Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e): (a) Each of the representations and warranties of Sellers contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect. (b) Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing. (c) Sellers shall have delivered, or caused to be delivered, to Purchaser: (i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied; (ii) the Equity Registration Rights Agreement, duly executed by Parent; (iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto; (iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller; (v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller; (vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities; (vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers; (viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers; (ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers; (x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller; (xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller; (xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property; (xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem; (xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent; (xv) [Reserved]; (xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller; (xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller; (xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers; (xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party; (xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code; (xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware; (xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16; (xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and (xxiv) all books and records of Sellers described in Section 2.2(a)(xiv). (d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect. (e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order. (f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 4 contracts
Samples: Master Sale and Purchase Agreement, Master Sale and Purchase Agreement, Master Sale and Purchase Agreement
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are Closing is subject to the fulfillment satisfaction, or written waiver, prior to or the waiver at the ClosingPurchaser’s sole and absolute discretion, of each of all the following further conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each The Company shall have duly performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date.
(b) All of the representations and warranties of Sellers the Company contained in ARTICLE IV of this Agreement and in any certificate delivered by the Company pursuant hereto, disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect, shall be true and correct (disregarding for at and as of the purposes date of such determination any qualification as to materiality or Material Adverse Effect) this Agreement and as of the Closing Date as if made on the Closing Date (except for representations at and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time)date, in each case except to the extent that any breaches of such representations and warrantiesas would not, individually or in the aggregate, have not had, or would not reasonably be expected to have, have a Company Material Adverse Effect.
(b) Sellers , and provided that in each case in that to the extent such representation or warranty is made in ARTICLE IV only as of a specific date, such representation or warranty shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closingspeak only as of such specific date.
(c) Sellers Since the Agreement Date, no Company Material Adverse Effect shall have delivered, or caused to occurred and be delivered, to Purchaser:continuing.
(id) Purchaser shall have received a certificate executed as signed by either the Chief Executive Officer or the Chief Financial Officer of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, Company certifying that each of the conditions set forth in Section 7.2(aSections 9.2(a), 9.2(b) and Section 7.2(b9.2(c) have been satisfied;.
(e) Purchaser shall have received certificates signed by the corporate secretary of the Company and the Sellers, respectively, attaching and certifying to the accuracy of the following: (i) a copy of the memorandum and articles of association of the Company, certified as of a recent date by the Secretary of the Company, (ii) copies of the Equity Registration Rights Agreement, duly executed by Parent;
Company’s certificate of incorporation and certificates of incorporation on change of name; (iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of duly adopted by the board of directors of such Seller, the Company and the Seller authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement hereby and such Ancillary Agreements and the matters set forth in Section 6.16(e)thereby, and (Biv) certifying as to the incumbency signatures of the officer(s) of such Seller executing this Agreement and any certificate or document to be delivered pursuant hereto, together with evidence of the Ancillary Agreements to which incumbency of such Seller is a party;
Secretary, and (xxv) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of recent good standing for each certificate regarding the Company and the Seller from each jurisdiction in which the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions Company and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory Seller organized or is qualified to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)do business.
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 4 contracts
Samples: Share Exchange Agreement (Renren Inc.), Share Exchange Agreement (Kaixin Auto Holdings), Share Exchange Agreement (CM Seven Star Acquisition Corp)
Conditions to Obligations of Purchaser. The obligations Unless waived in writing by Purchaser, the obligation of Purchaser to consummate the transactions contemplated by this Agreement are subject to be consummated at the fulfillment Closing is conditioned upon fulfillment, at or written waiver, prior to or at before the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) All consents, approvals and authorizations required to be obtained prior to the Closing from governmental and regulatory authorities in connection with the performance and consummation of the transactions contemplated hereby, including the Regulatory Approvals, shall have been made or obtained, and shall remain in full force and effect, all waiting periods applicable to the consummation of the transactions contemplated hereby shall have expired or been terminated and all required regulatory filings shall have been made.
(b) No court or governmental or regulatory authority 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 which would result in a Material Adverse Effect, and no proceeding seeking the enactment of such a judgment, decree, injunction or other order shall have been announced or commenced.
(c) Each of the representations and warranties of Sellers Seller contained in ARTICLE IV of this Agreement shall be true in all respects when made and, as of the Closing Date, if specifically qualified by materiality, shall be true and correct (disregarding for in all respects and, if not so qualified, shall be true and correct in all material respects, with the purposes of same effect as though such determination any qualification as to materiality or Material Adverse Effect) representations and warranties had been made on and as of the Closing Date as if made on the Closing Date (except for that representations and warranties that speak are made as of a specific date or time, which representations and warranties shall need be true in all respects only on and correct only as of such date date); each of the covenants and agreements of Seller to be performed on or time), except prior to the extent that any breaches of such representations and warranties, individually or Closing Date shall have been duly performed in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effectall material respects.
(bd) Sellers Purchaser shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at received each of the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaserfollowing documents:
(i) a certificate executed as Resolutions of the Closing Date Board of Directors of Waccamaw Bank, certified by its Secretary or Assistant Secretary, authorizing the signing and delivery of this Agreement and all related documents and the consummation of the transactions contemplated hereby and thereby;
(ii) A certificate from the Secretary or Assistant Secretary of Waccamaw Bank as to the incumbency and signatures of officers;
(iii) A certificate signed by a duly authorized representative officer of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying Waccamaw Bank stating that the conditions set forth in Section 7.2(aSections 9.1(a), (b) and Section 7.2(b(c) have been satisfied;
(iiiv) Resolutions of the Equity Registration Rights AgreementBoard of Directors of Parent, duly executed certified by Parentits Secretary or Assistant Secretary, authorizing the signing and delivery of this Agreement and all related documents and the consummation of the transactions contemplated hereby and thereby;
(iiiv) stock certificates A certificate from the Secretary or membership interest certificates, if any, evidencing Assistant Secretary of Parent as to the Transferred Equity Interests (other than in respect incumbency and signatures of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed theretoofficers;
(ivvi) an omnibus xxxx A certificate signed by a duly authorized officer of saleParent stating that the conditions set forth in Sections 9.1(a), (b) and (c) have been satisfied;
(vii) A Xxxx of Sale and Instrument of Assignment and Assumption, signed by the Seller, substantially in the form of Exhibit A hereto;
(viii) A special warranty deed with appropriate documentary stamps affixed conveying each piece of Owned Real Property to the Purchaser subject to all matters of record in the public registries of the counties in which each of the Owned Real Property is located, together with such other instruments and documents as may be reasonably required by Purchaser’s title insurance company in order to meet its requirements to issue a commercial title insurance policy with respect to the Owned Real Property, and the Seller shall have filed or recorded (or provided to Purchaser for filing and recording) any and all documents necessary to duly vest an equitable title in the Owned Real Property in Purchaser;
(ix) An Assignment and Assumption of Leases in the form attached hereto as Exhibit P (9.1(d)(ix) - A transferring the “Xxxx of Sale”)leasehold interest in the Leased Real Property to Purchaser, together with transfer tax declarations such instruments and documents as may be reasonably required for the issuance of appropriate leasehold title insurance with respect to the Assumed Leases, and Seller shall have filed or recorded (or provided to Purchaser for filing and recording) any and all other instruments of conveyance that are documents necessary to effect transfer to Purchaser of title vest such leasehold interest in Purchaser, including Landlord’s Consent to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially Assignment in the form attached hereto as Exhibit Q (the “Assignment 9.1(d)(ix) - B and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially Landlord’s Estoppel Certificate in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii9.1(d)(ix) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;- C.
(x) all quitclaim deeds Such other bills of sale, assignments of management, maintenance, service or deeds without warranty (or equivalents servicing contracts, security deposits under leases, guaranties, warranties, utilities security deposits, and such other instruments and documents as Purchaser may reasonably require as necessary for those parcels transferring, assigning and conveying to Purchaser good, marketable and insurable title to the Assets free and clear of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted any Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed and permitting assumption of Liabilities by the appropriate SellerPurchaser;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate SellerThe Delivery Records;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real PropertyAn original, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly fully executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer counterpart of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and written Assumed Contract in effect on the Closing Date and, subject to Section 7.4, such consents as shall be required pursuant to the terms of any Assumed Contracts in connection with the assignments of such Assumed Contracts to Purchaser;
(xiii) A complete set of keys of the Branches, including but not limited to keys for all vaults and ATMs, appropriately tagged for identification and any vault manuals or specifications with respect to vaults and automated teller machines, if any;
(xiv) The Preliminary Closing Statement and the required Settlement Payment, if any;
(xv) Seller’s resignation as trustee or custodian, as applicable, with respect to each XXX included in the Assumed Deposits, and designation of the Purchaser as successor trustee or custodian with respect thereto, subject to Section 2.6;
(xvi) All documentation required to exempt Seller from the withholding requirement of Section 1445 of the Code, consisting of an affidavit from Seller to Purchaser that Seller is not a foreign person and providing Seller’s U.S. Taxpayer identification number;
(xvii) An assignment in recordable form reflecting the transfer and assignment to Purchaser of deeds of trust, mortgages, assignments of rents and profits and other real property related Designated Loan Documents of record in the real property records in applicable public registries (e.g. real property records in the offices of Registers of Deeds in North Carolina);
(xviii) An amendment to that certain Out Parcel Lease, dated July 13, 2006, between Seller and Gator Coastal Shopping Centre, LLC that effects a six-month extension to the term of the existing lease, with all other terms of such existing lease remaining in full force and effect; and
(xix) Evidence satisfactory, in the judgment of the Purchaser, that the provisions set forth in Section 2.10 cannot be nullified or materially changed by Seller or any third party during the Put Period.
(e) The following events or conditions shall be absent or shall not have occurred:
(i) Subject to Sections 5.14 and 7.1(b) above, there shall not have occurred any change in the business of the Branches that would be reasonably likely to result in a Material Adverse Effect, and no circumstances shall exist which, with the passage of time or otherwise, likely will result in any such Material Adverse Effect;
(ii) There shall not have been any significant damage to or destruction of the improvements located on the Real Property which (1) is not covered by property insurance (or a payment from Seller) in an amount necessary to fully repair such damage or destruction or replace the property destroyed with property of like kind and quality and the proceeds of which have been either used for such repair or replacement or assigned to Purchaser or (2) resolutions would materially interfere with its use as a bank branch; and
(iii) In the event that Seller has agreed to cure a Material Defect as provided in Section 7.12 above, such Material Defect shall have been corrected in the manner agreed upon by Purchaser and Seller.
(f) The form and substance of the board of directors of such Seller, authorizing the execution, delivery and performance of all legal matters described in this Agreement and the Ancillary Agreements or related to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as shall be reasonably acceptable to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)legal counsel.
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 3 contracts
Samples: Branch Purchase and Assumption Agreement, Branch Purchase and Assumption Agreement (Waccamaw Bankshares Inc), Branch Purchase and Assumption Agreement (First Bancorp /Nc/)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):
(a) Each of the representations and warranties of Sellers contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35)Interests, duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P O (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q P (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R Q (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S R (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T S (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U T (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V U (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V U or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X V (the “Master Lease Agreement”), duly executed by Parent;
(xvxiv) [Reserved]in the event the premises located at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxx is designated by Purchaser as an Excluded Real Property, a lease agreement for premises located in Grand Blanc, Michigan, substantially in the form attached hereto as Exhibit W (the “SPO Lease”), duly executed by Parent;
(xvixv) the Saginaw Service ContractsContract, if required, duly executed by the appropriate Seller;
(xviixvi) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviiixvii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xixxviii) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xxxix) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxixx) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxiixxi) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiiixxii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxivxxiii) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 3 contracts
Samples: Master Sale and Purchase Agreement, Master Sale and Purchase Agreement (General Motors Corp), Master Sale and Purchase Agreement
Conditions to Obligations of Purchaser. The Purchaser’s obligations of Purchaser to consummate effect the transactions contemplated by this Agreement Transaction are further subject to the fulfillment satisfaction or written waiver, waiver at or prior to or at the Closing, of each Closing of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the All representations and warranties of Sellers contained in ARTICLE IV of this Agreement made by Emmis and Mediaco shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of on the Closing Date as if made on the Closing Date except (except for i) where the failure of any representations and warranties that speak as of a specific date or time, which representations and warranties shall to be true and correct only as of such date (without regard to any materiality or time), except Material Adverse Effect qualification therein) would not reasonably be expected to the extent that any breaches of such representations and warrantiesresult in, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect., and (ii) representations and warranties that are made as of a specific date shall only be tested as of such date;
(b) Sellers All of the terms, covenants and conditions to be complied with or performed by Emmis and Mediaco under this Agreement on or prior to the Closing Date shall have been complied with or performed or complied by Emmis and Mediaco in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.respects;
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment No Order of any lease court or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease Governmental Authority shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on which restrains or prohibits the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaserits terms. No Proceeding by or before any Governmental Authority shall have been instituted or threatened (and not subsequently dismissed, settled or otherwise terminated) which would impose material restrictions, limitations or conditions with respect to Mediaco’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders ownership or use of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).Mediaco Assets;
(d) The UAW Collective Bargaining Agreement Initial Contribution shall have been ratified by the membership, completed;
(e) The SEC shall have been assumed by completed its review of the applicable Sellers Mediaco Form 10; provided, however, that to the extent the Parties reasonably agree that there are no material comments outstanding from the SEC on the Mediaco Form 10, the Parties will waive this Closing condition; and
(f) Mediaco and assigned Emmis shall have entered into and delivered to Purchaser, Purchaser the Transaction Agreements to which it or any of their respective Subsidiaries is a party and such agreements shall be in full force and effecteffect and no default thereunder shall be occurring.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 3 contracts
Samples: Contribution and Distribution Agreement (Mediaco Holding Inc.), Contribution and Distribution Agreement (Mediaco Holding Inc.), Contribution and Distribution Agreement (Emmis Communications Corp)
Conditions to Obligations of Purchaser. The obligations Unless waived in writing by Purchaser, the obligation of Purchaser to consummate the transactions contemplated by this Agreement are subject to be consummated at the fulfillment Closing is conditioned upon fulfillment, at or written waiver, prior to or at before the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) All consents, approvals and authorizations required to be obtained prior to the Closing from governmental and regulatory authorities in connection with the performance and consummation of the transactions contemplated hereby, including the Regulatory Approvals, shall have been made or obtained, and shall remain in full force and effect, all waiting periods applicable to the consummation of the transactions contemplated hereby shall have expired or been terminated and all required regulatory filings shall have been made.
(b) No court or governmental or regulatory authority 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 that could reasonably be expected to have a Material Adverse Effect, and no proceeding seeking such a judgment, decree, injunction or other order shall have been announced or commenced.
(c) Each of the representations and warranties of Sellers Seller contained in ARTICLE IV of this Agreement shall be true in all material respects when made and correct (disregarding for as of the purposes of Closing Date, with the same effect as though such determination any qualification as to materiality or Material Adverse Effect) representations and warranties had been made on and as of the Closing Date as if made on the Closing Date (except for that representations and warranties that speak are made as of a specific date or time, which representations and warranties shall need be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all only on and as of such date); each of the covenants and agreements and obligations required by this Agreement of Seller to be performed on or complied with by Sellers prior to the Closing Date shall have been duly performed in all material respects. For the purpose of determining the accuracy of a particular representation or at warranty under this subsection (c), the Closingmateriality qualifiers contained in such particular representation or warranty shall be disregarded.
