasonably be expected to have a Material Adverse Effect;
(d) Buyer Parties shall have received all documents it may reasonably request relating other authorizations, consents, and approvals of governments and governmental agencies referred to (i) the existence of Seller and its Subsidiaries (including the Purchased Subsidiariesin ss.3(a)(iii) and ss.3(b)(iii) above;
(iivi) all conditions have been satisfied to the authority obligations of the parties to the Asset Purchase Agreement and the Stock Purchase Agreement and the closings of the transactions contemplated in the Asset Purchase Agreement and the Stock Purchase Agreement shall occur simultaneously with the Closing;
(vii) Seller for shall not have engaged in any practice, taken any action, or entered into any transaction outside the Ordinary Course of Business since the date of this AgreementAgreement other than as contemplated by the Asset Purchase Agreement or described in the Disclosure Schedule; and
(viii) all actions to be taken by Seller in connection with consummation of the transactions contemplated hereby and all certificates, all instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance reasonably satisfactory to Buyer; and.
(ea) The proceeds of the Debt Financing shall have been received by Buyer, if it executes a writing so stating at 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 prior 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 consummatedClosing.
Appears in 1 contract
Samples: Units Purchase Agreement (U S Restaurant Properties Master L P)
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:
(ia) 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, ;
(iib) 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 correct as of the Closing Date, Date (as if made at and as of such date, with only unless such exceptions representation or warranty references that it is made solely as of a specific date in which case as of such date), except to the extent the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and Effect;
(iiic) Buyer shall have received a certificate signed by an officer of Seller to the foregoing effect;
(bd) all consents from the date of third parties required this Agreement, there shall have been no Material Adverse Effect on the Business;
(e) the cash and cash equivalents to be delivered by Seller to Buyer at the agreements Closing shall not be less than the Target Cash, as evidenced to Buyer’s reasonable satisfaction.
(f) The Title Company shall have committed to issue and be in a position to issue, the Title Policy pursuant to Section 2.09(f); and
(g) The Required Consents (or in lieu thereof waivers) listed in Section 10.02(b) 10.02 of the Disclosure Schedule (i) 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 shall be in form and substance reasonably satisfactory to Buyer; and
, (eiii) 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 subject to assert the failure satisfaction of the any condition set forth that has not been satisfied or waived and (iv) shall be 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 consummatedfull force and effect.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation obligations of Buyer to consummate the Closing is are subject to the satisfaction or waiver (or, to the extent permitted by Applicable where permissible under applicable Law, waiver by Buyer) of the following further additional conditions:
(a) (i) Each of the Fundamental Warranties of the Seller Parties shall be true and correct in all respects (without giving effect to any “materiality” or similar qualifiers contained in any such representations and warranties), (ii) each of the other representations and warranties of the Seller Parties contained in this Agreement (A) that are qualified by “materiality” or similar qualifiers shall be true and correct in all respects, and (B) that are not qualified by “materiality” or similar qualifiers shall be true and correct in all material respects, in each case of the foregoing clauses (i) and (ii), as of the date hereof and as of the Closing Date as though made on and as of such date (except for any such representations and warranties that are made only as of a specific date, which shall be true and correct only as of such date).
(b) The Seller Parties shall have performed or complied in all material respects with all of its obligations hereunder agreements and covenants required by this Agreement to be performed or complied with by it the Seller Parties on or prior to the Closing Date.
(c) The Seller Parties shall have delivered to Buyer a certificate, dated the Closing Date, signed by a duly authorized executive officer of Sohu, certifying as to the satisfaction of the conditions specified in Section 6.02(a) and Section 6.02(b).
(d) Each of the Consent and the Management Voting Termination Agreement shall have been duly executed and remain effective.
(e) The Merger Agreement shall have been duly executed by the parties thereto and remain effective.
(f) All conditions in Section 7.01 and Section 7.02 of the Merger Agreement (other than the consummation of the Transactions under this Agreement and those conditions that by their terms are to be satisfied upon the effectiveness of the Merger) shall have been satisfied or waived.
(g) No fact, event, circumstance, change, condition, occurrence or effect shall have occurred and be continuing which would result in any condition in Section 7.01 and Section 7.02 of the Merger Agreement not being satisfied if the closing of the Merger took place at the Closing.
(h) The Seller Parties shall have delivered to Buyer the documents duly signed by the applicable parties as specified in Schedule 4.09.
