Conditions to Obligations of Parent and Subsidiary. The obligations of Parent and Subsidiary to effect the Merger and to consummate the other transactions contemplated by this Agreement at and following the Closing are further subject to the following conditions, any one or more of which may be waived by Parent: (a) all waiting periods, clearances and approvals required under the antitrust Laws of the jurisdictions covered under Schedule 7.2 shall have expired, or been obtained or satisfied, as applicable; (b) the representations and warranties of the Company contained in this Agreement (i) that are set forth in the first sentence of Section 4.1, in Section 4.2 and in Sections 4.4(a), 4.4(d) and 4.4(e) (the “Designated Representations”) shall be true and correct in all material respects as of the date of this Agreement and the Closing Date as if made on such date, (ii) that are qualified as to Company Material Adverse Effect shall be true and correct as of the date of this Agreement and the Closing Date as if made on such date (other than representations and warranties that expressly relate to an earlier date, which shall be true and correct as of such earlier date), and (iii) that are not Designated Representations and are not so qualified shall be true and correct as of the Closing Date in all material respects (other than representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects as of such earlier date), except in the case of the representations and warranties referred to in this clause (iii) for any failure or failures to be true and correct in all material respects that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect; (c) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing; (d) Parent shall have received a certificate signed on behalf of the Company by the Company’s chief executive officer and chief financial officer to the effect that the conditions contained in Sections 7.2(b) and (c) have been satisfied; (e) since the date of this Agreement, no events that, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect shall have occurred; and (f) the Company shall have delivered to Parent a certificate in the form contemplated by Section 897 of the Code to the effect that the Company is not and has not been within five years of the date of the certificate a “United States real property holding corporation” within the meaning of Section 897 of the Code.
Appears in 1 contract
Samples: Merger Agreement (American Power Conversion Corporation)
Conditions to Obligations of Parent and Subsidiary. The obligations of Parent and Subsidiary to effect the Merger and to consummate the other transactions contemplated by this Agreement at and following the Closing are further subject to the following conditions, any one or more of which may be waived by Parent:
(a) all waiting periods, clearances and approvals required under the antitrust Laws of the jurisdictions covered under Schedule 7.2 shall have expired, or been obtained or satisfied, as applicable;
(b) the representations and warranties of the Company contained in this Agreement (i) that are set forth in the first sentence of Section 4.1, in Section 4.2 and contained in Sections 4.4(a4.2(a), 4.4(d4.2(b), 4.2(d), 4.2(g), 4.3(a) and 4.4(e) (the “Designated Representations”4.4(a) shall be true and correct (except, in all the case of Sections 4.2(a), 4.2(b), 4.2(d) and 4.2(g), for such inaccuracies that would not materially increase the aggregate Common Stock Consideration and Equity Award Consideration, taken as a whole, paid on account of the Merger, and except in the case of Section 4.3(a) for such inaccuracies that would not be material respects to the Surviving Corporation or its direct or indirect interest in the assets or earnings of any Company Subsidiary) as of the date of this Agreement and the Closing Date as if made on such date (other than representations and warranties that expressly relate to an earlier date, which shall be true and correct as of such earlier date); (ii) that are qualified as to Company Material Adverse Effect Effect, shall be true and correct as of the date of this Agreement and the Closing Date as if made on such date (other than representations and warranties that expressly relate to an earlier date, which shall be true and correct as of such earlier date), and (iii) that are not Designated Representations and are not so qualified shall be true and correct as of the Closing Date in all material respects (other than representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects as of such earlier date), except in the case of the representations and warranties referred to in this clause (iii) for any failure or failures to be true and correct in all material respects that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect;<PAGE> 37
(cb) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(dc) Parent shall have received a certificate signed on behalf of the Company by the Company’s chief an executive officer and chief financial officer of the Company to the effect that the conditions contained in Sections 7.2(b7.2(a) and (cb) have been satisfied;
(ed) since the date of this Agreement, no events that, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect shall have occurred; and
(fe) the Company shall have delivered to Parent a certificate in the form contemplated by Section 897 of the Code to the effect that the Company is not and has not been within five years of the date of the certificate a “"United States real property holding corporation” " within the meaning of Section 897 of the Code, and shall have filed a notice with the IRS in accordance with Treasury Regulation Section 1.897-2(h).
