Common use of Conditions to Obligations of Parent and the Purchaser Clause in Contracts

Conditions to Obligations of Parent and the Purchaser. The obligation of Parent and the Purchaser to consummate the transactions contemplated by this Agreement is subject to the satisfaction, or the waiver at Parent’s and the Purchaser’s sole and absolute discretion, of all the following conditions: (a) (i) Each of the Company and the Seller shall have duly performed in all material respects all of their respective obligations hereunder required to be performed by them at or prior to the Closing Date, (ii) the representations and warranties of the Company and the Seller contained in this Agreement and in any certificate or other writing delivered by the Company or the Seller pursuant hereto, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true and correct at and as of the Closing Date, as if made at and as of such date with only such exceptions as would not in the aggregate reasonably be expected to have a Material Adverse Effect, (iii) since the date of this Agreement, there shall have been no event, change or occurrence which individually or together with any other event, change or occurrence, that has caused a Material Adverse Change or had a Material Adverse Effect, and (iv) Parent and the Purchaser shall have received a certificate signed by an authorized officer of the Company to the effect set forth in clauses (i), (ii) and (iii) of this Section 9.2(a). (b) Parent shall have received (i) a certified copy of the certificate of incorporation of the Company and each Subsidiary, (ii) copies of the By-Laws of the Company and each Subsidiary as effective on the date hereof; (iii) copies of resolutions duly adopted by (a) the Board of Directors of the Company and (b) the Managers or Members of the Seller, authorizing this Agreement and the transactions contemplated hereby, (iv) a certificate of the Secretary or Assistant Secretary of the Company certifying each of the foregoing and including an incumbency certificate, and (v) a recent good standing certificate regarding the Company from the office of the Secretary of State of the State of Delaware and each other jurisdiction in which the Company is qualified to do business. (c) The Company shall have delivered to Parent executed payoff letters from the holders of 1st Lien Secured Debt , 2nd Lien Secured Debt and the Senior Subordinated Notes and UCC-3 Termination Statements necessary to terminate, release or assign, as the case may be, all Liens (other than Permitted Liens) on the assets of the Company. (d) The Company shall have provided to Parent copies of (i) the final audited balance sheets for the fiscal years ended December 31, 2006 and 2007 (the “Final Financial Statements”) and (ii) the unaudited balance sheets of the Company for any subsequent interim period that would be required by GAAP at the time of the Closing. (e) The financial condition and the results of operations of the Company set forth in the Final Financial Statements shall not be materially different, in the aggregate, from the financial condition and the results of operations of the Company set forth in the Draft Financial Statements. (f) The Company shall have delivered to Parent documents satisfactory to Parent to effect the release of all Liens (except for Permitted Liens) on any portion of the assets of the Company and to effect the filing of appropriate UCC-3 Termination Statements. (g) Purchaser has received a certificate of non-foreign status from the Seller under Section 1445(b)(2) of the Code. (h) The Investor Rights Agreement shall have been executed by the Members. (i) The Escrow Agreement shall have been executed by Seller and the Escrow Agent. (j) All Indebtedness of the Company (other than the Indebtedness referred to in Section 9.2(c), to be repaid at Closing) shall have been repaid in full. (k) Certificates representing all of the Shares shall be available at the Closing, together with the original stock ledgers and minute books of the Company. (l) The Seller shall have provided to the Parent and the Purchaser letters signed by each of Cova, Xxxxxxx Xxxxxxxx, Xxxxx Xxxxxx Pacific, L.P., Xxxxx Xxxxxx Pacific Friends Fund, LLC and Xxxx Xxxxxx Living Trust (collectively, the “Affiliated Members”), pursuant to which each Affiliated Member acknowledges (i) the representations and warranties being made by such Affiliated Member in Section 4.5, and (ii) such Affiliate Member’s indemnification obligations under Article XI.