(i) The Seller Parties shall have delivered to Buyer copies of the director resolutions of each of the Seller Parties duly authorizing and approving this Agreement and the Transactions.
(j) The Seller Parties shall have delivered to Buyer a copy of the resignation letter of each of the directors set forth in Schedule 1.02(b) effective from the Closing.
(k) The Seller Parties shall have delivered to Buyer a copy of the resolutions of the Company Board duly authorizing and approving (i) that the register of members of the Company be updated to reflect the transfer of the Transferred Shares, (ii) the representations and warranties appointment of Seller contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall be true when made and at and the directors designated by Buyer such that the directors designated by Buyer would constitute a majority of the directors of the Company Board as of the Closing DateClosing, and the appointment of a director designated by Buyer as if made at and the chairman of the Company Board effective as of such datethe Closing, 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 that the register of Seller directors of the Company be updated to reflect such appointments and the foregoing effect;resignation of directors set forth in Schedule 1.02(b).
(bl) all consents of third parties required by the agreements listed in Section 10.02(b) of the Disclosure Schedule Each Related Party Termination Contract shall have been obtained;entered into pursuant to Section 4.08 and remain effective.
(cm) all governmental licenses, authorizations, permits, consents and approvals required to carry on the Business as now conducted Each Option Cancellation Agreement 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;duly executed and remain effective.
(dn) 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 All PRC Regulatory Filings shall have been received by Buyerduly made or obtained, and any applicable statutory clearance or non-objection period in respect thereof shall be fully available have expired and no objection shall have been raised with respect to the Transactions, in each case in accordance with applicable PRC Laws.
(o) Seller and the other parties to the Management Voting Agreement shall have entered into a termination agreement (the “Management Voting Termination Agreement”) to terminate the Management Voting Agreement, effective upon the Closing, and delivered a true and complete copy of such Management Voting Termination Agreement 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.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated by this Agreement is subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by BuyerBuyer in its sole discretion) of the following further conditions:
(ia) 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 The representations and warranties of Seller contained set forth in this Agreement (disregarding all materiality shall have been true and Material Adverse Effect qualifications) correct at and as of the date hereof and shall be true when and correct at and as of the Closing Date as if made and at and as of the Closing Date, as if made at except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date, .
(b) Seller shall have performed or complied with only such exceptions as would not, individually all obligations and covenants required by this Agreement to be performed or in complied with by Seller at or prior to the aggregate, reasonably be expected to have a Material Adverse Effect and Closing.
(iiic) Buyer shall have received a certificate dated the Closing Date signed on behalf of Seller by an officer the President of Seller to the foregoing effect;effect that the conditions set forth in Sections 7.2(a) and 7.2(b) have been satisfied (the “Seller Closing Certificate”).
(bd) all consents of third parties required by the agreements listed in Section 10.02(b) of the Disclosure Schedule There shall have been obtained;no material adverse change in the Purchased Assets or the condition (financial or otherwise), operations, prospects or results of operations of the Business.
(ce) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of any of the transactions contemplated by this Agreement or the Ancillary Agreements, (ii) affect adversely the right of Buyer to own the Purchased Assets or (iii) restrain or prohibit Buyer’s ownership or operation (or that of its Subsidiaries or Affiliates) of all governmental licenses, authorizations, permits, consents and approvals required to carry on or any material portion of the Business as now conducted or Purchased Assets, or compel Buyer or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the Business or Purchased Assets or all or any material portion of the business and assets of Buyer and its Subsidiaries. No such Order shall be in effect.
(f) No Law shall have been transferred enacted or shall be deemed applicable to the transactions contemplated by this Agreement 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;Ancillary Agreements which has any of the effects set forth in clauses (i) through (iii) in Section 7.2(e).
(dg) [intentionally omitted]
(h) Seller shall have obtained the Consent of each Person whose Consent is required under the Material Contracts set forth in Schedule 7.2(h) and shall have provided evidence of each such Consent in form and substance satisfactory to Buyer.
(i) Buyer shall have received all Authorizations (including any Environmental Permits) that are necessary for it to conduct the Business substantially as conducted by Seller on the Balance Sheet Date and the date of this Agreement.
(j) Seller shall have delivered to Buyer all agreements and other documents it required to be delivered by Seller to Buyer pursuant to Section 3.2 of this Agreement.