(cd) Sellers Purchaser shall have delivered, or caused to be delivered, to Purchaserreceived each of the following documents:
(i) a certificate executed as Resolutions of Seller’s Board of Directors, certified by its Secretary or Assistant Secretary, authorizing the signing and delivery of this Agreement and all related documents and the consummation of the Closing Date transactions contemplated hereby and thereby;
(ii) A certificate from the Secretary or Assistant Secretary of Seller as to the incumbency and signatures of officers;
(iii) A certificate signed by a duly authorized representative officer of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying Seller stating that the conditions set forth in Section 7.2(aSections 9.1(a), (b) and Section 7.2(b(c) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx A Xxxx of saleSale and Instrument of Assignment and Assumption, signed by Seller, substantially in the form attached hereto as of Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate SellerA hereto;
(v) an omnibus assignment and assumption agreement, substantially in A special warranty deed with appropriate documentary stamps affixed conveying the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together Real Property to Purchaser with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory respect to the Parties and duly executed by the appropriate SellerReal Property;
(vi) a novation agreementSuch other bills of sale, substantially in assignments of management, maintenance, service or servicing contracts, security deposits under leases, guaranties, warranties, utilities security deposits, and such other instruments and documents as Purchaser may reasonably require as necessary for transferring, assigning and conveying to Purchaser good, marketable and insurable title to the form attached hereto as Exhibit R (the “Novation Agreement”)Assets free and clear of any Encumbrances, duly executed and permitting assumption of Liabilities by Sellers and the appropriate United States Governmental AuthoritiesPurchaser;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by SellersThe Delivery Records;
(viii) an omnibus intellectual property assignment agreementAn original, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly fully executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer counterpart of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and written Assumed Contract in effect on the Closing Date and (2) resolutions and, subject to Section 7.4, such consents as shall be required pursuant to the terms of any Assumed Contracts in connection with the board of directors assignments of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements Assumed Contracts to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a partyPurchaser;
(xxix) a certificate A complete set of keys of the Owned Branches, including but not limited to keys for all vaults and automated teller machines, appropriately tagged for identification and any vault manuals or specifications with respect to vaults and automated teller machines, if any;
(x) The Preliminary Closing Statement and the required Settlement Payment, if any;
(xi) Seller’s resignation as trustee or custodian, as applicable, with respect to each XXX included in compliance the Assumed Deposits, and designation of Purchaser as successor trustee or custodian with Treas. Reg. §1.1445-2(b)(2respect thereto, subject to Section 2.4; and
(xii) All documentation required to exempt Seller from the withholding requirement of Section 1445 of the Code, consisting of an affidavit from Seller to Purchaser that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaserproviding Seller’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effectU.S. taxpayer identification number.
(e) The UAW Retiree Settlement Agreement following events or conditions shall be absent or shall not have occurred:
(i) Subject to Sections 5.14 and 7.1(b) above, there shall not have occurred any material adverse change in the business of the Branches, and no circumstances shall exist which, with the passage of time or otherwise, likely will result in any such material adverse change;
(ii) There shall not have been any damage to or destruction of the Improvements located on the Real Property in an amount in excess of 10% of the portion of the Purchase Price attributed thereto on Schedule 2.1; and
(iii) In the event that Seller has agreed to cure a Material Defect as provided in Section 7.12 above, such Material Defect shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto corrected in the form previously distributed among themmanner agreed upon by Purchaser and Seller.
Appears in 3 contracts
Samples: Purchase and Assumption Agreement, Purchase and Assumption Agreement (CenterState Banks, Inc.), Purchase and Assumption Agreement (Fidelity Southern Corp)
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the The representations and warranties of Sellers contained in ARTICLE IV of this Agreement Section 3.05(b) and Section 3.08(b) shall be true and correct (disregarding for as of the purposes date of such determination any qualification as to materiality or Material Adverse Effect) this Agreement and as of the Closing Date as if made on restated at and as of the Closing Date (and in the case of each other representation and warranty contained in Article III, except for representations and warranties that speak as of a specific date or time, which representations and warranties shall any failure to be true and correct only as of such date or time), except to the extent that any breaches of such representations has not had and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, have a Material Adverse Effect, such representation or warranty (disregarding all materiality and Material Adverse Effect qualifications contained therein), shall be true and correct (i) as if restated on and as of the Closing Date or (ii) if made as of a date specified therein, as of such date, and Purchaser shall have received a certificate signed by a senior officer of Seller to such effect.
(b) Sellers shall have performed or complied The covenants, obligations and agreements contained in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior Seller on or before the Closing shall have been complied with in all material respects, except that Seller shall have complied in all respects with its obligations under Article II to be complied with by Seller on or at before the Closing, and Purchaser shall have received a certificate signed by a senior officer of Seller to such effect.
(c) Sellers Each of Seller and, if applicable, its Subsidiaries shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer delivered to Purchaser each of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller it is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement Purchaser shall have been ratified by obtained debt financing in the membership, shall have been assumed by the applicable Sellers and assigned to Purchaseramounts described in, and shall be in full force on the terms and effectconditions set forth in, the Debt Commitment Letter.
(e) The UAW Retiree Settlement Agreement Seller shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part received or obtained all Consents identified on Section 8.03(e) of the Sale Approval OrderSeller Disclosure Schedule.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 3 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Verisign Inc/Ca), Asset Purchase Agreement (TNS Inc)
Conditions to Obligations of Purchaser. The obligations Unless waived by Purchaser, the obligation of Purchaser to consummate close the transactions contemplated by this Agreement are herein shall be subject to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive additional conditions on or prior to the conditions contained in Section 7.2(d) or Section 7.2(e):Closing Date:
(a) Each Compost and the Company shall have performed in all material respects their agreements (including but not limited to the delivery by Compost and the receipt by Purchaser of all of the Closing Deliveries in Section 3.4(a)) contained in this Agreement required to be performed on or prior to the Closing Date;
(b) the representations and warranties of Sellers the Company and Compost contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for in all material respects on and as of the purposes of such determination any qualification as to materiality or Material Adverse Effect) date made and on and as of the Closing Date as if made on the Closing Date (except for representations at and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date;
(c) since the date hereof, there shall have been no changes that constitute, and no event or time), except to the extent that any breaches of such representations and warranties, individually events shall have occurred which have resulted in or in the aggregate, have not had, or would not reasonably be expected to haveconstitute, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(xd) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States)waivers, in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment consents and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are approvals from third parties necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment transfer of any lease material contracts, Permits, financial assurances and any other rights and benefits in connection with the transactions contemplated hereby, or sublease underlying a Leased Real Property that a separate assignment and assumption necessary for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement hereby shall have been obtained and such Ancillary Agreements be in effect at the Closing Date, including but not limited to the approval, if required, of the New Jersey Department of Environmental Protection and the matters set forth in Section 6.16(e)waivers, consents and (B) certifying as approvals listed on Schedules 4.3, 5.2 and 5.3 to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a partyAgreement;
(xxe) Purchaser shall have received a certificate in compliance executed by Compost with Treas. Reg. §1.1445-2(b)(2respect to (a) that each Seller is not a foreign person as defined under Section 897 of the Tax Codethrough (d) above;
(xxif) a certificate Compost shall have delivered to Purchaser the unaudited balance sheet and related statements of good standing for each Seller from the Secretary of State income and cash flows of the State Company as of Delaware;
(xxii) their written agreement to treat and for the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (includingquarter ending January 31, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness2000; and
(xxivg) all books there shall be no litigation or threats of litigation relating to the Company (except for litigation referenced in items 1 and records of Sellers described 2 on Schedule 5.8) or the transactions contemplated herein which may adversely affect the Company or the Purchaser as determined in Section 2.2(a)(xiv).good faith by the Purchaser;
(dh) The UAW Collective Bargaining the waiver with respect to the exchange rights under the Sharing Agreement shall have been ratified by the membership, be effective and Wasteco and Xxxxx shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by to the UAW and shall have been approved by the Bankruptcy Court as part Purchaser a waiver of all rights to acquire capital stock of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto Company in the form previously distributed among them.agreed by the parties;
(i) Compost shall have purchased and delivered evidence to the Purchaser of a tail/runoff officers' and directors' liability insurance policy insuring the Company and each officer and director entitled to indemnification from the Company with respect to acts and omissions occurring on or prior to the Closing Date with the terms set forth on Exhibit L; and
(j) The Company and Xxxxx shall have entered into the Amendment to the Security Agreement in the form of Exhibit M.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Compost America Holding Co Inc), Stock Purchase Agreement (Compost America Holding Co Inc), Stock Purchase Agreement (Compost America Holding Co Inc)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are Transaction shall be subject to the fulfillment or written waiverwaiver by Purchaser, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the representations Company Fundamental Representations shall be true and warranties correct in all respects at and as of Sellers the Closing. Each other representation and warranty of the Company contained in ARTICLE IV of this Agreement shall be true and correct in all respects (disregarding for in the purposes case of such determination any qualification as to materiality representation or warranty qualified by materiality, Material Adverse Effect) Effect or similar qualifications), or in all but de minimis respects (in the case of any other representation or warranty), in each case at and as of the Closing Date as if made on the Closing Date (except for such representations and warranties that speak are made as of a another specific date or time, which representations and warranties shall be required to be true and correct in all respects, or in all but de minimis respects, as applicable, only as of such date or timedate), except to and the extent that any breaches of such representations Company, Sellers and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers Seller Representative shall have performed or complied and satisfied in all material respects with all agreements agreements, covenants and obligations required by this Agreement to be performed and satisfied by the Company, Sellers or complied with by Sellers Seller Representative, as applicable, at or prior to or at the Closing.
(b) No Action shall have been commenced or threatened against the Company, Sellers or Seller Representative that seeks to enjoin or would prevent the Closing or would have a material impact on the Company or the Business. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as From the date of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights this Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including there shall not have occurred any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)Company Material Adverse Effect.
(d) The UAW Collective Bargaining Agreement All Third Party Consents set forth on Section 2.2(d)(vi) of the Company Disclosure Schedule have been delivered to Purchaser at or prior to the Closing, and no such Third Party Consents shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effectrevoked.
(e) The UAW Retiree Settlement Agreement Company shall have been executed and delivered by to Purchaser the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval OrderEstimated Closing Statement pursuant to Section 3.3(a)(i).
(f) An exemption from the registration requirements of the Securities Act shall be available to Purchaser for the issuance of the Purchaser Shares contemplated under this Agreement.
(g) The Canadian Operations Continuation Agreement Sellers shall have delivered to Purchaser each delivery set forth in Section 2.2(d).
(h) The Company shall have delivered to Purchaser an estoppel certificate for each Lease identified in Section 4.12 of the Disclosure Schedule, executed by the applicable landlord substantially in the form contemplated in the applicable Lease or, if no such form is contemplated therein, then upon a commercially reasonable form agreed to by the parties hereto.
(i) The Transaction Documents shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Purchaser.
(j) Purchaser’s sale of its MMTC License, including obtaining any regulatory approvals required to effectuate the sale.
(k) Purchaser shall have entered into the Bank Loan Amendment in form and substance reasonably satisfactory to Purchaser.
(l) Purchaser has received the opinion of Xxxxx & Xxxxx, Inc., or a similarly reputable valuation advisory provider, to the effect that, as of the date of this Agreement and based upon and subject to the qualifications and assumptions set forth therein, the Transaction is fair, from a financial point of view, to the holders of Purchaser Shares, and such opinion has not been withdrawn, revoked, or modified.
(m) Purchaser shall have entered into non-compete agreements with each of Xxxx Xxxxx, Xxxxx Xxxx and Xxxxx Xxxxx, in form previously distributed among themand substance reasonably acceptable to parties thereto.
(n) Floracann Supplements shall have transferred ownership of all of its non-THC assets to the Company, in a form reasonably acceptable to Purchaser.
(o) Evidence reasonably satisfactory to Purchaser of completion of the CAT Related Internal Transaction.
(p) Evidence reasonably satisfactory to Purchaser of termination of all oral agreements with Nursery.
(q) Evidence reasonably satisfactory to Purchaser of assignment to the Company of all items included on Section 4.11(a) of the Company Disclosure Schedule.
(r) The Amended and Restated Lease remains in full force and effect in accordance with its terms.
Appears in 3 contracts
Samples: Membership Interest Purchase Agreement (Planet 13 Holdings Inc.), Membership Interest Purchase Agreement (Planet 13 Holdings Inc.), Membership Interest Purchase Agreement (Planet 13 Holdings Inc.)
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are Closing is subject to the fulfillment or written waiver, prior to or at the Closing, of each satisfaction of the following further conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each (i) Sellers shall have performed in all material respects all of their obligations hereunder required to be performed by them at or prior to the Closing Date (including their obligations set forth in Section 4.02), (ii) the representations and warranties of Sellers contained in ARTICLE IV of this Agreement and in any certificate or other writing delivered by Sellers pursuant thereto, disregarding all qualifications and exceptions contained therein relating to materiality, shall be true at and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date respective dates applicable to each of them as if made on set forth herein, and (iii) Purchaser shall have received a certificate signed by the Closing Date (except for representations and warranties that speak as President of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except the Corporation to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effectforegoing effects.
(b) Sellers No proceeding challenging this Agreement or the transactions contemplated hereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have performed been instituted by any person before any court, arbitrator or complied in all material respects with all agreements and obligations required by this Agreement to governmental body, agency or official nor shall they be performed or complied with by Sellers prior to or at the Closingpending.
(c) Sellers Purchaser shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree received all documents it may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms request relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment existence of and assumption good standing of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)Corporation.
(d) The UAW Collective Bargaining Agreement Corporation shall have been ratified by issued an owner's title insurance policy with respect to all real or immovable property in a form and only with such exceptions as are reasonably acceptable to Purchaser. The cost of the membership, owner's title insurance policy shall have been assumed by the applicable be borne equally between Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part Nothing has come to Purchaser's attention which would indicate that any of the Sale Approval Orderrepresentations and warranties of Sellers are untrue in any material respect or that Sellers have failed to perform any of their covenants contained herein.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Gulf Island Fabrication Inc), Stock Purchase Agreement (Gulf Island Fabrication Inc), Stock Purchase Agreement (Gulf Island Fabrication Inc)
Conditions to Obligations of Purchaser. The obligations of PCT and Purchaser to consummate effect the transactions contemplated by this Agreement are further subject to the fulfillment satisfaction at or written waiver, prior to or at the Closing, of each Closing of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the The representations and warranties of Sellers contained Seller in ARTICLE IV of this Agreement shall be true and correct (disregarding for in all material respects as of the purposes of such determination any qualification as to materiality or Material Adverse Effect) date hereof and at and as of the Closing Date with the same effect as if though such representations and warranties had been made on the Closing Date (except for at and as of such time, other than representations and warranties that speak as of a specific date or time, time (which representations and warranties shall need only be true and correct only in all material respects as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.;
(b) Sellers Seller and the Company shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed by them under this Agreement at or complied with by Sellers prior to or at the Closing.;
(c) Sellers Purchaser shall have deliveredreceived certificates, or caused to be delivereddated the Closing Date, to Purchaser:
from (i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”)Company, duly executed by the appropriate Seller;
Company, (xiii) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”)Flavors, duly executed by the appropriate Flavors and (iii) Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by HarlemSeller, to the effect of (a) and (b) above;
(xivd) an omnibus lease agreement in respect All authorizations, Permits, consents, orders or approvals of, or declarations or filings with, or expirations or terminations of waiting periods (including the lease of certain portions of waiting period under the Excluded Real Property that is owned real propertyHSR Act) imposed by, substantially in the form attached hereto as Exhibit X any Governmental Entity, and all third party consents (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a partycollectively, the consummation of "Authorizations") necessary to effect the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membershipAgreement, shall have occurred, been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.filed or been obtained;
(e) The UAW Retiree Settlement Agreement Seller shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part or caused to be delivered to Purchaser each of the Sale Approval Orderitems specified in Section 1.5 hereof.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 2 contracts
Samples: Stock and VSR Purchase Agreement (Mafco Consolidated Group Inc), Stock and VSR Purchase Agreement (Mafco Consolidated Group Inc)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate purchase the transactions contemplated by this Agreement are Securities shall be subject to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):
(a) Each accuracy of the representations and warranties on the part of Sellers the Company contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) herein as of the Closing Date as if made on Execution Time and the Closing Date Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of their obligations hereunder and to the following additional conditions:
(except for representations and warranties that speak as a) The Registration Statement shall have become effective; if filing of a specific date the Prospectus, or timeany supplement thereto, which representations and warranties shall be true and correct only as of such date or timeis required pursuant to Rule 424(b), except to the extent that Prospectus, and any breaches of such representations and warrantiessupplement, individually or will be filed in the aggregate, manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have not had, been issued and no proceedings for that purpose shall have been instituted or would not reasonably be expected to have, a Material Adverse Effectthreatened.