Appears in 1 contract
Conditions to Obligations of Parent and Subsidiary. The obligations of Parent and Subsidiary to effect the Merger and to consummate the other transactions contemplated by this Agreement at and following the Closing are further subject to the following conditions, any one or more of which may be waived by Parent:
(a) all waiting periods, clearances and approvals required under the antitrust Laws of the jurisdictions covered under Schedule 7.2 shall have expired, or been obtained or satisfied, as applicable;
(b) the representations and warranties of the Company contained in this Agreement (i) that are set forth in the first sentence of Section 4.1, in Section 4.2 and in Sections 4.4(a), 4.4(d) and 4.4(e) (the “Designated Representations”) qualified as to Company Material Adverse Effect or materiality shall be true and correct in all material respects as of the date of this Agreement and the Closing Date as if made on such date, (ii) that are qualified as to Company Material Adverse Effect shall be true and correct as of the date of this Agreement and the Closing Date as if made on such date (other than representations and warranties that expressly relate to an earlier date, which shall be true and correct in all respects as of such earlier date), and (iiiii) that are not Designated Representations and are not so qualified shall be true and correct in all material respects as of the Closing Date in all material respects (other than representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects as of such earlier date), except in the case of the representations ) and warranties referred to in this clause (iii) for any failure that are set forth in Section 4.2(a), 4.2(b)(iii), 4.2(c) or failures 4.2(d) (solely with respect to the first and third sentences thereof) shall be true and correct in all material respects that, individually or in as of the aggregate, would not reasonably be expected to have a Company Material Adverse EffectClosing Date;
(cb) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(dc) Parent shall have received a certificate signed on behalf (i) all Indebtedness of the Company and the Company Subsidiaries shall have been satisfied in full, (ii) all mortgages, security interests, Liens and other encumbrances securing such Indebtedness shall have been released, and (iii) all of the Company's obligations under Section 6.7 shall have been satisfied in full; provided, however, that the requirements of this clause (iii) shall be deemed satisfied if the aggregate unpaid amount as of the Closing of all obligations referred to in Section 6.7 is less than $75,000; for purposes hereof, "Indebtedness" means (A) all obligations of the Company or any of the Company Subsidiaries for borrowed money or with respect to deposits or advances of any kind, (B) all obligations of the Company or any of the Company Subsidiaries evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of the Company or any of the Company Subsidiaries upon which interest charges are customarily paid (other than trade payables incurred in the ordinary course of business), and (D) all guarantees by the Company’s chief executive officer and chief financial officer to Company or any of the effect that the conditions contained in Sections 7.2(b) and (c) have been satisfied;
(e) since the date Company Subsidiaries of this Agreement, no events that, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect shall have occurredIndebtedness of other persons; and
(f) the Company shall have delivered to Parent a certificate in the form contemplated by Section 897 of the Code to the effect that the Company is not and has not been within five years of the date of the certificate a “United States real property holding corporation” within the meaning of Section 897 of the Code.
Appears in 1 contract
Conditions to Obligations of Parent and Subsidiary. The obligations of Parent and Subsidiary to effect the Merger and to consummate the other transactions contemplated by this Agreement at and following after the Closing are further subject to the following conditions, any one or more of which may be waived by Parent:
(a) all waiting periods, clearances and approvals required under the antitrust Laws of the jurisdictions covered under Schedule 7.2 shall have expired, or been obtained or satisfied, as applicable;
(b) the representations and warranties of the Company contained in this Agreement (i) that are set forth in the first sentence of Section 4.1, in Section 4.2 and in Sections 4.4(a), 4.4(d) and 4.4(e) (the “Designated Representations”) shall be true and correct in all material respects as of the date of this Agreement and the Closing Date as if made on such date, (ii) that are qualified as to Company Material Adverse Effect shall be true and correct as of the date of this Agreement and the Closing Date as if made on such date (other than representations and warranties that expressly relate to an earlier date, which shall be true and correct as of such earlier date), and (iiiii) that are not Designated Representations and are not so qualified shall be true and correct as of the Closing Date in all material respects (other than representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects as of such earlier date), except in the case of the representations and warranties referred to in this clause (iii) ii), for any failure or failures to be true and correct in all material respects that, individually or in the aggregate, that would not reasonably be expected to have a Company Material Adverse Effect;
(cb) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to before the Closing;
(dc) Parent shall have received a certificate signed on behalf of the Company by the Company’s chief an executive officer and chief financial officer of the Company to the effect that the conditions contained in Sections 7.2(b7.2(a) and (cb) have been satisfied;
(ed) since the date of this Agreement, no events that, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect shall have occurred; and;
(fe) the Company shall have delivered to Parent a certificate in the form contemplated by Section 897 1445 of the Code to the effect certifying that the Company is not and has not been within five years a foreign person; and
(f) Parent shall have received a written opinion of Hunton & Xxxxxxxx LLP, dated as of the date Closing Date, substantially in the form set forth in Section 7.2(f) of the Company Disclosure Schedule, which opinion will be subject to customary exceptions, assumptions and qualifications and customary representations contained in an officer’s certificate a “United States real property holding corporation” within executed by the meaning of Company substantially in the form set forth in Section 897 7.2(f) of the CodeCompany Disclosure Schedule, which certificate will be subject to such modifications as deemed reasonably necessary by Hunton & Xxxxxxxx LLP and reasonably satisfactory to Parent.
Appears in 1 contract
Samples: Merger Agreement (America First Apartment Investors Inc)