(k) Buyer shall have received a certificate of the Secretary of Seller dated the Closing Date and certifying: (A) that attached thereto are true and complete copies of all resolutions adopted by the Board of Directors and the stockholders of Seller in connection with the transactions contemplated by this Agreement and the Ancillary Agreements, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated by this Agreement and the Ancillary Agreements; and (B) to the incumbency and specimen signature of each officer of Seller executing this Agreement and/or the Ancillary Agreements, and a certification by another officer of Seller as to the incumbency and signature of the Secretary of Seller.
(l) Buyer shall have received evidence in form and substance satisfactory to Buyer that all Liens other than Permitted Liens with respect to the Purchased Assets have been released.
(m) Buyer shall have received the written opinion of Xxxxx Xxxx LLP, dated the Closing Date, in the form of Exhibit H hereto.
(n) Buyer shall have completed and shall be fully satisfied in its sole discretion with the results of its review of, and its other due diligence investigations with respect to, the Business. Such review may reasonably request relating to include an analysis by Buyer or its representatives of (i) the existence results of Seller and its Subsidiaries (including any environmental assessment of the Purchased Subsidiaries) Real Property that Buyer shall deem appropriate and (ii) environmental and OSHA practices and procedures of Seller.
(o) Buyer shall have received from Seller a Confidentiality, Assignment of Invention, Non-competition, Non-Solicitation Agreement duly executed by Xxxxxx Xxxxxxxxxxxx, whereby Xxxxxx Xxxxxxxxxxxx agrees to be bound by certain confidentiality, assignment of invention, non-competition and non-solicitation obligations for a period of five (5) years from the authority Closing Date.
(p) [intentionally omitted]
(q) Buyer shall have received from all Transferred Employees a Confidentiality, Assignment of Seller for this Invention, Non-Competition and Non-Solicitation 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 whereby such Transferred Employees agree to be consummated has resulted solely from the failure bound by certain confidentiality, assignment of the Equity Financing to be consummatedinvention, non-competition and non-solicitation obligations.
Appears in 1 contract
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, or 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) in any certificate or other writing delivered by Seller pursuant hereto, shall have been true as of the date hereof and shall be true when made and at and as of the Closing DateDate in all material respects, as if made at and as of such date, with only such exceptions except for changes permitted or contemplated by this Agreement and insofar as would notany representation or warranty is made specifically as of the date of this Agreement or other specified earlier date, 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 appropriate executive 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 an opinion of Xxxxxxxxx Xxxxxx, Vice President and General Counsel of Xxxxx Intercable and counsel to (i) Seller, dated the existence of Seller and its Subsidiaries (including the Purchased Subsidiaries) and (ii) the authority of Seller for this AgreementClosing Date, all in form and substance reasonably satisfactory to Buyer; and.
(ec) Buyer shall have received an opinion of Xxxx, Raywid & Xxxxxxxxx, Seller's FCC counsel, dated the Closing Date, in form and substance reasonably satisfactory to Buyer.
(d) The proceeds System shall have as of the Debt Financing shall have been received by BuyerClosing Date, or shall be fully available to Buyerat least (i) 19,000 Basic Subscribers, on substantially the terms (ii) 24,523 Homes Passed, 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 iii) Total Revenue From All Subscribers of at least $1,724,819. If Buyer shall not be entitled to assert the failure of waive the condition set forth in this paragraph (d), Buyer shall nevertheless be entitled to the benefit of the adjustments to the Purchase Price described in Article 2, including without limitation to the full extent set forth in Section 10.02(e2.5(b).
(e) There shall have been no material adverse change in the business, assets, condition (financial or otherwise) or results of operations of the business of the System, including without limitation, as to the System's rate regulation position (provided that, certification of a local Franchising Authority shall not, by itself, constitute a material adverse change in the business, assets, condition (financial or otherwise) or results of operation of the business of the System), other than (i) a change arising out of general economic conditions in the United States, (ii) any change affecting the United States cable industry as a whole, including any change arising from legislation, litigation, rulemaking or regulation, any of which affects the United States cable industry as a whole or (iii) competition caused by or arising from any Multi-Channel Video Service providers who are currently competing with, have the legal authorization, pursuant to a franchise or license, to compete with, or have announced their intention to compete with the Seller, and which are set forth on Schedule 3.27. -------------
(f) Buyer shall have entered into, or received a valid assignment of, a retransmission consent agreement with each broadcaster whose signal is carried on the System at the Closing who did not make a so-called "must carry" election under the Cable Act on terms and conditions reasonably acceptable to Buyer, including without limitation, with respect to channel KTXL.