(b) Sellers At the Execution Time and at the Closing Date, the Company shall have performed or complied furnished to Purchaser certificates of the Company, dated respectively as of the Execution Time and the Closing Date and signed by any two executive officers of the Company, to the effect that the signers of such certificates have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects at and as of the Execution Time or on and as of the Closing Date, as the case may be, with the same effect as if made at the Execution Time or on the Closing Date, as the case may be, and the Company has complied with all the agreements and obligations required by this Agreement satisfied all the conditions on its part to be performed or complied with by Sellers satisfied at or prior to the Execution Time or at Closing Date, as applicable;
(ii) no stop order suspending the Closingeffectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business, business prospects or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus or the documents incorporated by reference therein (exclusive of any supplement thereto).
(c) Sellers Subsequent to the Execution Time or, if earlier, the date as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have deliveredbeen any change, or caused to be deliveredany development involving a prospective change, to Purchaser:
in or affecting the business (iincluding the results of operations or management) a certificate executed as or properties of the Closing Date Company and its subsidiaries the effect of which is, in the reasonable judgment of Purchaser, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by a duly authorized representative the Registration Statement (exclusive of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(aany amendment thereof) and Section 7.2(b) have been satisfied;
the Prospectus (ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment exclusive of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xivsupplement thereto).
(d) The UAW Collective Bargaining Agreement Company shall have been ratified by commenced mailing the membershipSubscription Certificates to record holders of the Common Stock promptly following the authorization and approval of the issuance of the Common Stock which may be issued pursuant to the Rights Offering and the terms hereof and shall have completed such mailing expeditiously, and shall have offered the Common Stock for subscription in accordance with the terms and under the conditions set forth in the Prospectus. The Company shall have advised Purchaser daily during the period when the Rights are exercisable of the number of shares of Common Stock subscribed for, and prior to 12:00 Noon, New York City time, on the business day following the Expiration Date, shall have been assumed by advised Purchaser of the applicable Sellers number of shares of Common Stock subscribed for and assigned to Purchaser, and shall be in full force and effectof the number of Securities.
(e) The UAW Retiree Settlement Prior to the Closing Date, the Company shall have furnished to Purchaser such further information, certificates and documents as Purchaser may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the certificates mentioned above or elsewhere in this Agreement shall have been executed not be in all material respects reasonably satisfactory in form and delivered substance to Purchaser and its counsel, this Agreement and all obligations of Purchaser hereunder may be canceled at, or at any time prior to, the Closing Date by Purchaser. Notice of such cancellation shall be given to the UAW and shall have been approved Company in writing or by the Bankruptcy Court as part of the Sale Approval Ordertelephone or telegraph confirmed in writing.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 2 contracts
Samples: Standby Purchase Agreement (Harken Energy Corp), Standby Purchase Agreement (Harken Energy Corp)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are Transactions shall be subject to the fulfillment fulfillment, at or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that any of which may be waived in no event may writing by Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):its sole discretion:
(a) Each of The Fundamental Representations, without giving effect to any limitation or qualification as to “materiality” (including the representations and warranties of Sellers contained in ARTICLE IV of this Agreement word “material”) or “Material Adverse Effect” set forth therein, shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) in all but de minimis respects both when made and at and as of the Closing Date as if made on Date, or in the Closing Date (except for case of representations and warranties that speak are made as of a specific date or timespecified date, which such representations and warranties shall be true and correct only in all but de minimis respects at and as of such date or timespecified date, and (ii) the representations and warranties of the Acquired Companies and Sellers contained in Article III and Article IV (other than Fundamental Representations), except without giving effect to any limitation or qualification as to “materiality” (including the extent word “material”) or “Material Adverse Effect” set forth therein, shall be true and correct both when made and at and as of the Closing Date, or in the case of representations and warranties that any breaches are made as of a specified date, such representations and warrantieswarranties shall be true and correct at and as of such specified date, individually or except where all such breaches and inaccuracies have not, in the aggregate, have not had, or would not reasonably be expected to have, resulted in a Material Adverse Effect.
(b) The Acquired Companies, Sellers’ Representative and Sellers shall have performed or in all material respects all obligations and agreements and complied with in all material respects with all agreements covenants and obligations conditions required by this Agreement to be performed or complied with by Sellers it prior to or at the Closing.
(c) Sellers Since the date of this Agreement, there shall have deliveredbeen no Material Adverse Effect.
(d) Purchaser shall have received an executed counterpart of each of the Transaction Documents, signed by each party thereto other than Purchaser.
(e) Purchaser shall have received from Sellers’ Representative a certificate to the effect that the conditions set forth in Section 7.03(a), Section 7.03(b) and Section 7.03(c) have been satisfied, signed by a duly authorized officer thereof.
(f) At or caused prior to the Closing, Sellers’ Representative shall deliver or shall cause to be delivered, delivered to Purchaser:
(i) a certificate executed as certificates or other equivalent instruments of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) transfer representing the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35)Interests, duly endorsed in blank or accompanied by duly executed stock powers or duly executed assignments of non-certificated Equity Interests;
(or similar documentationii) a certificate of each Seller, dated as of the Closing Date and duly endorsed executed in blankaccordance with Treasury Regulations Section 1.1445-2(b)(2), and Section 1446(f) if and to the extent applicable, in proper form the reasonable satisfaction of Purchaser certifying under penalties of perjury that such Seller is not a “foreign person” or “disregarded entity” for transfer U.S. federal income tax purposes;
(iii) such payoff letters or termination agreements from each holder of Indebtedness of the Acquired Company Entities set forth on Schedule 7.03(f)(iii) as Purchaser shall have reasonably requested to Purchaserenable the Acquired Company Entities, including any required stamps affixed theretoor Purchaser on behalf of such Acquired Company Entities, to repay such Indebtedness at or prior to the Closing;
(iv) an omnibus xxxx final written invoices (including wire instructions) from the payees of salecertain Company Transaction Expenses, substantially in the form attached hereto as Exhibit P delivered no later than three (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title 3) Business Days prior to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate SellerClosing Date;
(v) an omnibus assignment the written resignations effective as of the Closing Date of such directors, managers and assumption agreementofficers of the Acquired Company Entities as requested by Purchaser to resign, substantially in the form attached hereto as Exhibit Q such specification shall be provided by Purchaser no later than five (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory 5) Business Days prior to the Parties and duly executed by the appropriate SellerClosing Date;
(vi) a novation agreementevidence of the full settlement of all intercompany accounts receivable and accounts payable between the Acquired Company Entities, substantially in on the form attached hereto as Exhibit R one hand, and each Seller and such Seller’s Affiliates (other than the “Novation Agreement”Acquired Company Entities), duly executed by Sellers and on the appropriate United States Governmental Authoritiesother hand;
(vii) a government related subcontract agreementevidence, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”)and substance reasonably satisfactory to Purchaser, duly executed by Sellersthat each Lease or other agreement set forth on Schedule 3.23 marked with an asterisk has been terminated and that no further payments are due or obligations exist thereunder;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer the secretary of each Seller (A) the Acquired Companies certifying that attached to such certificate are as true and complete copies correct and dated as of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2a) the certificate of incorporation or certificate of formation of each of the Acquired Company Entities, (b) the bylaws, operating agreement or limited liability company agreement of each of the Acquired Company Entities, (c) the resolutions of each of the Acquired Companies’ board of directors of (or similar governing body) approving the execution and delivery by such Seller, authorizing the execution, delivery and performance Acquired Company of this Agreement and the Ancillary Agreements to which other Transaction Documents, the performance by such Seller is a partyAcquired Company of its obligations hereunder and thereunder, and the consummation of the transactions contemplated by this Agreement Transactions, and that such Ancillary Agreements resolutions are in full force and effect and are all of the matters set forth resolutions adopted in Section 6.16(e)connection with the Transactions, and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxid) a certificate of good standing for of each Seller of the Acquired Company Entities from the Secretary of State of the State such entity’s state of Delaware;
organization dated within ten (xxii10) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory days prior to the Parties and duly executed by the holders of the secured IndebtednessClosing Date; and
(xxivix) all books and records of Sellers described in any Section 2.2(a)(xiv).
(d338(h)(10) Forms reasonably requested by Purchaser. The UAW Collective Bargaining Agreement Reorganization shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court materially consummated as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.set forth on Schedule B.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Infrastructure & Energy Alternatives, Inc.), Equity Purchase Agreement (Infrastructure & Energy Alternatives, Inc.)
Conditions to Obligations of Purchaser. The obligations obligation -------------------------------------- of Purchaser to consummate the transactions contemplated by this Agreement are Transaction is subject to the fulfillment satisfaction at or written waiver, prior to or at the Closing, Closing of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Purchaser shall have satisfactorily completed its due diligence inquiry into the business affairs and financial condition of the Business, and shall have received satisfactory assurances that it will enjoy continued customer and employee relationships with existing customers and employees of the Business.
(b) Each of the representations and warranties of Sellers contained in ARTICLE IV of this Agreement and Venturers shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with as of, and shall not have been violated in any material respect at, the Closing as though made on and as of the Closing; Sellers and Venturers shall, on or before the Closing, have performed in all agreements and material respects all of their obligations required by under this Agreement which by the terms hereof are to be performed on or complied with by Sellers prior to or at before the Closing, and Sellers and Venturers shall have delivered to Purchaser a certificate dated as of the date of the Closing to the foregoing effect.
(c) Sellers No action or proceeding by or before any court or other governmental body shall have deliveredbeen instituted by any governmental body or other person or entity or threatened in writing which seeks to restrain, prohibit or caused invalidate the Transaction or which would have a material adverse effect on Purchaser's ability to be deliveredconduct the Business as presently conducted or which claims material damages from Purchaser, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that Venturers or the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in Business with respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)Transaction.
(d) The UAW Collective Bargaining Agreement Corporation shall have been ratified by delivered to Purchaser a certificate of its Secretary certifying as to the membership, shall have been assumed by requisite corporate or other action authorizing the applicable Sellers Transaction and assigned to Purchaser, and shall be in full force and effectincumbency of its officers.
(e) The UAW Retiree Settlement Agreement Sellers shall have been executed and delivered by obtained all necessary third party consents to the UAW and shall have been approved by Transaction from the Bankruptcy Court as part of the Sale Approval Order.parties set forth on Schedule 6.1(e) hereto. ---------------
(f) The Canadian Operations Continuation Agreement Purchaser shall have been received any regulatory approvals required by applicable laws.
(g) Purchaser shall have received a fully executed and delivered by copy of the parties thereto Release substantially in the form previously distributed among them.of Exhibit D hereto. ---------
(i) Xxxx X. Xxxxxxx shall have entered into the Employment Agreement substantially in the form of Exhibit B hereto. ---------
Appears in 2 contracts
Samples: Asset Purchase Agreement (Graphic Industries Inc), Asset Purchase Agreement (Graphic Industries Inc)
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the Closing is subject to the satisfaction (or waiver in writing by Purchaser) of the following conditions:
(a) (i) Seller shall have performed all of its obligations hereunder required to be performed by it at 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 shall be true at and as of the Closing Date as if made as of that date, (iii) Seller shall have delivered or caused to be delivered to Purchaser all of the items specified in Section 7.02, in each case in form and substance satisfactory to Purchaser and (iv) Purchaser shall have received a certificate signed by the President of Seller to the foregoing effect.
(b) 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 court, arbitrator or Governmental Authority nor shall any such proceeding be pending.
(c) There shall have not occurred any events or developments, individually or in the aggregate, resulting in a Material Adverse Effect with respect to Seller.
(d) All material written consents, assignments, waivers or authorizations, including, without limitation, all Permits, shareholder approvals that are required as a result of the transactions contemplated by this Agreement or the continuation in full force and effect of the Contracts and the Business shall have been obtained.
(e) The form and substance of all actions, proceedings, instruments, documents and other deliverables required to consummate the transactions contemplated by this Agreement are subject to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):
(a) Each of the representations and warranties of Sellers contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned satisfactory in all reasonable respects to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order’s counsel.
(f) The Canadian Operations Continuation Agreement auditor performing the audit pursuant to Section 6.05 must provide an unqualified opinion.
(g) Seller shall have been executed and delivered by to Purchaser a certificate to the parties thereto effect that each of the conditions specified in this Section 7.05 is satisfied in all respects.
(h) Purchaser shall have obtained subscriptions from the form previously distributed among themInvestors to purchase shares of Purchaser’s common stock, $0.001 par value, at a price of $0.20 per share, in an aggregate amount of at least $1,000,000 pursuant to a private placement under Section 4(2) of the Securities Act or Rule 506 of Regulation D (“Regulation D”) promulgated thereunder (the “Subsequent Financing”).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Argo Digital Solutions Inc), Asset Purchase Agreement (rVue Holdings, Inc.)
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are is subject to the fulfillment satisfaction or written waiver, prior to or at the Closing, of each waiver of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the representations and warranties of Sellers contained set forth in ARTICLE IV of this Agreement Section 2 shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) in all material respects as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.Date;
(b) Sellers shall have performed or and complied with all their covenants hereunder in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at through the Closing.Closing Date;
(c) there shall not be any injunction, judgment, order, decree or ruling in effect preventing consummation of any of the transactions contemplated by this Agreement;
(d) Sellers shall have delivered, or caused delivered to be delivered, to Purchaser:
(i) Purchaser a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially Certificate in the form attached hereto as Exhibit P C;
(the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title e) to the Purchased Assetsextent that Sellers have previously granted security interests to the Funds with respect to the Partnership Interests, Sellers shall have delivered to Purchaser, with respect to each such Partnership Interest, a copy of a termination statement evidencing the termination of the applicable Fund's security interest in a form such Partnership Interest or such other documentation reasonably satisfactory to Purchaser which evidences that the Parties and duly executed by the appropriate Sellersecurity interest has been terminated;
(vf) an omnibus assignment each of the required Consents shall have been obtained and assumption agreementappropriate documentation, substantially in each case in the form specified by the respective Fund Agreement and otherwise in form and substance reasonably satisfactory to Purchaser, shall have been executed by all relevant parties to effect the transfer of the Partnership Interests to Purchaser and the admission of Purchaser as a substitute limited partner in each Fund; and
(g) Sellers shall have delivered to Purchaser a Certificate of Non-Foreign Status in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.D.
Appears in 2 contracts
Samples: Merger Agreement (Echelon International Corp), Purchase Agreement (Echelon International Corp)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate effect the transactions contemplated to be performed by this Agreement are it at the Closing are, at the option of Purchaser, subject to the fulfillment satisfaction at or written waiver, prior to or at the Closing, of each Closing of the following additional conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of All the representations and warranties of Sellers contained Seller set forth in ARTICLE Article IV of this Agreement hereof shall be true on and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date as if made on and Seller shall have delivered to Purchaser a certificate to such effect dated the Closing Date (except for representations and warranties that speak as signed by the President or a Vice President of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse EffectSeller.
(b) Sellers shall have performed or complied in all material respects with all agreements All of the terms, covenants and obligations required by conditions of this Agreement to be performed or complied with and performed by Sellers Seller at or prior to the Closing shall have been duly complied with and performed, and Seller shall have delivered to Purchaser a certificate to such effect dated the Closing Date and signed by the President or at the Closinga Vice President of Seller.
(c) Sellers Purchaser shall have deliveredreceived from Fenwick & West, or caused LLP, counsel to be deliveredSeller, to Purchaser:an opinion dated the Closing Date and substantially in the form of Exhibit M hereto.
(d) Purchaser and Seller shall have entered into (i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
Cross-License Agreement; (ii) the Equity Registration Rights Agreement, duly executed by Parent;
Milpitas License; (iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
Irvine License; (iv) an omnibus xxxx of sale, the Volume Purchase Agreement; (v) the Board Manufacturing Agreement; (vi) the Chip Manufacturing Agreement; (vii) the Investor's Rights Agreement; and (viii) the Bill xx Sale.
(e) Purchaser and Seller shall have entered into that certain Consulting Services Agreement substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;N.
(vf) an omnibus assignment Purchaser and assumption agreement, a representative of Seller shall have entered into that certain Board Observer Confidentiality Agreement substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;O.
(vig) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside Purchaser shall have completed its due diligence investigation of the United States), in customary form, subject only Fibre Channel Products and their related business to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)its reasonable satisfaction.