Conditions to Obligations of Parent and the Purchaser. The obligation obligations of Parent and the Purchaser to consummate effect the transactions contemplated by this Agreement is Merger are further subject to satisfaction or waiver by Parent at or prior to the satisfaction, or the waiver at Parent’s and the Purchaser’s sole and absolute discretion, Effective Time of all the following conditions: (a) (i) Each the representations and warranties of the Company set forth in this Agreement that are qualified by a “Company Material Adverse Effect” shall be true and the Seller shall have duly performed in all material respects all of their respective obligations hereunder required to be performed by them at or prior to the Closing Date, correct and (ii) the representations and warranties of the Company and the Seller contained set forth in this Agreement and in any certificate or other writing delivered by the Company or the Seller pursuant hereto, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, that are not so qualified shall be true and correct at and in all material respects, in each case, as of the Closing Date, Effective Time as if though made at on and as of such date with (unless any such representation or warranty is made only such exceptions as would not in the aggregate reasonably be expected to have of a Material Adverse Effectspecific date, (iii) since the date of this Agreement, there shall have been no event, change or occurrence which individually or together with any other event, change or occurrence, that has caused a Material Adverse Change or had a Material Adverse Effect, and (iv) Parent and the Purchaser shall have received a certificate signed by an authorized officer of the Company to the effect set forth in clauses (i), (ii) and (iii) of this Section 9.2(a). (b) Parent shall have received (i) a certified copy of the certificate of incorporation of the Company and each Subsidiary, (ii) copies of the By-Laws of the Company and each Subsidiary as effective on the date hereof; (iii) copies of resolutions duly adopted by (a) the Board of Directors of the Company and (b) the Managers or Members of the Seller, authorizing this Agreement and the transactions contemplated hereby, (iv) a certificate of the Secretary or Assistant Secretary of the Company certifying each of the foregoing and including an incumbency certificate, and (v) a recent good standing certificate regarding the Company from the office of the Secretary of State of the State of Delaware and each other jurisdiction in which the Company is qualified to do business. (c) The Company event such representation and warranty shall have delivered to Parent executed payoff letters from the holders of 1st Lien Secured Debt , 2nd Lien Secured Debt be true and the Senior Subordinated Notes correct or true and UCC-3 Termination Statements necessary to terminate, release or assigncorrect in all material respects, as the case may be, as of such specified date), except that any inaccuracies in any representations and warranties referred to in clause (ii) will be disregarded for purposes of this Section 6.2(a) if the circumstances giving rise to all Liens such inaccuracies (other than Permitted Liensconsidered collectively) on the assets of the Company.do not constitute, and could not reasonably be expected to have or result in a Company Material Adverse Effect; (db) The the Company shall have provided performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to Parent copies of be performed by, or complied with by, it under this Agreement at or prior to the Effective Time; (ic) the final audited balance sheets for the fiscal years ended December 31, 2006 and 2007 (the “Final Financial Statements”) and (ii) the unaudited balance sheets of the Company for any subsequent interim period that would be required by GAAP at the time of the Closing. (e) The financial condition and the results of operations of the Company set forth in the Final Financial Statements shall not be materially different, in the aggregate, from the financial condition and the results of operations of the Company set forth in the Draft Financial Statements. (f) The Company shall have delivered to Parent documents satisfactory to Parent to effect the release of all Liens (except for Permitted Liens) on any portion of the assets of the Company and to effect the filing of appropriate UCC-3 Termination Statements. (g) Purchaser has received a certificate of non-foreign status from the Seller under Section 1445(b)(2) of the Code. (h) The Investor Rights Agreement shall have been executed by the Members. (i) The Escrow Agreement shall have been executed by Seller and the Escrow Agent. (j) All Indebtedness of the Company (other than the Indebtedness referred to in Section 9.2(c)Purchaser a certificate, to be repaid at Closing) shall have been repaid in full. (k) Certificates representing all of the Shares shall be available at the Closing, together with the original stock ledgers and minute books signed by its chief executive officer or another senior officer on behalf of the Company., to the effect that the conditions contained in Section 6.2(a) and Section 6.2(b) have been satisfied in all respects; and (ld) The Seller there shall not have provided to occurred and be continuing as of the Parent and the Purchaser letters signed by each of Cova, Xxxxxxx Xxxxxxxx, Xxxxx Xxxxxx Pacific, L.P., Xxxxx Xxxxxx Pacific Friends Fund, LLC and Xxxx Xxxxxx Living Trust (collectively, the “Affiliated Members”), pursuant to which each Affiliated Member acknowledges (i) the representations and warranties being made by such Affiliated Member in Section 4.5, and (ii) such Affiliate Member’s indemnification obligations under Article XIEffective Time a Company Material Adverse Effect.