(g) Buyer shall have conducted an Environmental Assessment of the Owned Real Property and the Leased Real Property, which audit will identify and delineate, to the fullest extent possible, all Environmental Liabilities in connection with such Owned Real Property and the Leased Real Property and which Assessment shall be satisfactory to the Buyer in its reasonable discretion. For purposes of this provision, an "ENVIRONMENTAL ASSESSMENT" means: (i) a Phase I report in accordance with a scope of work provided by Buyer, and (ii) if warranted by the failure facts discovered in the Phase I report, in Buyer's sole discretion, a Phase II report in order to identify the existence and extent of Hazardous Substances at the Debt Financing Owned Real Property and the Leased Real Property or in buildings or other structures on such Owned Real Property and the Leased Real Property. Such a Phase II report shall include, but shall not be limited to, the physical sampling and analytical analysis necessary to be consummated has resulted solely from determine the failure existence and extent of the Equity Financing to be consummatedparticular types of contamination.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ids Jones Growth Partners 87-a LTD/Co/)
Conditions to Obligation of Buyer. The obligation In addition to the conditions set forth in Section 8.01 above, the obligations of Buyer to consummate the Closing is shall be subject to the satisfaction satisfaction, or (or, to the extent permitted by Applicable Law, ) waiver by Buyer) Buyer on or prior to the Closing Date, of each of the following further conditions:
(ia) Seller shall have performed and complied in all respects with all covenants and obligations under Section 2.05 of this Agreement required to be performed and complied with by it as of the Closing Date and Seller shall have performed and complied in all material respects with all of its other covenants and obligations hereunder under this Agreement required to be performed and complied with 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;
(b) All Consents and Government Contract Consents set forth on Schedule 8.02(b)(i), all notices set forth on Schedule 8.02(b)(ii) and all Governmental Approvals shall have been obtained, made or given (as if made at applicable);
(c) There shall have been no Material Adverse Effect with respect to the Business, Seller or Buyer;
(d) No Proceeding shall be pending or threatened which (i) could reasonably be expected to result in a Material Adverse Effect with respect to the Business or Seller, or (ii) could reasonably be expected to materially and as adversely affect the Business, the Acquired Companies, Buyer or Buyer Parent (including, without limitation, any such Proceeding relating to any alleged violation of, or non-compliance with, any Applicable Law, or any allegation of fraud or intentional misrepresentation);
(e) Buyer shall have received evidence reasonably satisfactory to it that all Liens, other than Permitted Liens, on the assets and properties of the Acquired Companies have been paid, satisfied or otherwise discharged;
(f) None of the Employees listed on Schedule 8.02(f) shall have ceased to be employed by the Acquired Companies or indicated any intent not to remain employed by the Acquired Companies or Buyer following the Closing pursuant to the terms of such dateemployee’s Employment Agreement; and
(g) None of the Acquired Companies shall have entered into any teaming or similar Contract, Government Contract or Government Bid which (i) (A) imposes any restriction on the ability of any Acquired Company to compete in any business or activity within a certain geographic area, or pursuant to which any benefit or right is required to be given or lost as a result of so competing, (B) grants any exclusive license, supply or distribution agreement or other exclusive rights, or (C) grants any “most favored nation,” rights of first refusal, rights of first negotiation or similar rights with only such exceptions as would notrespect to any product, service or Intellectual Property Right, and (ii) Buyer reasonably believes would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect materially 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) adversely affect Buyer, its Affiliates or any of the Disclosure Schedule shall have been obtained;
(c) all governmental licenses, authorizations, permits, consents and approvals required to carry on Acquired Companies following 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 consummatedClosing.
Appears in 1 contract
Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing transactions contemplated by this Agreement is subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by BuyerBuyer in its sole discretion) of the following further conditions:
(ia) 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 The representations and warranties of Seller contained set forth in this Agreement (disregarding all materiality shall have been true and Material Adverse Effect qualifications) correct at and as of the date hereof and shall be true when and correct at and as of the Closing Date as if made and at and as of the Closing Date, as if made at except to the extent that such representations and warranties refer specifically to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date, .