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 2 contracts
Samples: Asset Acquisition Agreement (Jni Corp), Asset Acquisition Agreement (Jni Corp)
Conditions to Obligations of Purchaser. The obligations of the Purchaser to consummate effect the transactions contemplated by this Agreement are Merger Financing Closing and the Tranche II Closing shall be subject to the fulfillment satisfaction at or written waiver, prior to or at the Merger Financing Closing and the Tranche II Closing, respectively, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(ai) Each of the The representations and warranties of Sellers the Company and Neutron contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the date of this Agreement and the Merger Financing Closing Date or the Tranche II Closing Date, as applicable, as if made on such date, except to the Closing Date (except for extent such representations and warranties that speak are specifically made as of a specific particular date or time, (in which case such representations and warranties shall be true and correct only as of such date or timedate), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.;
(bii) Sellers The Company shall have performed or and complied in all material respects with all covenants and agreements and obligations required by this Agreement to be performed or complied with by Sellers it prior to the Merger Financing Closing or at the Tranche II Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parentapplicable;
(iii) stock certificates or membership interest certificates, if any, evidencing Between the Transferred Equity Interests (other than in respect date of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited this Agreement and the Delayed Merger Financing Closing EntitiesDate or Tranche II Closing Date, which as applicable, nothing shall have occurred that has had or could be reasonably expected to have a Material Adverse Effect on the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank Company or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed theretoNeutron;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title All conditions to the Purchased Assets, each in a form reasonably satisfactory to closing of the Parties Merger under the Merger Agreement shall have been satisfied and duly executed fulfilled and the Merger shall have closed and been consummated by the appropriate Sellerparties thereto;
(v) an omnibus assignment All Transaction Agreements shall remain in full force and assumption agreement, substantially effect and the Company and Neutron shall not be in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments default of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Sellerany obligation thereunder;
(vi) a novation agreementAll warrants to acquire common stock of Neutron held by RMB, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”)whether issued or not, duly executed by Sellers and the appropriate United States Governmental Authoritiesshall have been cancelled;
(vii) a government related subcontract agreementThe Company shall have received all approvals necessary to consummate the Merger and the Merger Financing, substantially in including the form attached hereto approval of the Board of Directors of the Company, the Company Stockholder Approval and the approval of the Acquisition Shares or the Tranche II Shares, as Exhibit S (the “Government Related Subcontract Agreement”)applicable, duly executed by Sellersfor trading on NASDAQ, subject to official notice of issuance;
(viii) an omnibus intellectual property assignment agreementThe Company shall deliver or cause to be delivered to the Purchaser certificates evidencing the Acquisition Shares or the Tranche II Shares, substantially as applicable, duly authorized, issued, fully paid and non-assessable, registered in the form attached hereto name of the Purchaser or as Exhibit T (designated by the “Intellectual Property Assignment Agreement”), duly executed by SellersPurchaser;
(ix) a transition services agreementThe Company and Neutron shall be in compliance with the Company Budget and the Neutron Budget, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;respectively.
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels The Company shall have provided a favorable legal opinion of Owned Real Property located in jurisdictions outside of counsel to the United States)Company, in a form satisfactory to Purchaser, which shall include opinions in respect of customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Sellercorporate and securities laws matters;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption The Company shall have provided certificates of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an senior officer of each Seller of the Company and Neutron, in form and substance satisfactory to the Purchaser, certifying as follows:
(A) certifying that attached to such certificate is a true and complete copy of the certificate of incorporation and bylaws, as amended, of the Company and each of its Subsidiaries or Neutron and each of its Subsidiaries, as applicable, including any and all certificates of designation;
(B) that attached thereto are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Sellerthe Company or Neutron, as applicable, authorizing the execution, delivery and performance of this Agreement and the Ancillary other Transaction Agreements to which such Seller it is a party, instruments and certificates required to be executed by it in connection herewith and approving the consummation of the transactions in the manner contemplated hereby and thereby including, with respect to the Company, the authorization and issuance of the Shares; and
(C) the names and true signatures of the officers and directors of the Company or Neutron, as applicable, signing Transaction Agreements to which it is a party in connection with the Merger Financing Closing or Tranche II Closing, as applicable;
(xii) The Company shall have provided to Purchaser a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company dated as of the Closing Date certifying that the Company has so complied in all material respects with its covenants herein, that the Company is in compliance with all laws and regulations (including with respect to corporate and securities matters) except as would not reasonably be expected to have a Material Adverse Effect on the Company, and that, with respect to the Company, all material information regarding the Company, the Merger and related transactions has been disclosed to Purchaser and has been publicly disclosed;
(xiii) Neutron shall have provided to Purchaser a certificate of two officers dated as of the Merger Financing Closing Date or the Tranche II Closing Date, as applicable, certifying that Neutron has complied with its covenants herein, that Neutron is in compliance with all laws and regulations (including with respect to corporate and securities matters) except as would not reasonably be expected to have a Material Adverse Effect on Neutron, and that, with respect to Neutron all material information regarding Neutron, the Merger and related transactions has been disclosed to Purchaser and has been publicly disclosed;
(xiv) Each of the Company, Neutron and RMB shall have performed and complied in all material respects with all covenants and agreements required by any Transaction Agreement to which any of them is a party to be performed or complied with by it prior to the Merger Financing Closing or Tranche II Closing, as applicable;
(xv) Any consents, waivers, permits, orders and approvals of any governmental authority and the expiry of any waiting periods, in connection with, or required to permit, the consummation of the transactions transaction contemplated by this the Merger Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e)this Agreement, and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtednessshall have been obtained or satisfied; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(dxvi) The UAW Collective Bargaining RMB Loan shall be repaid and terminated in accordance with the RMB Agreement and all liens and encumbrances on property or assets of Neutron shall be terminated and released. The foregoing conditions precedent are for the exclusive benefit of Purchaser and may be waived, in whole or in part, by Purchaser in writing at any time, in which event the Parties shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part no further liability. If any of the Sale Approval Ordersaid conditions shall not be complied with or waived by Purchaser on or before August 22, 2012, then the Purchaser may rescind and terminate its obligations to purchase the Acquisition Shares and the Tranche II Shares pursuant to this Agreement by written notice to the Company.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 2 contracts
Samples: Investment Agreement (Resource Capital Fund v L.P.), Investment Agreement (Uranium Resources Inc /De/)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate effect the transactions contemplated by this Agreement are Closing shall be subject to the fulfillment satisfaction (or written waiver, prior in whole or in part, to or at the Closingextent permitted by applicable Law, by Purchaser) on and as of the Closing Date of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the The representations and warranties of Sellers contained in ARTICLE IV of this Agreement Seller shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.all material respects;
(b) Sellers Seller shall have performed delivered or complied in all material respects with all agreements and obligations required by this Agreement caused to be performed delivered all documents required to be delivered by Seller at or complied with by Sellers prior to or at the Closing.Closing under the terms of this Agreement;
(c) Sellers shall have delivered, or caused Seller has arranged to be delivereddelivered to Purchaser the tax advice of Clixxxxx Xxance US LLP, counsel for Seller, addressing a modification to Purchaser:
(i) a certificate executed as of the Closing Date tax guidelines utilized by a duly authorized representative of Sellers, on behalf of Sellers and not Asset Manager in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate SellerB;
(vd) Seller shall have delivered or caused to be delivered to Purchaser an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory Amendment to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreementAsset Management Agreement, substantially in the form attached hereto dated as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States)date hereof, in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment between Asset Manager and assumption of the leases and subleases underlying the Leased Real PropertyPurchaser, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxive) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement Seller shall have been ratified by delivered or caused to be delivered to Purchaser a certificate of the membershipSecretary or Assistant Secretary, shall have been assumed by as of the applicable Sellers Closing Date, of each of Seller, CLO Issuer and assigned to PurchaserAsset Manager certifying (i) the Organizational Documents, (ii) good standing under the Laws of the jurisdiction of its formation, (iii) the consent, resolution or minutes of the members, shareholders, board of trustees or board of directors, as applicable, and shall be in full force (iv) the names and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part signatures of the Sale Approval Orderofficers authorized to sign this Agreement and any other documents required to be delivered under the terms of this Agreement.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Hunt Companies Finance Trust, Inc.), Membership Interest Purchase Agreement (Five Oaks Investment Corp.)
Conditions to Obligations of Purchaser. The obligations As an additional condition to the obligation of Purchaser to consummate the transactions contemplated hereby (which condition may be waived, in whole or in part, by this Agreement are subject Purchaser in writing and shall be deemed to have been waived in whole if the fulfillment or written waiverClosing occurs), prior to or at the Closing, of each of Purchaser must have received the following conditions; provideddocuments, however, that in no event may Purchaser waive dated the Closing Date (unless another date is identified) and the following conditions contained in Section 7.2(d) or Section 7.2(e):must have been satisfied:
(a) Each A copy, certified by an authorized officer of Seller, of resolutions of the board of directors and shareholders of Seller authorizing the execution, delivery and performance of this Agreement and all other agreements, documents and instruments relating hereto and the consummation of the transactions contemplated hereby;
(b) A certificate executed by an authorized officer of Seller to the effect that all of Seller’s representations and warranties of Sellers contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) Transaction Agreements are accurate in all material respects as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak unless made as of a specific date another date) and that all of the covenants and obligations that Seller is required to perform or time, which representations to comply with pursuant to this Agreement and warranties shall be true and correct only as of such date the Transaction Agreements at or time), except prior to the extent that any breaches of such representations Closing have been duly performed and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied with in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.respects;
(c) Sellers shall have deliveredA bxxx of sale for the Acquired Assets and an assignment and assumption agreement for the Assumed Contracts, or caused to be delivered, each in form and substance reasonably satisfactory to Purchaser:, covering items of tangible and intangible personal property included in the Acquired Assets and transferring Seller’s rights, duties and obligations in the Assumed Contracts to Purchaser;
(d) A general warranty deed for the Owned Real Property;
(e) The Trademark License;
(f) The Compound Supply Agreement;
(g) The Know-How License;
(h) The Transition Services Agreement;
(i) a certificate executed The Raw Materials Supply Agreement;
(j) The Bead Supply Agreement;
(k) The Steel Fabric Supply Agreement;
(l) The Master Distributorship Agreement;
(m) The consents set forth on Schedule 6.2(m);
(n) Such further documents and instruments of sale, transfer, conveyance, assignment or delivery covering the Acquired Assets or any part thereof as Purchaser may reasonably require to assure the sale and assignment of the Acquired Assets as contemplated by this Agreement;
(o) Purchaser shall have completed its due diligence investigation of the Acquired Assets and shall not have discovered any fact, circumstance, transaction or event of which Purchaser did not have notice as of the Closing Date by date hereof and that constitutes a duly authorized representative material breach of Sellers, on behalf the representations and warranties of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions Seller set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellersherein; provided, however, that Purchaser shall not be entitled to rely on the condition set forth in this Section 6.2(o) at any time after the date that is twenty (20) days after the date of this Agreement; provided, further, that the foregoing limitations shall not apply to the extent that (i) Seller has not complied, in all material respects, with its obligations under Section 5.15 hereof and (ii) Purchaser has provided Seller with prior written notice of, and a reasonable opportunity to cure, such non-compliance. For purposes of the preceding sentence “material breach” shall mean facts, circumstances, transactions or events, including a claim under or relating to Environmental Law, which alone or in the aggregate would, or would reasonably be expect to equal or exceed One Million Dollars ($1,000,000). If, prior to Closing, Purchaser delivers written notice to Seller claiming that Seller has failed to cooperate with Purchaser, (which notice shall set forth in detail the claimed failure to cooperate), and if it Seller fails or refuses to cure such claim within five (5) business days of receipt of such notice, then Purchaser may deliver a second written notice to Seller terminating this Agreement effective upon delivery of said second notice, and thereupon, Purchaser shall have no obligation or liability under this Agreement for said termination; and
(p) A certificate from each of Pxxx Xxxxxxx, Jxx Xxxxxxx, Sxxxx Xxxxxx and Kxxxx Xxxxxxxxx attesting and verifying that such individual is required for the assumption and assignment not aware of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption breach of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption any of the lease in respect representations and warranties of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto Seller as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency 4 of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)Agreement.
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Titan International Inc), Asset Purchase Agreement (Titan International Inc)
Conditions to Obligations of Purchaser. The Each and every obligation of Purchaser under this Agreement, (except for the obligations of Purchaser to consummate be fulfilled prior to the Closing Date and obligations that survive termination of this Agreement), shall be subject to the satisfaction, on or before the Closing Date, of each of the conditions set forth in this Section 5.2, unless waived in writing by Purchaser.
(a) The Company shall have obtained at its own expense (and shall have provided copies thereof to Purchaser) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, as contemplated by Section 4.2, with respect to Governmental Entities, which are required on the part of the Company, except for any waivers, permits, approvals, licenses or other authorizations which may be delivered or issued subsequent to the Closing Date pursuant to applicable law, rule or regulation relating to such waiver, permit, approval, license or other authorization by a Governmental Entity;
(b) Without regard to any update to the Company Disclosure Letter pursuant to Section 4.5, the representations and warranties of the Company set forth in this Agreement that are qualified as to materiality shall be true and correct and the representations and warranties of the Company that are not qualified as to materiality shall be true and correct in all material respects, in each case, as of the Closing Date as though made as of the Closing Date, provided that, to the extent that any such representation or warranty speaks as of a specified date, it need only be true and correct as of such specified date;
(c) The Company shall have performed or complied with in all material respects its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Closing Date;
(d) No Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would, and there shall not be in effect any law, order or regulation that would, (i) prevent consummation of the transactions contemplated by this Agreement,(ii) cause the transactions contemplated by this Agreement are subject to the fulfillment be rescinded following consummation, or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d(iii) or Section 7.2(e):
(a) Each of the representations and warranties of Sellers contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warrantieshave, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Company Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(iie) The Company shall have delivered to Purchaser the Equity Registration Rights Agreement, duly executed by ParentCompany Certificate;
(iiif) stock Purchaser shall have received such other certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests and instruments (other than in respect including certificates of good standing of the Equity Interests held by Sellers Company in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited its jurisdiction of organization and the Delayed Closing Entitiesvarious foreign jurisdictions in which it is qualified, which certified charter documents, certificates as to the Parties agree may be transferred following incumbency of officers and the Closing adoption of authorizing resolutions) as it shall reasonably request in accordance connection with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed theretothe Closing;
(ivg) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by SellersThere shall have been no Company Material Adverse Effect; provided, however, that if it is required for none of the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease following shall be executed deemed, either alone or in a form substantially similar combination, to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment constitute, and assumption none of the lease following shall be taken into account in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W determining whether there has been a Company Material Adverse Effect: (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xivi) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed any failure by the appropriate Seller;
Company or the Project to meet any internal or published projections, forecasts, or revenue or earnings predictions for any period ending on or after the date of this Agreement; (xviiii) any easement agreements required under Section 6.27(c)adverse change, duly executed by effect, event, occurrence, state of facts or development to the appropriate Seller;
(xviii) extent attributable to the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation announcement or pendency of the transactions contemplated by this Agreement and such Ancillary Agreements and Agreement; (iii) to the matters set forth extent that they do not have a materially disproportionate effect on the Company or the Project taken as a whole, any adverse change, effect, event, occurrence, state of facts or development attributable to conditions affecting (A) the industry in Section 6.16(e)which the Company or the Project operates, and (B) certifying the U.S. securities or financial markets, (C) the U.S. economy as a whole, or (D) the economy of any foreign country as a whole; or (iv) any adverse change, effect, event, occurrence, state of facts or development resulting from (1) the taking of any action required by this Agreement, (2) any change in accounting requirements or principles or any change in applicable laws, rules or regulations or the interpretation or enforcement thereof, (3) the acts or omissions of, or on behalf of, Purchaser, or (4) to the incumbency of extent that they do not have a materially disproportionate effect on the officer(s) of such Seller executing this Agreement and Company or the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person Project, as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements)acts of war, each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtednessterrorism, or other conflict; and
(xxivh) The Company shall have obtained at its own expense (and shall have provided copies thereof to Purchaser) all books of the other waivers, permits, consents, approvals or other authorizations, and records effected all of Sellers described the registrations, filings and notices, as contemplated by Section 4.2(b), which are required on the part of the Company and which shall be in Section 2.2(a)(xiv)form and substance reasonably satisfactory to Purchaser.