Conditions to Obligations of Parent and the Purchaser. The obligation obligations of Parent and the Purchaser to consummate the transactions contemplated by this Agreement is Merger will be subject to the satisfaction, satisfaction or the written waiver at Parent’s and or prior to the Purchaser’s sole and absolute discretion, Effective Time of all each of the following conditions: (a) (i) Each representation or warranty of the Company contained in Section 3.1(a) and (c) (as it applies to the Company Memorandum and the Seller shall have duly performed Company Bye-Laws only), Section 3.2(a), (b), (c), (e), (f) and (g), Section 3.3, Section 3.9, Section 3.22, Section 3.23 and Section 3.24 will be true and correct in material all respects, as of the date of this Agreement and as of the Closing Date with the same force and effect as if made on and as of such date, except for any representation and warranty that is expressly made as of a specific date or time (which needs only be true and correct in all material respects all as of their respective obligations hereunder required to be performed by them at such date or prior to the Closing Date, time) and (ii) the all other representations and warranties of the Company and the Seller contained in this the Agreement and in (without giving effect to any certificate references to any Company Material Adverse Effect or other writing delivered by the Company or the Seller pursuant hereto, disregarding all materiality qualifications and exceptions contained therein relating to other qualifications based upon the concept of materiality or Material Adverse Effectsimilar phrases contained therein), shall will be true and correct at in all respects as of the date of this Agreement and as of the Closing Date, Date with the same force and effect as if made at on and as of such date, except for any representation and warranty that is expressly made as of a specific date with or time (which needs only be true and correct in all respects as of such exceptions date or time), except as has not had and would not in the aggregate reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect. Notwithstanding anything else in this Section 6.2(a), if any inaccuracy or inaccuracies in the representations and warranties contained in Section 3.2(a), (iiib), (c), (e), (f) since or (g) would be reasonably likely to cause the aggregate Merger Consideration to be paid by Parent or the Purchase under this Agreement to increase by U.S. $250,000 or more (excluding any increase in the aggregate Merger Consideration pursuant to additional Common Shares permitted to be issued pursuant to Section 5.1(b)), such representations and warranties will be deemed to fail to be true and correct in all material respects. (b) The Company will have performed and complied in all material respects with the agreements and covenants to be performed or complied with by it under this Agreement at or prior to the Effective Time, or any breach or failure to do so will have been cured. (c) Since the date of this Agreement, there shall will have been no not occurred, arisen or come into existence any change, event, change development, condition, occurrence or occurrence effect which individually or together with any other event, change or occurrence, that has caused a Material Adverse Change or had a Company Material Adverse Effect, and (iv) Parent and the Purchaser shall have received a certificate signed by an authorized officer of the Company to the effect set forth in clauses (i), (ii) and (iii) of this Section 9.2(a). (b) Parent shall have received (i) a certified copy of the certificate of incorporation of the Company and each Subsidiary, (ii) copies of the By-Laws of the Company and each Subsidiary as effective on the date hereof; (iii) copies of resolutions duly adopted by (a) the Board of Directors of the Company and (b) the Managers or Members of the Seller, authorizing this Agreement and the transactions contemplated hereby, (iv) a certificate of the Secretary or Assistant Secretary of the Company certifying each of the foregoing and including an incumbency certificate, and (v) a recent good standing certificate regarding the Company from the office of the Secretary of State of the State of Delaware and each other jurisdiction in which the Company is qualified to do business. (c) The Company shall have delivered to Parent executed payoff letters from the holders of 1st Lien Secured Debt , 2nd Lien Secured Debt and the Senior Subordinated Notes and UCC-3 Termination Statements necessary to terminate, release or assign, as the case may be, all Liens (other than Permitted Liens) on the assets of the Company. (d) The Company shall Parent will have provided to Parent copies of (i) the final audited balance sheets for the fiscal years ended December 31, 2006 and 2007 (the “Final Financial Statements”) and (ii) the unaudited balance sheets of the Company for any subsequent interim period that would be required by GAAP at the time of the Closing. (e) The financial condition and the results of operations of the Company set forth in the Final Financial Statements shall not be materially different, in the aggregate, from the financial condition and the results of operations of the Company set forth in the Draft Financial Statements. (f) The Company shall have delivered to Parent documents satisfactory to Parent to effect the release of all Liens (except for Permitted Liens) on any portion of the assets of the Company and to effect the filing of appropriate UCC-3 Termination Statements. (g) Purchaser has received a certificate of non-foreign status from the Seller under Section 1445(b)(2) of the Code. (h) The Investor Rights Agreement shall have been Company, executed by the Members. (i) The Escrow Agreement shall have been executed by Seller and the Escrow Agent. (j) All Indebtedness of the Company (other than the Indebtedness referred to in Section 9.2(c), to be repaid at Closing) shall have been repaid in full. (k) Certificates representing all of the Shares shall be available at the Closing, together with the original stock ledgers and minute books an executive officer of the Company. , dated as of the Closing Date, certifying that the conditions set forth in subsections (l) The Seller shall have provided to the Parent and the Purchaser letters signed by each of Cova, Xxxxxxx Xxxxxxxx, Xxxxx Xxxxxx Pacific, L.P., Xxxxx Xxxxxx Pacific Friends Fund, LLC and Xxxx Xxxxxx Living Trust (collectively, the “Affiliated Members”a), pursuant to which each Affiliated Member acknowledges (ib) the representations and warranties being made by such Affiliated Member in Section 4.5, and (iic) such Affiliate Member’s indemnification obligations under Article XIof this Section 6.2 have been satisfied.