(b) Seller shall have performed or complied with only such exceptions as would not, individually all obligations and covenants required by this Agreement to be performed or in complied with by Seller at or prior to the aggregate, reasonably be expected to have a Material Adverse Effect and Closing.
(iiic) Buyer shall have received a certificate dated the Closing Date signed on behalf of Seller by an officer a Manager of Seller to the foregoing effect;effect that the conditions set forth in Sections 7.2(a) and 7.2(b) have been satisfied (the “Seller Closing Certificate”).
(bd) all consents of third parties required by the agreements listed in Section 10.02(b) of the Disclosure Schedule There shall have been obtained;no material adverse change in the Purchased Assets or the condition (financial or otherwise), operations, or results of operations of the Business.
(ce) No Action shall be pending or threatened before any court or other Governmental Entity or before any other Person wherein an unfavorable Order would (i) prevent consummation of any of the transactions contemplated by this Agreement or the Ancillary Agreements, (ii) affect adversely the right of Buyer to own the Purchased Assets or (iii) restrain or prohibit Buyer’s ownership or operation (or that of its Subsidiaries or Affiliates) of all governmental licenses, authorizations, permits, consents and approvals required to carry on or any material portion of the Business as now conducted or Purchased Assets, or compel Buyer or any of its Subsidiaries or Affiliates to dispose of or hold separate all or any material portion of the Business or Purchased Assets or all or any material portion of the business and assets of Buyer and its Subsidiaries. No such Order shall be in effect.
(f) No Law shall have been transferred enacted or shall be deemed applicable to the transactions contemplated by this Agreement 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;Ancillary Agreements which has any of the effects set forth in clauses (i) through (iii) in Section 7.2(e).
(dg) Seller shall have obtained the Consent of each Person whose Consent is required under the Material Contracts set forth in Schedule 7.2(g) and shall have provided evidence of each such Consent in form and substance satisfactory to Buyer.
(h) Buyer shall have received all Authorizations that are necessary for it to conduct the Business substantially as conducted by Seller on the Balance Sheet Date and the date of this Agreement.
(i) Seller shall have delivered to Buyer all agreements and other documents it required to be delivered by Seller to Buyer pursuant to Section 3.2 of this Agreement.
(j) Buyer shall have received a certificate of the Secretary of Seller dated the Closing Date and certifying: (A) that attached thereto are true and complete copies of all resolutions adopted by the common members of Seller in connection with the transactions contemplated by this Agreement and the Ancillary Agreements, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated by this Agreement and the Ancillary Agreements; and (B) to the incumbency and specimen signature of the Manager of Seller executing this Agreement and/or the Ancillary Agreements, and a certification by a Manager of Seller as to the incumbency and signature of the Secretary of Seller.
(k) Buyer shall have received evidence in form and substance satisfactory to Buyer that all Liens other than Permitted Liens with respect to the Purchased Assets have been released.
(l) Buyer shall have received the written opinion of Seller’s counsel, dated the Closing Date, in the form of Exhibit D hereto.
(m) Buyer shall have completed and shall be fully satisfied in its sole discretion with the results of its review of, and its other due diligence investigations with respect to, the Business. Such review may reasonably request relating to include an analysis by Buyer or its representatives of (i) the existence results of Seller and its Subsidiaries (including any environmental assessment of the Purchased Subsidiaries) Real Property that Buyer shall deem appropriate and (ii) the authority environmental and OSHA practices and procedures of Seller for this Seller.
(n) Buyer shall have received from all Transferred Employees a Confidentiality, Assignment of Invention, Non-Competition and Non-Solicitation Agreement, all in form whereby such Transferred Employees agree to be bound by certain confidentiality, assignment of invention, non-competition and substance reasonably satisfactory to Buyer; andnon-solicitation obligations.
(eo) The proceeds of the Debt Financing Buyer 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 consummatedexecuted Transition Services Agreement.