(di) The UAW Collective Bargaining Agreement shall have been ratified by Board of Directors of each of Osaka Gas Freedom Energy Corp., the membership, shall have been assumed by the applicable Sellers and assigned to sole member of Purchaser, and shall be in full force and effectthe Guarantor has approved this Agreement.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 2 contracts
Samples: Partnership Interest Purchase Agreement, Partnership Interest Purchase Agreement (Contango Oil & Gas Co)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate effect the transactions contemplated by this Agreement are shall be subject to the fulfillment at or written waiver, prior to or at the Closing, of each Closing Date of the following additional conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of 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 Date, and the representations and warranties of Sellers the Company contained in ARTICLE IV of this Agreement shall be true and correct in all material respects (disregarding for if not qualified by materiality) and true and correct (if so qualified) on and as of the purposes date of such determination any qualification as to materiality or Material Adverse Effect) this Agreement and at and as of the Closing Date (as modified by the matters or circumstances reflected in the Updated Schedules, if any, provided by the Company to Purchaser in accordance with Section 7.4 hereof) as if made on at and as of the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time)Date, except to the extent that any breaches such representation or warranty expressly relates to another date (in which case, as of such representations date) and warrantiesPurchaser shall have received a certificate from the Company signed by an executive officer), individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.such effect;
(b) Sellers No action or proceeding shall have performed be pending against the Company or complied in all material respects with all agreements and obligations required by this Agreement to be performed Purchaser before any court of competent jurisdiction which action or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date proceeding has been brought by a duly authorized representative of SellersGovernmental Entity and which is reasonably likely to have a Material Adverse Effect or to prohibit, on behalf of Sellers and not in such authorized representative’s individual capacityrestrain, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates enjoin or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, restrict the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and or the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a partyother Transaction Documents;
(xxc) a certificate All consents, approvals, authorizations and permits of, actions by, filings with or notifications to, Governmental Entities and third parties required in compliance connection with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16and the other Transaction Documents shall have been obtained, taken or made;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement Purchaser shall have been ratified received an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Company, containing the opinions in the form attached hereto as Exhibit C with such provisions concerning scope of firm's inquiry, law covered by opinion, reliance by the membershipfirm, assumptions, definition of firm's "knowledge", qualifications, limitations and similar matters as shall be reasonably acceptable to the Company.
(e) The Company and each current Company stockholder who is to be made a party thereto shall have been assumed by executed and delivered to Purchaser the applicable Sellers and assigned to PurchaserInvestment Agreement, and such Investment Agreement shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.;
(f) The Canadian Operations Continuation Company and Xxxxxx Xxxxxx shall have executed and delivered to Purchaser the Agreement Among Stockholders, and such Agreement Among Stockholders shall be in full force and effect;
(g) The Company and Xxxxx Xxxxx Associates, Ltd. ("FFA") shall have entered into the Consulting Agreement substantially in the form of the draft most recently reviewed by the Company and Purchaser;
(h) Each of the Proxy Proposals shall have received Stockholder Approval, and the Charter Amendment shall have been filed with the Delaware Secretary of State and be shall be effective;
(i) The Board shall be constituted of the individuals designated in accordance with Section 6.5;
(j) The Company shall have engaged an executive search firm of national reputation and reasonably acceptable to Purchaser to assist in the CEO Search;
(k) The matters or circumstances reflected in the Updated Schedules, if any, provided by the Company to Purchaser in accordance with Section 7.4 hereof, in the reasonable judgment of Purchaser, could not reasonably be expected to result in a Material Adverse Effect; and
(l) Each of the persons identified in Schedule 3.7
(a) hereto shall have executed and delivered by to the parties thereto Company and Purchaser a valid, binding and enforceable agreement and acknowledgment, in form and content reasonably satisfactory to Purchaser, of the form previously distributed among themmatters referred to in Section 3.7(b)(ii).
Appears in 2 contracts
Samples: Stock Purchase and Sale Agreement (Transmedia Network Inc /De/), Stock Purchase and Sale Agreement (Chasen Melvin)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by under this Agreement are subject to the fulfillment satisfaction (or, if applicable, waiver in the sole discretion of Purchaser, except as to the condition described in Section 11.2(c)) on or written waiver, prior to or at before the ClosingClosing Date, of each of the following conditions:
(a) All of the covenants and agreements required by this Agreement to be complied with and performed by Seller and Parent on or before the Closing Date shall have been duly complied with and performed in all material respects;
(b) The representations and warranties made by Seller and Parent herein or in any certificate or other document delivered at Closing pursuant to (i) the provisions hereof or (ii) in connection with the transactions contemplated hereby shall be true and correct in all material respects, on and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on the Closing Date; provided, however, that the representations and warranties made by Seller and Parent herein or in no event may Purchaser waive any certificate or other document delivered pursuant to the conditions contained provisions hereof shall be deemed to be true and correct in Section 7.2(dall material respects on and as of the Closing Date, with the same force and effect as though made on the Closing Date, unless the failure to be so true and correct would have a Material Adverse Effect;
(c) or Section 7.2(e):The Regulatory Approvals shall have been obtained and shall be Final;
(a) Each No court or governmental or regulatory authority 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 to enjoin, or which prohibits, consummation of the representations transactions contemplated hereby;
(b) Seller shall have entered into the Fiserv Settlement Agreement and warranties the I-Pay Settlement Agreement in accordance with Section 7.6;
(c) Seller shall have obtained, and delivered to Purchaser, executed Landlord Consents from the landlords (or, in lieu thereof shall have entered into valid Sublease Agreements with Purchaser) with respect to each of Sellers contained the Real Property Leases and ATM Real Property Leases;
(d) Seller shall have obtained an executed Right of First Refusal Waiver with respect to each of the Transfer Restricted Loans;
(e) Seller shall have remediated all documentation and/or insurance coverage issues with respect to the Flood Zone Compliance Loans such that the Flood Zone Compliance Loans are in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) compliance as of the Closing Date as with all Laws of all Governmental Authorities, other than those the penalty or liability for the violation of which, if made on the Closing Date (except for representations and warranties that speak as of a specific date imposed or timeasserted, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, have a Material Adverse Effect., and shall have provided to Purchaser written documentation evidencing such remediation;
(bf) Sellers Purchaser shall have performed received the items to be delivered by Seller and Parent pursuant to Section 4.2; and
(g) The owner’s title insurance policy commitment in Annex D shall contain no matters other than those Permitted Encumbrances defined in clauses (1) through (4) of Section 4.2 (a) above and matters that do not materially and adversely affect the current use, occupancy and/or value; except that this condition to closing shall be deemed waived unless within ten (10) Business Days after receipt of such commitment Purchaser identifies one or complied more of such exceptions not allowable under clauses (1) through (4) of Section 4.2(a) or which materially and adversely affects the current use, occupancy and/or value, and provides Seller a period of at least fifteen (15) Business Days to cure such defect in all material respects with all agreements and obligations required by this Agreement or cause the same to be performed or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller omitted from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)title policy commitment.
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 2 contracts
Samples: Purchase and Assumption Agreement, Purchase and Assumption Agreement (Bar Harbor Bankshares)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate consummate, or cause to be consummated, the transactions contemplated by this Agreement Transactions are subject to the fulfillment or written waiver, prior to or at the Closing, of each satisfaction of the following additional conditions; provided, however, that any one or more of which may be waived in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):writing by Purchaser:
(a) Each of the representations and warranties of Sellers and the Company contained in ARTICLE IV of this Agreement shall be true and correct in all material respects (disregarding for except where such representations and warranties are qualified by materiality) both on the purposes of such determination any qualification as to materiality or Material Adverse Effect) date hereof and as of the Closing Date Closing, as if made on at and as of that time, and each of the covenants and agreements of Sellers and the Company to be performed as of or prior to the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or have been duly performed in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effectall material respects.
(b) All material permits, approvals, clearances, and consents of, and all filings with, Governmental Authorities required to be procured by any of the Sellers or the Company in connection with the Transactions shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closingbeen procured.
(c) Sellers The Company shall have delivereddelivered to Purchaser a certificate signed by an officer of the Company, dated as of the Closing Date, certifying that, the conditions specified in SECTION 9.1, as they relate to either or caused both Sellers and the Company, and SECTION 9.2(a) have been fulfilled.
(d) Any consent required for the consummation of the Transactions under any Contract required to be deliveredlisted on SCHEDULE 4.11 hereto or for the continued enjoyment by the Company of the benefits of any such Contract after the Closing shall have been obtained.
(e) All Persons who are directors or officers of the Company shall have resigned such directorships or offices, effective as of the Closing Date.
(f) Purchaser shall have received opinions, dated as of the Closing Date, from counsel to the Company and counsel to Sellers, reasonably acceptable to counsel to Purchaser:.
(g) Sellers and the Company shall have delivered all assignments, consents, approvals and other documents, certificates and instruments as Purchaser may reasonably request for the purpose of (i) evidencing the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenants or agreements of the Company or the compliance by Purchaser with any of the conditions, all as contained or referred to in this Agreement or (ii) effectuating or confirming the consummation of the Transactions.
(h) Purchaser shall have received possession or control of all corporate, accounting, business and tax records of the Company.
(i) a certificate executed as Each of the Closing Date by Sellers shall have entered into a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that Non-Competition Agreement containing the conditions terms set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;on EXHIBIT E.
(iij) Each of the Equity Registration Rights Agreement, duly executed by Parent;Sellers shall have entered into an Employment Agreement with the Company containing the terms set forth on EXHIBIT F.
(iiik) stock certificates Purchaser shall have received a true and complete copy, certified by the Secretary or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers an Assistant Secretary (or similar documentationofficer) of the Company of the resolutions duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;and validly adopted by the Board of Directors of the Company evidencing its authorization of the execution and delivery of this Agreement and the consummation of the Transactions.
(ivl) an omnibus xxxx Sellers shall have delivered signed UCC-3 termination statements terminating all security interests in the assets of sale, substantially the Company except for security interests securing indebtedness to be assumed by Purchaser.
(m) Each of the Sellers that receives the Warrants shall have executed and delivered the Warrantholders' Agreement in the form attached hereto as Exhibit P EXHIBIT G.
(n) The Company shall deliver to Purchaser an executed affidavit, dated not more than thirty (30) days prior to the “Xxxx of Sale”Closing Date, in accordance with Code Section 1445(b)(3) and Treasury Regulation sections 1.897-2(h) and 1.1445-2(c)(3), together with transfer tax declarations which statement certifies that the Shares are not U.S. real property interests.
(o) Purchaser shall have received the audited financial statements of IIT, C.A. as of and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title for the twelve month period ended December 31, 1997 identical to the Purchased Assetsunaudited financial statements of IIT, each in a form reasonably satisfactory to C.A. as of and for the Parties period ended December 31, 1997 set forth on Scheduled 4.6 except for the deletion of any qualifications and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreementchanges resulting therefrom, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for Purchaser's obligation to consummate the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease Transactions shall be executed, then a separate assignment and assumption conditioned on delivery of such lease or sublease shall be executed in a form substantially similar financial statements only if Purchaser establishes that it was otherwise ready, willing and able to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of deliver the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)Cash Consideration.
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Usinternetworking Inc), Stock Purchase Agreement (Usinternetworking Inc)
Conditions to Obligations of Purchaser. The obligations obligation of the Purchaser to consummate the transactions contemplated by this Agreement are Closing is subject to the fulfillment satisfaction, or written waiver, prior to or the waiver at the ClosingPurchaser’s sole and absolute discretion, of each of all the following further conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each The Company shall have duly performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date.
(b) All of the representations and warranties of Sellers the Company contained in ARTICLE IV of this Agreement shall be true and correct (in any certificate delivered by the Company pursuant hereto, disregarding for the purposes of such determination any qualification as all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall: (i) be true, correct and complete at and as of the date of this Agreement or, if otherwise specified, when made or when deemed to have been made, and (ii) be true, correct and complete as of the Closing Date as if made on Date, except in the Closing Date case of (except i) and (ii) for any inaccuracies in such representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or would not in the aggregate, have not had, or would not aggregate reasonably be expected to have, have a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at Effect on the ClosingCompany.
(c) Sellers There shall have deliveredbeen no event, change or caused occurrence which individually or together with any other event, change or occurrence has had a Material Adverse Effect on the Company.
(d) The Purchaser shall have received a certificate signed by the Chief Executive Officer and Chief Financial Officer of the Company to be delivered, to Purchaser:the effect set forth in clauses (a) through (c) of this Section 9.2.
(e) The Purchaser shall have received the Financial Statements at least 30 days before the Closing Date.
(f) The Purchaser shall have received (i) a copy of the Company’s certificate executed of incorporation certified as of the Closing Date a recent date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
, (xxiiii) their written agreement to treat copies of resolutions duly adopted by the Relevant Transactions board of directors of the Company and by vote or consent of the Stockholders authorizing this Agreement, the Additional Agreements and the Merger and other transactions contemplated by hereby and thereby, (iii) a certificate of the Secretary of the Company certifying as to signatures of the officer(s) executing this Agreement in accordance and any certificate or document to be delivered pursuant hereto, together with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders evidence of the secured Indebtedness; and
incumbency of such Secretary, and (xxiviv) all books and records of Sellers described a recent good standing certificate regarding the Company from each jurisdiction in Section 2.2(a)(xiv)which the Company organized or is qualified to do business.
(dg) The UAW Collective Bargaining Agreement Key Employees shall have executed the Key Employment Agreements and the same shall be in full force and effect, subject to completion of the Merger.
(h) The Lock-Up Agreements shall have been ratified by entered into and the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and same shall be in full force and effect.
(ei) The UAW Retiree Settlement Company shall not have any Indebtedness other than in connection with the Bayer License Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval OrderBridge Financing.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 2 contracts
Samples: Merger Agreement (Vincera Pharma, Inc.), Merger Agreement (LifeSci Acquisition Corp.)
Conditions to Obligations of Purchaser. The obligations obligation of the Purchaser to consummate effect the transactions contemplated by this Agreement are Tranche I Closing shall be subject to the fulfillment satisfaction at or written waiver, prior to or at the Tranche I Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(ai) Each of the The representations and warranties of Sellers the Company and Neutron contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the date of this Agreement and the Tranche I Closing Date as if made on such date, except to the Closing Date (except for extent such representations and warranties that speak are specifically made as of a specific particular date or time, (in which case such representations and warranties shall be true and correct only as of such date or timedate), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.;
(bii) Sellers The Company shall have performed or and complied in all material respects with all covenants and agreements and obligations required by this Agreement to be performed or complied with by Sellers it prior to or at the Tranche I Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing Between the Transferred Equity Interests (other than in respect date of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited this Agreement and the Delayed Closing EntitiesTranche I Closing, which nothing shall have occurred that has had or would be reasonably expected to have a Material Adverse Effect on the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank Company or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed theretoNeutron;
(iv) an omnibus xxxx of saleAll Transaction Agreements shall have been duly executed and delivered by each party thereto, substantially shall be in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably substance satisfactory to the Parties Purchaser, and duly executed by the appropriate Sellershall remain in full force and effect; and, no default, event of default or breach shall be outstanding or alleged under any Transaction Agreement;
(v) an omnibus assignment Purchaser shall have approved the Neutron Budget and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate SellerCompany Budget;
(vi) RMB shall have extended the expiry of the RMB Loan to the Merger Closing and shall have agreed to forebear from declaring a novation agreementdefault or event of default or foreclosing on the RMB Loan, substantially in all on terms and conditions satisfactory to the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental AuthoritiesPurchaser;
(vii) a government related subcontract agreementThe Company shall have received all approvals and consents necessary to consummate the Tranche I Closing, substantially in including the form attached hereto as Exhibit S (approval of the “Government Related Subcontract Agreement”)Tranche I Shares for trading on NASDAQ, duly executed by Sellerssubject to official notice of issuance;
(viii) an omnibus intellectual property assignment agreementThe Company shall deliver or cause to be delivered to the Purchaser certificates evidencing the Tranche I Shares, substantially duly authorized, issued, fully paid and non-assessable, registered in the form attached hereto name of the Purchaser or as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by SellersPurchaser shall otherwise designate;
(ix) The Company shall have provided a transition services agreementfavorable legal opinion of counsel to the Company, substantially in a form satisfactory to the form attached hereto as Exhibit U (the “Transition Services Agreement”)Purchaser, duly executed by Sellerswhich shall include opinions in respect of customary corporate and securities laws matters;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels The Company shall have provided certificates of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an senior officer of each Seller of the Company and Neutron, in form and substance satisfactory to the Purchaser, certifying as follows:
(A) certifying that attached to such certificate is a true and complete copy of the certificate of incorporation and bylaws, as amended, of the Company and each of its Subsidiaries or Neutron and each of its Subsidiaries, as applicable, including any and all certificates of designation;
(B) that attached thereto are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Sellerthe Company or Neutron, as applicable, authorizing the execution, delivery and performance of this Agreement and the Ancillary other Transaction Agreements to which such Seller it is a party, instruments and certificates required to be executed by it in connection herewith and approving the consummation of the transactions in the manner contemplated by hereby and thereby including, with respect to the Company, the authorization and issuance of the Shares; and
(C) the names and true signatures of the officers and directors of the Company or Neutron, as applicable, signing this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary all other Transaction Agreements to which such Seller it is a party;
(xxxi) The Company shall have provided to Purchaser a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company dated as of the Tranche I Closing Date certifying that the Company has complied in all material respects with its covenants herein and that the Company is in compliance with Treas. Reg. §1.1445-2(b)(2all laws and regulations (including with respect to corporate and securities matters) that each Seller is except as would not reasonably be expected to have a foreign person as defined under Section 897 of Material Adverse Effect on the Tax CodeCompany;
(xxixii) Neutron shall have provided to Purchaser a certificate of good standing for each Seller from the Secretary of State two officers dated as of the State of Delaware;
Tranche I Closing Date certifying that Neutron has complied with its covenants herein, that Neutron is in compliance with all laws and regulations (xxiiincluding with respect to corporate and securities matters) their written agreement except as would not reasonably be expected to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in have a form reasonably satisfactory to the Parties and duly executed by the holders of the secured IndebtednessMaterial Adverse Effect on Neutron; and
(xxivxiii) all books Each of the Company, Neutron and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement RMB shall have been ratified performed and complied in all material respects with all covenants and agreements required by any Transaction Agreement to which any of them is a party to be performed or complied with by it prior to the membershipTranche I Closing. The foregoing conditions precedent are for the exclusive benefit of Purchaser and may be waived, in whole or in part, by Purchaser in writing at any time, in which event the Parties shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part no further liability. If any of the Sale Approval Ordersaid conditions shall not be complied with or waived by Purchaser on or before March 15, 2012, then the Purchaser may rescind and terminate its obligations to purchase the Shares pursuant to this Agreement by written notice to the Company.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 2 contracts
Samples: Investment Agreement (Resource Capital Fund v L.P.), Investment Agreement (Uranium Resources Inc /De/)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):
: (a) Each the Fundamental Representations of the representations and warranties of Sellers Seller contained in ARTICLE IV of this Agreement (i) that are not qualified as to “materiality” shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) in all material respects as of the Closing Date Closing, and (ii) that are qualified as if made on to “materiality” shall be true and correct as of the Closing Date (Closing, except for to the extent such representations and warranties that speak referred to in the preceding clauses (a)(i) and (a)(ii) are made as of a specific date or timedate, which representations and warranties shall be true and correct only in all material respects or true and correct, as the case may be, as of such date or time)specific date, except (b) the other representations and warranties of Seller contained in this Agreement (i) that are not qualified as to the extent that any breaches “Material Adverse Effect,” regardless of whether such representations and warrantieswarranties are qualified as to “materiality,” shall be true and correct in all respects as of the Closing, individually or in the aggregate, have not had, or except as would not reasonably be expected to have, have a Material Adverse Effect.
, and (bii) Sellers that are qualified as to “Material Adverse Effect” shall be true and correct as of the Closing, except to the extent such representations and warranties referred to in the preceding clauses (b)(i) and (b)(ii) are made as of a specific date, which representations and warranties shall be true and correct except as would not reasonably be expected to have performed a Material Adverse Effect or complied true and correct, as the case may be, as of such specific date, (c) the covenants and agreements contained in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to Seller on or at before the Closing.
(c) Sellers Closing shall have deliveredbeen complied with in all material respects, or caused to be delivered, to Purchaser:
(id) a certificate executed as Purchaser shall have received each of the Closing Date by a duly authorized representative of Sellersagreements, on behalf of Sellers instruments, certificates and not in such authorized representative’s individual capacity, certifying that the conditions other documents set forth in Section 7.2(a2.04, (e) and Section 7.2(bat least six (6) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held eight (8) Named Employees (one of which six shall include “Employee A” identified on Schedule A), shall remain employed by Sellers an Acquired Company and none of the Named Employees shall have revoked, terminated, challenged, cancelled, or indicated an intention to revoke, terminate, challenge or cancel, their Non-Competition Agreement (provided that in RHIthe event a Named Employee ceases employment prior to the Closing due to death or disability, Promark Global Advisors Limitedexcluding “Employee A” identified on Schedule A, Promark Investments Trustees Limited such Named Employee’s cessation of employment and the Delayed Closing Entities, which the Parties agree may termination or cancellation of such Named Employee’s Non-Competition Agreement shall not be transferred following the Closing in accordance deemed noncompliance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied this condition by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers Seller and the appropriate United States Governmental Authorities;
Acquired Companies and the numbers at the beginning of this clause (viie) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed shall each be reduced by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of one (1) to reflect such SellerNamed Employee’s Organizational Documents, each as amended through and in effect on termination for purposes of determining compliance with this condition with respect to the Closing Date remaining Named Employees) and (2f) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements no Governmental Authority shall have commenced or threatened to which such Seller is a party, the consummation of commence any Action with respect to the transactions contemplated by this Agreement and such Ancillary Agreements and or seeking to prohibit or limit the matters set forth in Section 6.16(e), and (B) certifying as exercise by Purchaser of any material right pertaining to the incumbency ownership of the officer(s) of such Seller executing this Agreement and Shares or the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)Assets.
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 2 contracts
Samples: Stock Purchase Agreement (CAESARS ENTERTAINMENT Corp), Stock Purchase Agreement (Caesars Acquisition Co)
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate effect the transactions contemplated by this Agreement are shall be further subject to the fulfillment satisfaction at or written waiver, prior to or at the Closing, Closing of each of the following conditions; provided, howeverany or all of which may be waived, that in no event may Purchaser waive the conditions contained whole or in Section 7.2(d) or Section 7.2(e):part, by Purchaser:
(a) Each of the representations and warranties of Sellers Seller contained in ARTICLE IV Article III of this Agreement shall be true and correct (disregarding for the purposes of such determination without giving effect to any qualification as to materiality "materiality" or "Material Adverse Effect" qualifiers set forth therein) at and as of the Closing Date as if made on the Closing Date at and as of such time (except for to the extent expressly agreed to be made as of an earlier date, in which case as of such earlier date), except where the failure of such representations and warranties that speak as of a specific date or time, which representations and warranties shall to be true and correct only as of such date or time), except to the extent that any breaches of such representations and warrantieswould not, individually or in the aggregate, have not had, or would not reasonably be expected to have, result in a Material Adverse Effect.; provided, that, for purposes of determining Seller's satisfaction of this Section 6.2(a), no effect shall be given to any supplement, update or amendment to the Seller Disclosure Schedule from and after the date of this Agreement;
(b) Sellers Seller shall have performed or and complied in all material respects with all agreements and obligations covenants required by this Agreement to be performed or complied with by Sellers Seller under this Agreement at or prior to or at the Closing.;
(c) Sellers Purchaser shall have deliveredreceived from Seller a certificate, or caused to be delivereddated the Closing Date, duly executed by an officer of Seller, to the effect of Section 6.2(a) and Section 6.2(b) above;
(d) Seller shall have delivered to Purchaser:
, in form and substance reasonably satisfactory to Purchaser, evidence that the Required Consents (other than (i) a certificate executed as Required Consents relating to the transfer of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
Voice Subscribers to Purchaser or (ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment expiration of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar waiting periods referred to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e)5.15(y) hereof) have been obtained or given, as applicable, and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be are in full force and effect.;
(e) The UAW Retiree Settlement Agreement Seller shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part or caused to be delivered to Purchaser each of the Sale Approval Order.material documents specified in Section 2.6(b) hereof;
(f) The Canadian Operations Continuation Agreement Purchaser shall have received the consents to the assignment of the Contracts indicated with an "asterisk" on Section 3.3(b)(iii) of the Seller Disclosure Schedule (the "Material Contract Consents"), and no such consent, authorization or approval shall have been executed and delivered by the parties thereto revoked;
(g) Purchaser shall have received an opinion of Seller's outside corporate counsel regarding certain corporate matters substantially in the form previously distributed among themof Exhibit I1 hereto and an opinion of Seller's in house counsel regarding certain corporate matters substantially in the form of Exhibit I2 hereto; and
(h) Purchaser shall have received an opinion of Seller's outside regulatory counsel regarding certain regulatory matters substantially in the form of Exhibit J hereto.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Susquehanna Media Co), Asset Purchase Agreement (RCN Corp /De/)
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the The representations and warranties of Sellers contained in ARTICLE IV of this Agreement Section 3.06(b) shall be true and correct (disregarding for as of the purposes date of such determination any qualification as to materiality or Material Adverse Effect) this Agreement and as of the Closing Date as if made on restated at and as of the Closing Date (except for Date, the representations and warranties that speak as of a specific date or time, which representations and warranties in Section 3.09(c) shall be true and correct only in all material respects as of such the date or time)of this Agreement and as of the Closing Date as if restated at and as of the Closing Date and in the case of each other representation and warranty contained in Article III, except for any failure to the extent be true and correct that any breaches of such representations has not had and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, have a Material Adverse Effect, such representation or warranty (disregarding all materiality and Material Adverse Effect qualifications contained therein), shall be true and correct (i) as of the date of this Agreement and as of the Closing Date as if restated at and as of the Closing Date or (ii) if made as of a date specified therein, as of such date, and Purchaser shall have received a certificate signed by a senior officer of Seller to such effect.
(b) Sellers shall have performed or complied The covenants, obligations and agreements contained in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior Seller on or before the Closing shall have been complied with in all material respects, except that Seller shall have complied in all respects with its obligations under Article II to be complied with by Seller on or at before the Closing, and Purchaser shall have received a certificate signed by a senior officer of Seller to such effect.
(c) Sellers Each of Seller and, if applicable, its Subsidiaries shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer delivered to Purchaser each of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller it is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement Seller shall have been ratified by the membership, shall have been assumed by the applicable Sellers received and assigned provided to Purchaser, and shall be in full force and effect.
(ePurchaser each Consent identified on Section 8.03(d) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval OrderSeller Disclosure Schedules.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 2 contracts
Samples: Acquisition Agreement (Syniverse Technologies Inc), Acquisition Agreement (Verisign Inc/Ca)
Conditions to Obligations of Purchaser. The obligations of Purchaser -------------------------------------- to consummate the transactions contemplated by this Agreement are hereby shall be subject to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):unless waived by Purchaser:
(a) Each of the 8.5.1 The representations and warranties of Sellers contained Holdings and Company set forth in ARTICLE IV of this Agreement Article 4 and Article 6, respectively, shall be true and correct (disregarding for on the purposes of such determination any qualification as to materiality or Material Adverse Effect) date hereof and on and as of the Closing Date as if though made on and as of the Closing Date (except for representations and warranties that speak made as of a specific date or timespecified date, which representations and warranties shall need be true and correct only as of such date or timethe specified date), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements and obligations required as affected by this Agreement to be performed or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and except for such Ancillary Agreements inaccuracies which have not had and would not reasonably be expected to have in the matters set forth reasonably foreseeable future a material adverse effect on Holdings or the Company, respectively;
8.5.2 The Company shall have performed in Section 6.16(e), all material respects each obligation and agreement and shall have complied in all material respects with each covenant to be performed and complied with by it hereunder at or prior to the Closing Date;
8.5.3 The sale of the Holdings Securities to Purchaser: (i) shall not be prohibited or enjoined (temporarily or permanently) by any Governmental Authority pursuant to any applicable law or governmental regulation nor shall any Action seeking such prohibition or injunction be pending; and (Bii) certifying as shall not subject Purchaser to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements any material penalty or, in its reasonable judgment, other onerous conditions under or pursuant to which such Seller is a partyany applicable law or governmental regulation;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of 8.5.4 All certificates and instruments representing the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement Holdings Securities shall have been duly transferred to treat the Relevant Transactions Purchaser and the other transactions contemplated delivered by this Agreement Holdings in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders terms of the secured IndebtednessAssignments of Interest and/or Stock Powers; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement 8.5.5 Holdings shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part applicable Assignments of the Sale Approval OrderInterest and/or Stock Powers.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 2 contracts
Samples: Restructuring Agreement (Teletouch Communications Inc), Restructuring Agreement (Teletouch Communications Inc)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are Transactions shall be subject to the fulfillment or written Purchaser’s waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the The representations and warranties of Sellers contained in ARTICLE IV of this Agreement Article II shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) in all respects as of the Closing Date as if made on except where the Closing Date (except for representations failure of such representation and warranties that speak as of a specific date or time, which representations and warranties shall to be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, have a Material Adverse Effect.;
(b) Sellers shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement and each of the Related Documents to be performed or complied with by Sellers it prior to or at on the Closing.Closing Date;
(c) Sellers shall have delivereddelivered to Purchaser, or caused to be delivered, delivered to Purchaser, each of the following documents, duly executed by each Seller or both Sellers, as the case may be, and any other Person required to execute any of such documents:
(i) Certificates evidencing the CEGP Interest in the name of Purchaser, free and clear of Encumbrances except for restrictions on transfer provided herein, in CEGP’s Charter Documents or under the Securities Act and applicable state securities laws;
(ii) Certificates evidencing the CELP Units in the name of Purchaser, free and clear of Encumbrances except for restrictions on transfer provided herein, in CELP’s Charter Documents or under applicable Securities Laws;
(iii) The Amended CEGP LLC Agreement executed by all members of CEGP;
(iv) The Amended CELP LP Agreement executed by CEGP.
(v) The Amended Registration Rights Agreement executed by all parties thereto (other than Purchaser);
(vi) The Warrants issued in the names of the Warrant Purchasers executed by CELP;
(vii) The Release of Claims of each individual listed on Schedule 5.7;
(viii) All Seller Required Consents as listed on Schedule 2.3;
(ix) Letters of resignation of each officer and director of CEGP listed on Schedule 5.1(a);
(x) Copies of minutes of the meeting of members of CEGP, certified by the Secretary of CEGP, evidencing the approval of (i) the issuance of the CEGP Interest, (ii) the unanimous approval of the Amended CEGP LLC Agreement, and (iii) recommending that the limited partners of CELP approve the Amended CELP LP Agreement;
(xi) The written consent of the members of CEGP taking the actions specified in Section 5.1(b); and
(xii) Copies of the written consent of the limited partners of CELP, certified by the Secretary of CEGP (acting in its capacity as general partner of CELP), approving the Amended CELP LP Agreement, accompanied by the written opinion of Sellers’ counsel, Sxxxxxxxxxx, Xxxxxx & MxXxxxxx, LLP, in the form attached hereto as Exhibit F.