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Conditions to Obligation of Buyer. The obligation obligations of Buyer to consummate the Closing is are subject to the satisfaction (or, on or prior to the extent permitted by Applicable Law, waiver by Buyer) Closing Date of each of the following further conditions:
(i) Each of Seller and Orion shall have performed in all material respects all and satisfied each of its obligations hereunder required to be performed and satisfied by it on or prior to the Closing Date, (ii) each of the representations and warranties of Seller contained in this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall be true when made and correct, at and as of the Closing Date, Date with the same force and effect as if made at as of the Closing Date (except that representations and warranties made as of a specific date (other than the date of this Agreement) shall continue to be true and correct in all material respects as of such specific date), except for any breach of any such representations or warranties which, when combined with only all other breaches of such exceptions as would notrepresentations and warranties, individually or in the aggregate, could not be reasonably be expected to have result in a Material Adverse Effect Effect, and (iii) Buyer shall have received a certificate certificates signed by an a duly authorized executive officer of Seller to the foregoing effect;effect and to the effect that, to the knowledge of such executive officer, the conditions specified in this Section 8.01 have been satisfied.
(b) all consents of third parties required by the agreements listed in Section 10.02(b) of the Disclosure Schedule All Required Governmental Approvals and Essential Consents shall have been obtained;obtained without the imposition of any conditions that are or would become applicable to any Entertainment Company or Buyer (or any of its Affiliates) after the Closing that Buyer in good faith determines would be materially burdensome upon the Entertainment Companies taken as a whole or Buyer (or any of its Affiliates) or the businesses of the Entertainment Companies taken as a whole and Buyer substantially as such businesses have been conducted prior to the Closing Date or as said businesses, as of the date hereof, would reasonably be expected to be conducted after the Closing Date. All such Required Governmental Approvals and Essential Consents shall be in effect. All conditions and requirements prescribed by any Required Governmental Approval and Essential Consent (or any such other consent) to be satisfied on or prior to the Closing Date shall have been satisfied allowing all such Required Governmental Approvals and Essential Consents (and all such other consents) to be effective and enforceable, and to remain effective and enforceable against the Persons giving such Required Governmental Approvals and Essential Consents (and such other consents) assuming continued compliance with the terms thereof.
(c) all governmental licenses, authorizations, permits, consents The transactions contemplated by this Agreement and approvals required to carry on the Business as now conducted shall have been transferred to or otherwise obtained by Buyer on or before consummation of the Closing Dateshall not violate any Applicable Law. No temporary restraining order, 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) preliminary or permanent injunction, cease and desist order or other order issued by any court of competent jurisdiction or any competent Governmental Authority or any other legal restraint or prohibition preventing the existence of Seller transfer and its Subsidiaries (including exchange contemplated hereby or 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 consummation of the Debt Financing shall have been received by BuyerClosing, or imposing Damages in respect thereto, shall be fully available to Buyerin effect, 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.and
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Conditions to Obligation of Buyer. The Buyer’s obligation of Buyer to consummate the transactions contemplated by this Agreement and the other Transaction Documents and to take the other actions required to be taken by Buyer at Closing is subject to the satisfaction (orsatisfaction, to the extent permitted by Applicable Lawat or before Closing, waiver by Buyer) as applicable, of each of the following further conditions:conditions (any of which may be waived in writing by Buyer in its sole discretion, in whole or in part):
(ia) Seller shall have performed in all material respects all of its obligations hereunder required Without regard to be performed by it on any reference to “Material Adverse Effect” or prior to the Closing Dateother materiality qualification contained therein, (ii) the representations and warranties set forth in Article 2, individually and collectively, must have been accurate as of Seller contained in the date of this Agreement (disregarding all materiality and Material Adverse Effect qualifications) shall must be true when made and at and accurate as of the Closing Date, Date as if made at and again on the Closing Date (except for a representation or warranty made as of a specific date or for a particular period, the accuracy of which will be determined as of such date, with only specific date or for such exceptions as would not, individually or particular period) 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 effectall material respects;
(b) Seller must have performed and complied with, in all consents of third parties material respects, its covenants, agreements and obligations under each Transaction Document required by the agreements listed in Section 10.02(b) of the Disclosure Schedule shall have been obtainedto be performed or complied with before Closing;