(d) Purchaser shall have received a certificate executed as of certificate, dated the Closing Date and signed by a duly authorized representative officer of SellersCEGP certifying on CEGP’s behalf and in CEGP’s capacity as General Partner of CELP, on behalf that each of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a6.2(a) and Section 7.2(b6.2(b) have been satisfied;
(iie) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) have received a certificate of an officer the Secretary of each Seller (A) CEGP certifying that attached to such certificate thereto are (i) true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) all resolutions of adopted by the board of directors of such Seller, CEGP authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, Related Documents and the consummation of the transactions contemplated by this Agreement Transactions and such Ancillary Agreements that all resolutions are in full force and effect and are all the matters set forth resolutions adopted in Section 6.16(e), connection with the Transactions; (ii) attaching good standing and (B) certifying as to the incumbency existence certificates of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for Entity in each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions formation and the other transactions contemplated by this Agreement each jurisdiction in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtednesswhich it conducts business; and
(xxivf) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement Purchaser shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part received a certificate of the Sale Approval OrderSecretary of CEGP certifying the names and signatures of the officers of CEGP authorized to sign this Agreement, the Related Documents and the other documents to be delivered hereunder and thereunder.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (CEGP Acquisition, LLC), Purchase and Sale Agreement (Central Energy Partners Lp)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by under this Agreement are subject to the fulfillment satisfaction (or, if applicable, waiver in the sole discretion of Purchaser, except as to the condition described in Section 12.2(c)) on or written waiver, prior to or at before the ClosingClosing Date, of each of the following conditions:
(a) All of the covenants and agreements required by this Agreement to be complied with and performed by Sellers on or before the Closing Date shall have been duly complied with and performed in all material respects; provided, however, that Sellers shall be deemed to have duly complied with and performed such covenants and agreements in no event may Purchaser waive all material respects unless the conditions contained in Section 7.2(d) failure to so perform or Section 7.2(e):comply would have a Material Adverse Effect;
(ab) Each of the The representations and warranties of made by Sellers contained herein or in ARTICLE IV of this Agreement any certificate or other document delivered pursuant to the provisions hereof or in connection with the transactions contemplated hereby shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) in all material respects, on and as of the Closing Date Date, with the same force and effect as if though such representations and warranties had been made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by SellersDate; provided, however, that if it is required for the assumption representations and assignment of warranties made by Sellers herein or in any lease certificate or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease other document delivered pursuant to the provisions hereof shall be executed deemed to be true and correct in all material respects on and as of the Closing Date, with the same force and effect as though made on the Closing Date, unless the failure to be so true and correct would have a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real PropertyMaterial Adverse Effect;
(xiiic) an assignment The Regulatory Approvals shall have been obtained and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment shall be Final and Assumption of Harlem Lease”), duly executed by Harlemall related statutory waiting periods have expired;
(xivd) an omnibus lease agreement in respect No court or governmental or regulatory authority of the lease of certain portions of the Excluded Real Property that 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 owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Sellerto enjoin, authorizing the executionor which prohibits, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtednesshereby; and
(xxive) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement Purchaser shall have been ratified by received the membership, shall have been assumed by the applicable Sellers and assigned items to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval OrderSellers pursuant to Section 5.2.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 2 contracts
Samples: Purchase and Assumption Agreement (1st United Bancorp, Inc.), Purchase and Assumption Agreement (Cib Marine Bancshares Inc)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are purchase of the applicable Shares to be purchased at each Closing shall be subject to the fulfillment or written the Purchaser’s waiver, at or prior to or at the Closing, such Closing Date of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the The representations and warranties of Sellers the Company (i) set forth in Sections 3.01 (Organization and Qualification), 3.02 (Capitalization), 3.04 (Authorization; Enforcement), 3.21 (Private Placement), 3.25 (Application of Takeover Protections) and 3.36 (Brokers) or (ii) contained in ARTICLE IV of this Agreement that are qualified by materiality or Material Adverse Effect, shall be true and correct (disregarding for the purposes as of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date as if made on the and as of such Closing Date (except for that representations and warranties that speak made as of a specific date or timeshall be required to be true and correct as of such date only), which and all other representations and warranties shall be true and correct only in all material respects as of such Closing Date as if made on and as of such Closing Date (except that representations and warranties made as of a specific date shall be required to be true and correct in all material respects as of such date or timeonly), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers The Company shall have performed or and complied in all material respects with all agreements covenants, agreements, obligations and obligations required by conditions contained in this Agreement that are required to be performed or complied with by Sellers prior to the Company on or at the before such Closing.
(c) Sellers This Agreement and each of the other Transaction Documents shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to Purchaser.
(d) The Secretary or an Assistant Secretary (or equivalent officer) of the Company shall have certified (i) the Certificate of Incorporation (including the Certificate of Designations) and Bylaws of the Company as in effect at such Closing, and (ii) resolutions of the Board approving the Transaction Documents and the transactions contemplated under the Transaction Documents.
(e) A certificate of the Chief Executive Officer of the Company, dated the applicable Closing Date, certifying, in his or her capacity as Chief Executive Officer of the Company, to the effect that the conditions set forth in Sections Section 5.01(a), (b) and (f) have been satisfied.
(f) No Material Adverse Effect shall have occurred and be continuing.
(g) The Company shall have duly adopted the Certificate of Designation, which shall have been filed with the Secretary of State of Nevada and become effective under the Nevada Revised Statutes on or prior to the Initial Closing and which shall remain in full force and effect as of each Closing.
(h) The Company shall have delivered to Purchaser a good standing certificate (or its equivalent) for the Company from the Secretary of State of Nevada.
(i) The Company shall have delivered, or caused to be delivered, to Purchaser each of the following, each in form and substance satisfactory to Purchaser:
(i) a certificate executed as of book entry statement evidencing the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in Shares upon such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;Closing; and
(ii) such other documents or instruments as the Equity Registration Rights Purchaser reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement, duly executed by Parent;.
(iiij) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect As of the Equity Interests held by Sellers in RHIInitial Closing, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;Company shall have:
(ivi) an omnibus xxxx of saleamended and restated its Bylaws, substantially in the form attached hereto as Exhibit P D (the “Xxxx of SaleAmended and Restated Bylaws”), together with transfer tax declarations to (A) set the size of the Board at six (6) directors, and all other instruments (B) provide that the size of conveyance that are necessary to effect transfer to Purchaser the Board of title to Directors shall not be increased without the Purchased Assets, each in a form reasonably satisfactory to vote of the Parties and duly executed by holders of the appropriate Seller;Company’s voting securities holding 80% of the vote; and
(vii) an omnibus assignment and assumption agreement, substantially adopted a shareholder rights plan in the form attached hereto as Exhibit Q B (the “Assignment and Assumption AgreementShareholder Rights Plan”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 2 contracts
Samples: Securities Purchase Agreement, Securities Purchase Agreement (AiAdvertising, Inc.)
Conditions to Obligations of Purchaser. The obligations of the Purchaser to consummate subscribe for and purchase the transactions Subscription Shares as contemplated by this Agreement are subject to the fulfillment satisfaction, on or written waiverbefore the Closing Date, prior to or at the Closing, of each of the following conditions; provided, however, that any of which may be waived in no event may writing by the Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):its sole discretion:
(a) Each of The Company Fundamental Warranties shall have been true and correct in all respects on the representations and warranties of Sellers contained in ARTICLE IV date of this Agreement shall be and true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) accurate on and as of the Closing Date as if though such representations and warranties were made on and as of the Closing Date (except for representations and warranties that expressly speak as of a specific date or timedate, in which case on and as of such specified date). Other representations and warranties of the Company contained in Section 4.01 of this Agreement shall be have been true and correct only on the date of this Agreement, and true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, true and correct in all respects) on and as of the Closing Date as though such representations and warranties were made on and as of the Closing Date (except for representations and warranties that expressly speak as of a specified date, in which case on and as of such date or timespecified date), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers The Company shall have performed or complied and complied, in all material respects aspects, with all, and not be in breach or default in, all agreements material aspects, under any agreements, covenants, conditions and obligations required by contained in this Agreement that are required to be performed or complied with by Sellers prior to on or at before the ClosingClosing Date.
(c) Sellers No Material Adverse Effect with respect to the Company shall have delivered, or caused occurred from the date hereof to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)Date.
(d) The UAW Collective Bargaining Agreement No stop order or suspension of trading shall have been ratified imposed by the membershipNASDAQ, shall have been assumed by the applicable Sellers and assigned SEC or any other Governmental Authority with respect to Purchaser, and shall be in full force and effectthe public trading of the ADSs.
(e) The UAW Retiree Settlement Agreement Company shall have been duly executed and delivered by the UAW and or shall have been approved by caused to be duly executed and delivered each Transaction Agreement to which it is a party to the Bankruptcy Court as part of the Sale Approval OrderPurchaser at or prior to Closing.
(f) The Canadian Operations Continuation Agreement Purchaser shall have been executed and delivered received a certificate signed by an executive officer of the parties thereto in Company confirming the form previously distributed among themsatisfaction of Sections 3.02(a) to 3.02(d) above.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate consummate, or cause to be consummated, the transactions contemplated by this Agreement are is subject to the fulfillment or written waiver, prior to or at the Closing, of each satisfaction of the following additional conditions; provided, however, that any one or more of which may be waived in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):writing by Purchaser:
(a) Each each of the representations and warranties of Sellers Seller contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) in all respects as of the Closing Date Date, as if made anew on the Closing Date and as of such date (except for with respect to representations and warranties that speak as of a specific date or timeto an earlier date, which representations and warranties shall be true and correct only on and as of such date or timeearlier date), except to the extent for, in each case, any inaccuracy or omission that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, have a Material Adverse Effect.Effect (provided that the representations and warranties set forth in Section 4.1 (Organization of Seller), Section 4.2 (Due Authorization) and Section 4.13 (Brokers’ Fees) shall be true and correct in all but de minimis respects as of the Closing Date, as if made anew on and as of such date);
(b) Sellers each of the covenants and agreements of Seller to be performed as of or prior to the Closing shall have been performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.respects;
(c) Sellers since the date of this Agreement, there shall not have occurred any Material Adverse Effect;
(d) Seller shall have delivereddelivered to Purchaser a certificate, or caused to be deliveredsigned by an officer of Seller, dated the Closing Date, certifying that, to Purchaser:
(i) a certificate executed as the knowledge and belief of the Closing Date by a duly authorized representative of Sellerssuch officer, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth specified in Section 7.2(a9.2(a) and Section 7.2(b9.2(b) have been satisfied;
(iie) Seller shall have obtained and delivered to Purchaser any third party consents or approvals necessary for the Equity Registration Rights Agreement, duly executed by Parentassignment of the Purchased Customer Contracts to Purchaser;
(iiif) stock certificates or membership interest certificates, if any, evidencing Seller shall have delivered to Purchaser the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed theretoSEC Financial Statements;
(ivg) an omnibus xxxx Seller shall, and shall cause its Affiliates to, terminate any and all supply agreements entered into by Seller or any of saleits Affiliates with respect to the U.S. Business, substantially and neither Seller nor any of its Affiliates shall be a party to any agreement obligating Seller, any of its Affiliates, or any third party to supply tissue paper products in the form attached hereto as Exhibit P (Territory, other than the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Supply Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxivh) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement Seller shall have been ratified by terminated all Liens on the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effectPurchased Assets.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Asset Purchase Agreement (Orchids Paper Products CO /DE)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate effect the transactions contemplated by this Agreement are shall be subject to the fulfillment at or written waiver, prior to or at the Closing, of each Closing of the following conditions; provided, however, that unless Purchaser shall waive such fulfillment in no event may Purchaser waive the conditions contained whole or in Section 7.2(d) or Section 7.2(e):part in writing:
(a) Each This Agreement and the transactions contemplated hereby shall have received all approvals, consents, authorizations, and waivers from governmental and other regulatory agencies and other third parties (including lenders, holders of debt securities, and lessors) required by law or contract to consummate this Agreement and required to keep all agreements and licenses held by the Company in full force and effect after the Closing; and no material adverse change in the business, operations and condition (financial or otherwise) of the Company shall have occurred or will occur in the future as a result of any requirement or condition made to or as a part of such approvals, consents, authorizations and waivers.
(b) There shall not be in effect a restraining order, a preliminary or permanent injunction or other order by any federal or state authority which prohibits the consummation of this Agreement and no action or proceeding shall have been instituted or remain pending seeking such relief or seeking damages in respect of this Agreement or the consummation of the transactions contemplated by the Agreement;
(c) Sellers shall have performed in all material respects each of their agreements, covenants and obligations contained in this Agreement and required to be performed on or prior to the Closing and shall have complied with all material requirements, rules, and regulations of all regulatory authorities having jurisdiction relating to the transactions contemplated herein;
(d) The representations and warranties of Sellers contained set forth in ARTICLE IV of this Agreement shall be true in all material respects as of the date of this Agreement and, except in such respects as do not materially and correct adversely affect the business, condition (disregarding for financial or otherwise), operations, or prospects of the purposes of such determination any qualification as to materiality or Material Adverse Effect) Company as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or timedate;
(e) Purchaser shall have received from Sellers a certificate, dated the Closing Date, executed by Sellers, and an officer's certificate, executed by a duly authorized officer of the Company (in such capacity), except dated the Closing Date, as to the extent that satisfaction of the conditions in subsections (c) and (d) of this Section 9.1 to the best knowledge of Sellers where appropriate;
(f) Purchaser shall have received, on and as of the Closing Date, an opinion of Counsel to Sellers substantially in the form of opinion set forth in Exhibit E attached hereto and such other closing documents and instruments as Purchaser shall reasonably request, in each case reasonably satisfactory in form and substance to Counsel to Purchaser;
(g) Since the date of this Agreement, there shall not have occurred any breaches material adverse change in, or other event or condition of such representations and warranties, individually any character which in any one case or in the aggregate, have not hadaggregate has materially adversely affected, or would not can be reasonably expected in any one case or in the aggregate to materially adversely affect in the future, the condition (financial or otherwise), assets, liability, results of operations, business or prospects of the Company; including, without limitation, any of the following which shall be expected to haveconsidered a material adverse change, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaserto- wit:
(i) a certificate executed as The sale, assignment, transfer, termination or cancellation of any of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not management contracts listed in Schedule 4.13 or any material modification or amendment to any such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfiedcontracts;
(ii) Any default under or breach of any material provision of any of the Equity Registration Rights Agreement, duly executed management contracts listed in Schedule 4.13 whether such default is by Parentthe Company or any other party thereto;
(iii) stock certificates The termination of, or membership interest certificatesdefault under or breach of, if any, evidencing any contract or agreement between the Transferred Equity Interests (other than in respect Company and any medical director of the Equity Interests held mental health treatment programs or units operated by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed theretoCompany;
(iv) an omnibus xxxx The termination of sale, substantially in the form attached hereto as Exhibit P (employment of any of the “Xxxx program directors of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed mental health treatment units or programs managed by the appropriate SellerCompany on the Effective Date;
(v) an omnibus assignment and assumption agreement, substantially a casualty loss which is not covered by insurance in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments excess of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller$10,000;
(vi) litigation or the assertion of a novation agreementclaim against the Company which is reasonably expected not to have potential liability to the Company, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers including costs and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels expenses of Owned Real Property located in jurisdictions outside of the United States)defense, in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser an amount more than $10,000.00 (the “Quitclaim Deeds”), duly executed including attorneys' fees for defending such claim) in excess of insurance coverage maintained by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating Company which would be applicable to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellersclaim; provided, however, that, in the event that if it the parties cannot mutually agree as to whether any such litigation or claim is required reasonably expected to have such potential liability to the Company, then the parties shall seek the opinion of a mutually selected third party qualified to make such assessment and the opinion of such third party as to such potential liability shall be binding upon the parties for the assumption purposes hereof; and
(h) At or prior to Closing, the Company shall have received (and assignment delivered copies thereof to Purchaser) duly executed resignation letters from all directors and officers of any lease or sublease underlying a Leased Real Property that a separate assignment the Company designated by Purchaser pursuant to which such individuals resign as directors and assumption for officers of the Company. Each such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease resignation shall be executed in a form substantially similar effective on or prior to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and shall acknowledge that there are no obligations, liabilities or amounts due from the Company to such respective individuals except for accrued salary and other benefits or otherwise as expressly set forth in this Agreement.
(2i) resolutions At the Closing, Jamex X. Xxxxx, X.D. and any other Seller that is a director or officer of the board Company shall execute and deliver a release of directors any and all claims of any kind against the Company in favor of Purchaser and the Company in the form and substance satisfactory to Counsel to Purchaser (the "Releases"). Such release shall be in the form of Exhibit F attached hereto.