(c) all governmental licensesSeller must have delivered to Buyer, authorizations, permits, consents in form reasonably acceptable to Buyer: (i) a certificate dated as of the Closing Date certifying that the conditions set forth in Sections 5.1(a) and approvals required to carry on the Business as now conducted shall 5.1(b) have been transferred to or otherwise obtained by Buyer on or before satisfied and (ii) each of the Closing Date, with only such exceptions as would not reasonably be expected to have a Material Adverse Effectdeliveries set forth in Section 1.7(b);
(d) Buyer shall There must not be a Proceeding or Order pending or Threatened or a Law in effect that would prevent the consummation of the transactions contemplated by this Agreement or another Transaction Document or that would be reasonably likely to result in Losses with respect to Buyer, the Business or any Purchased Asset if the transactions contemplated by this Agreement or the other Transaction Documents were consummated;
(e) No Material Adverse Effect must have received all documents it may occurred or be reasonably request relating likely to occur following Closing;
(if) All licenses, authorizations, consents and approvals by any Person, including the existence of Seller Regulatory Approvals and its Subsidiaries any other Governmental Authorizations or consents under Assigned Contracts (including the Purchased Subsidiaries) and (ii) the authority of Seller for this Agreementwithout limitation, all URAC accreditations) that are necessary for the consummation of the transactions contemplated by this Agreement or any other Transaction Document must have been received, in form and substance forms reasonably satisfactory acceptable to Buyer, and be in full force and effect;
(g) Seller must have delivered to Buyer a certificate of non-foreign status pursuant to Treasury Regulations §1.1445-2(b) from Seller certifying that Seller is not a foreign person subject to withholding under Code Section 1445 and the Treasury Regulations promulgated thereunder; and
(eh) The proceeds of the Debt Financing shall All required filings, declarations and notices of, with or to any Person must have been received by Buyer, timely and properly made or shall given and be fully available to Buyer, on substantially the terms in full force 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 consummatedeffect.
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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 at or prior to the Closing Date, Date and (ii) the representations and warranties of Seller contained in this Agreement (Agreement, disregarding all qualifications and exceptions contained therein relating to materiality and or Material Adverse Effect qualifications) Effect, 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, date with only such exceptions as would not in the aggregate reasonably be expected to have a Material Adverse Effect.
(b) There shall not be any injunction, judgment, order or decree of a court of competent jurisdiction entered, or any law, rule or regulation enacted, adopted, amended or deemed applicable that prohibits the Closing or is reasonably likely to have a Material Adverse Effect, or a material adverse effect on Buyer and its affiliates , taken as a whole, or the ability of Buyer to own and exercise control over the Business after the Closing;
(c) The Amendment and Waiver shall have become effective (assuming the Closing hereunder shall have occurred), or Seller shall have at Closing available funds sufficient (i) to effect all necessary refinancing of all outstanding indebtedness under the Credit Agreement that is required as a result of the transactions contemplated by this Agreement and to pay all related fees and expenses and (ii) to provide reasonable working capital to Seller's business after the Closing.
(d) Buyer Execution and delivery by Seller of the Services, Supply and Sales Agreement in the form and substance set forth as Exhibit C hereto (the "SERVICES, SUPPLY AND SALES AGREEMENT");
(i) Seller 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 AgreementRequired Consents, all in each case in form and substance reasonably satisfactory to Buyer and without imposing any incremental costs on Buyer; and
(e) The proceeds of the Debt Financing , and no such consent, authorization or approval shall have been received by revoked or be subject to revocation and (ii) material terms of any lease of Real Property not subject to a Required Consent shall not have been changed to impose any incremental costs to Buyer.
(f) Buyer shall have (i) obtained at its sole cost an ALTA extended coverage form of leasehold owner's title insurance policies, or binders to issue the same, dated the Closing Date and in amounts satisfactory to Buyer insuring or committing to insure, at ordinary premium rates without any requirement for additional premiums, title to the Real Property as indicated by an asterisk in Schedule 3.12(a), free and clear of any Liens, except for Permitted Liens and Liens disclosed on Schedule 3.12(b); PROVIDED that the condition in this clause (i) will be deemed satisfied without regard to any Liens that may exist on landlord's interest and (ii) received evidence reasonably satisfactory to it that all Liens on any of the Purchased Assets arising under any of Seller's indebtedness for borrowed money that is not an Assumed Liability shall be fully available to Buyerhave been released, including without limitation duly executed partial releases under all applicable UCC financing statements.
(g) Buyer shall have received on substantially or before the terms Closing Date an opinion of Xxxxxxx Xxxx & Xxxxxxxxx and conditions set forth an opinion of Xxxxxxxx Xxxxxx & Finger, in each case in the Debt Commitment Letter (including after giving effect form provided to any changes pursuant Buyer prior 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 consummateddate hereof.
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