(j) On or prior to the Closing, the Company and Ramsay Healthcare, Inc. shall have renewed and extended on terms and conditions satisfactory to Purchaser in its sole discretion those two certain Management Contracts relating to mental health treatment units and programs in hospitals located in Mesa, Arizona and Nevada, Missouri listed on Schedule 4.13. In the event that either or both of such Sellercontracts cannot be renewed to the satisfaction of the Purchaser and Seller is unable to provide one or more replacement contracts acceptable to Purchaser in its sole discretion prior to Closing, authorizing then Purchaser shall have the executionright to (i) terminate the Agreement, delivery and performance (ii) waive the condition to provide renewals or replacement contracts for the Ramsay contracts without a reduction in the Purchase Price or (iii) propose a reduction in the Purchase Price of not more than $300,000. If Purchaser proposes a reduction in the Purchase Price of any amount due to the Ramsay contracts not being renewed or replaced, the Sellers shall have the right to either accept the proposed reduction in the Purchase Price or to terminate this agreement on written notice to Purchaser. In the event that the Sellers accept the proposed reduction in the Purchase Price, then the provisions of Section 11.7 of this Agreement shall apply and continue for the time period specified in such Section. In the event of such termination by either the Sellers or Purchaser, neither party shall have any further rights or obligations hereunder except for confidentiality provisions of Section 7.4 and the Ancillary Agreements no solicitation provisions of Section 6.12 and 7.6 of this Agreement which provisions shall continue for the time periods specified in such Sections.
(k) On or prior to which such Seller is a partythe Closing, the consummation all unpaid subscriptions for outstanding shares of capital stock of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters Company set forth in Section 6.16(e), Schedule 3.2 shall have been paid in full so that all outstanding shares of capital stock of the Company shall be fully paid and (B) certifying as nonassessable on the date of Closing. The amount of all such subscriptions actually paid to the incumbency Company in good funds shall increase the $5,100,000 amount for the purposes of determining the officer(s) Purchase Price as so specified in Section 2.2 of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;Agreement.
(xxl) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person At the Closing, all the Sellers shall perform his or her or its respective obligations of and actions to be taken by all the Sellers at the Closing as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
10.2 of this Agreement such that, at the Closing, Purchaser will acquire not less than ninety-five percent (d95%) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed issued and delivered by outstanding capital stock of the parties thereto in the form previously distributed among them.Company determined
Appears in 1 contract
Samples: Stock Purchase Agreement (Horizon Mental Health Management Inc)
Conditions to Obligations of Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by perform under this Agreement are subject to the fulfillment satisfaction or written waiver, prior to or at waiver by the Closing, Purchaser of each of the following conditions; provided, however, that in no event may Purchaser waive conditions on or prior to the conditions contained in Section 7.2(d) or Section 7.2(e):Closing Date:
(a) Each concurrently with the Closing hereunder, the Transactions shall have been consummated pursuant to the terms and conditions of the Stock Purchase Agreement, the Commitment Letter, the WTM Equity Term Sheet and the Warrant Agreement, which shall not have been amended and the closing conditions therein waived in any material respect without the Purchaser's prior written consent;
(b) after giving effect to the consummation of the Transactions, the corporate and capital structure of WTM and its subsidiaries shall be as set forth in Exhibit B except for such changes as shall not adversely affect in any material respect the Purchaser;
(c) there shall not exist on the Closing Date any injunction or other order, or statute, rule or regulation, of any Governmental Authority preventing or prohibiting the consummation of the sale and purchase of the Securities hereunder;
(d) there shall have been received all necessary approvals from state insurance regulators with respect to the sale and purchase of the Securities;
(e) the acceptance of the filing with the Secretary of State of Delaware of the certificate of designation for the Series A Preferred Stock substantially in the form of Exhibit A;
(f) the representations and warranties of Sellers contained Newco set forth in ARTICLE IV of this Agreement that are qualified as to materiality shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) and those not so qualified shall be true and correct in all material respects as of the Closing Date as if though made on the Closing Date (except for to the extent any such representation or warranty speaks as of an earlier date, in which case such representations and warranties that speak qualified as of a specific date or time, which representations and warranties to materiality shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have those not had, or would not reasonably so qualified shall be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied true and correct in all material respects with on and as of such earlier date);
(g) Newco shall have performed in all agreements and material respects all obligations required by this Agreement to be performed by it under this Agreement at or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured IndebtednessDate; and
(xxivh) Newco shall have delivered to the Purchaser a written notice of the Closing three Business Days prior to the Closing Date, and on the Closing Date, prior to the sale and purchase of the Securities hereunder, an officer's certificate as to the satisfaction, to such officer's knowledge, of all books and records of Sellers described in Section 2.2(a)(xivthe conditions to the Purchaser's obligations hereunder (other than as to matters that have been waived by, or are within the knowledge or control of, the Purchaser).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Subscription Agreement (White Mountains Insurance Group LTD)
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are is subject to the fulfillment satisfaction at or written waiver, prior to or at the Closing, Closing of each and every one of the following conditions; providedconditions precedent, however, that in no event any or all of which may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):be waived by Purchaser:
(a) Each of the The representations and warranties of Sellers contained set forth in ARTICLE IV of this Agreement Articles V and VI shall be true and correct (disregarding for on and as of the purposes date of such determination any qualification as to materiality or Material Adverse Effect) this Agreement and as of the Closing Date with the same force and effect as if though made on and as of the Closing Date (except for representations giving effect to any “Knowledge” qualifiers and warranties that speak as of a specific date dollar thresholds, but without regard to any “materiality” or time, which representations and warranties shall be true and correct only as of such date or time“Material Adverse Effect” qualifications therein), except to the extent that any breaches representation and warranty is limited by its terms to a specific date or range of dates (in which case such representation and warranty need only be true and correct on or as of the date or during the range of dates so specified), except where the failure of such representations and warranties, individually or and in the aggregate, have not had, or to be true and correct would not reasonably be expected to have, have a Material Adverse Effect.
(b) Sellers shall have performed or and complied in all material respects with all of the agreements and obligations covenants required by under this Agreement to be performed or complied with by Sellers them prior to or at the Closing.
(c) Since the date of this Agreement, no Material Adverse Effect shall have occurred and be continuing.
(d) Sellers shall have delivereddelivered to Purchaser a certificate, or caused to be delivered, to Purchaser:
(i) a certificate executed by the Sellers’ Representative in his capacity as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacitysuch, certifying that the conditions set forth specified in Section 7.2(aSections 8.2(a), 8.2(b) and Section 7.2(b8.2(c) have been satisfied;fulfilled.
(iie) The relevant parties to each of the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests Transaction Documents (other than in respect Purchaser and any of the Equity Interests held its Affiliates) shall have entered into such Transaction Documents and (but for execution and/or delivery of such Transaction Documents by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35Purchaser or any of its Affiliates), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and Transaction Documents shall be in full force and effect.
(ef) The UAW Retiree Settlement Agreement Sellers shall have been delivered to Purchaser, free and clear of any Lien, duly executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part assignments of the Sale Approval OrderEquity Interests.
(fg) The Canadian Operations Continuation Agreement Sellers shall have been executed and delivered to Purchaser all other closing items to be delivered by Sellers under Article III.
(h) Each employee of a Company or the parties thereto in Company Subsidiary that is a party to an indemnification agreement with a Company or the Company Subsidiary shall (i) enter into the standard corporate indemnification agreement currently used by Purchaser for its officers, the form previously distributed among themof which has been furnished to the Sellers’ Representative, and (ii) agree to terminate and release the indemnification agreement to which such individual is currently a party.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Air Transport Services Group, Inc.)
Conditions to Obligations of Purchaser. (a) The obligations obligation of Purchaser to consummate the Purchase shall be subject to the satisfaction or, to the extent permitted by Applicable Law, waiver at or prior to the Closing Date, as applicable, of the following conditions:
(i) all corporate and other proceedings in connection with the transactions contemplated by this Agreement are subject and all documents and instruments incident to the fulfillment such transactions shall be satisfactory to Purchaser and its counsel, and Purchaser and its counsel shall have received all such counterpart originals or written waiver, prior to certified or at the Closing, other copies of each of the following conditions; provided, however, that in no event such documents as Purchaser or its counsel may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):reasonably request;
(aii) Each of the representations and warranties of the Sellers contained in ARTICLE IV of this Agreement and the Collateral Documents (considered collectively) and each of such representations and warranties that relate to the Tower Assets (considered individually and with respect to each Tower Asset and the Business) shall be true and correct (disregarding for in all material respects as of the purposes of such determination any qualification as to materiality or Material Adverse Effect) Effective Date and as of the Closing Date as if made on the Closing Date (except for to the extent that such representations and warranties that speak are made as of a specific date or timedate, in which case such representations and warranties shall be true and correct only as of such date or timedate), except without giving effect to any supplement to the extent that any breaches of such representations and warranties, individually or Disclosure Schedule except as provided in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.Section 5.2 hereof;
(biii) Sellers shall have performed or in all material respects each obligation and agreement to be performed by them, and shall have complied in all material respects with all agreements and obligations each covenant, required by this Agreement and the Collateral Documents to be performed or complied with by Sellers prior to or at the Closing.;
(civ) between the Effective Date and the Closing Date, no Material Adverse Effect shall have occurred and no Event shall have occurred that is reasonably expected to have a Material Adverse Effect;
(v) Sellers shall have deliveredobtained and delivered to Purchaser all Third Party Consents relating to the Tower Assets, or caused to be delivered, to Purchaser:and such Third Party Consents shall remain in full force and effect;
(ivi) Purchaser shall have received at the Closing, a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacityfrom each Seller, certifying that the satisfaction of the conditions set forth in Section 7.2(aSections 6.2(a)(ii), 6.2(a)(iii) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement6.2(a)(iv), duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect dated as of the Equity Interests held by Sellers in RHIClosing Date, Promark Global Advisors Limited, Promark Investments Trustees Limited and as the Delayed Closing Entities, which the Parties agree case may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authoritiesbe;
(vii) a government related subcontract agreementPurchaser shall have received an opinion of Sellers' counsel dated as of the Closing Date, substantially in the form of Exhibit "E" attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellershereto;
(viii) an omnibus intellectual property assignment agreementwith respect to each Site containing Tower Assets, substantially Purchaser shall have received, at Purchaser's expense, marked commitments for owners' and mortgagees' title insurance, in form and substance acceptable to Purchaser and Purchaser's lender, including the endorsements and affirmative coverages specified on Exhibit "F", and insuring fee title, in the form attached hereto as Exhibit T (case of Owned Properties, leasehold title, in the “Intellectual Property Assignment Agreement”)case of Leasehold Properties, duly executed by Sellersin each case, with no exceptions, other than exceptions for Permitted Exceptions;
(ix) a transition services agreementPurchaser shall have received Ground Lease Estoppels from Ground Lessors with respect to the Leasehold Properties which, substantially in the form attached hereto as Exhibit U together with Tower Cash Flow from Owned Properties, constitute no less than at least eighty percent (the “Transition Services Agreement”), duly executed by Sellers80%) of Tower Cash Flow;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels Purchaser shall have received, where applicable, a Non-Disturbance Agreement from each mortgagee of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Sellereach Ground Lessor;
(xi) all each document required Transfer Tax to be delivered at the Closing, pursuant to this Agreement or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Sellerany Collateral Document shall have been delivered;
(xii) an assignment Purchaser shall have received evidence satisfactory in substance and assumption form to Purchaser to the effect that (A) all Indebtedness for borrowed money has been paid and discharged, (B) all Liens on any of the leases Tower Assets, securing the Indebtedness for borrowed money have been released and subleases underlying the Leased Real Propertydischarged and (C) that Company has no obligation or liability (actual, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease contingent or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease otherwise) thereunder or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Propertyrelating thereto;
(xiii) an assignment Purchaser shall have received evidence satisfactory in substance and assumption form to Purchaser that all of the lease in respect Improvements related to each Owned Property and Leasehold Property lie wholly within the boundaries and building restriction lines of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by HarlemLand applicable to such Property;
(xiv) an omnibus lease agreement Purchaser shall have received (i) a copy of each outstanding NOTAM affecting any Tower as of two (2) business days prior to the Closing, and (ii) a list of such NOTAMs indicating, in respect each case, the period of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X time for which each such NOTAM has been outstanding (the “Master Lease Agreement”"NOTAM Report"), duly executed by Parent;
(xv) [Reserved];Purchaser shall have received evidence satisfactory in substance and form to Purchaser that as of the date of Closing Date, all Sites (including, but not limited to all Sites, if any, identified in Section 3.14(a) of the Disclosure Schedule) shall be in compliance with the representations and warranties set forth in items (i) through (viii) of Section 3.14(a), and all matters included on Section 3.14(a) of the Disclosure Schedule or disclosed in any environmental site assessment report with respect to any Site shall have been resolved to the satisfaction of Purchaser, in Purchaser's sole discretion; and
(xvi) All employees of the Saginaw Service ContractsCompany, if requiredany, duly shall have executed by the appropriate Seller;Release and Resignation Agreement and each manager and officer of the Company has executed a Resignation Letter.
(xviib) any easement agreements required under Section 6.27(c)Notwithstanding anything contained in this Agreement to the contrary, duly executed by (i) Purchaser may waive the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate satisfaction of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of one (1) or more conditions set forth in this Section 6.2 with respect to one (1) or more Tower Assets, (ii) the waiver of any such Seller’s Organizational Documents, each as amended through and in condition with respect to one Tower Asset shall have no effect on the Closing Date whether such condition is satisfied or waived with respect to any other Tower Asset and (2iii) resolutions of to the board of directors of extent any such Sellercondition is not waived with respect to any Tower Asset, authorizing such Tower Asset (and all other Tower Assets relating to the execution, delivery and performance of this Agreement Tower and the Ancillary Agreements Site to which such Seller is a partyTower Asset relates) shall not be sold, the consummation of the transactions contemplated by this Agreement assigned transferred and such Ancillary Agreements and the matters set forth in Section 6.16(e)conveyed hereunder, and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance Purchaser shall not assume any obligation or liability with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)respect thereto.
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Global Signal Inc)
Conditions to Obligations of Purchaser. The All obligations of Purchaser to consummate the transactions contemplated by under this Agreement are subject to the fulfillment fulfillment, at or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that any one or more of which may be waived in no event may writing by Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):its sole discretion:
(a) Each of the All representations and warranties of Sellers contained made by Vendor in ARTICLE IV of this Agreement and in any agreement referenced herein shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) in all material respects on and as of the Closing Date with the same force and effect as if made on the Closing Date (except for such representations and warranties that speak had been made on and as of such date. However, if a specific date representation and warranty is qualified by materiality or timematerial adverse effect, which representations and warranties shall it must be true and correct only in all respects. The Vendor shall have delivered to Purchaser a certificate of a senior officer of the Vendor, signed and dated as of such date or time)the Closing Date, except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effectforegoing effect.
(b) Sellers Vendor shall have fulfilled, complied with or otherwise performed or complied in all material respects with all agreements and obligations required by under this Agreement to be performed by it on or complied with by Sellers prior to or at the ClosingClosing Date. The Vendor shall have delivered to Purchaser a certificate of a senior officer of the Vendor, signed and dated as of the Closing Date, to the foregoing effect.
(c) Sellers Vendor shall have delivered, delivered or caused cause to be delivereddelivered all certificates, documents and agreements to Purchaser:which it is a party or signatory described in Article VI.
(id) a certificate executed as of the Closing Date by a duly authorized representative of SellersVendor shall sell, on behalf of Sellers assign and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser all of Vendor’s right title and interest in and to the Purchased Assets, each in a form reasonably satisfactory to Share and the Parties and duly executed by the appropriate Seller;Purchased Debt.
(ve) an omnibus assignment No order of any court or administrative agency shall be in effect which restrains or prohibits the transactions contemplated hereby, and assumption agreementthere shall not have been threatened, substantially in nor shall there be pending, any action or proceeding by or before any court or governmental agency or other regulatory or administrative agency or commission, challenging any of the form attached hereto as Exhibit Q (the “Assignment and Assumption transactions contemplated by this Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;.
(vif) a novation agreementThe following consents, substantially waivers, authorizations and approvals required in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together connection with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membershipAgreement, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effectduly obtained and/or assumed: Xxxxx Fargo Business Credit.
(eg) The UAW Retiree Settlement Agreement There shall have been executed and delivered by no loss, damage or destruction to the UAW and shall have been approved by Assets which materially impairs the Bankruptcy Court as part use or the value of the Sale Approval OrderAssets or the Company. The Company shall not have suffered any material adverse change in its financial condition, results of operations, assets, liabilities, or business.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Share and Debt Purchase Agreement (Miscor Group, Ltd.)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by under this Agreement are are, at the option of Purchaser, subject to the fulfillment condition that, at or written waiver, prior to or the Closing Date:
(a) This Agreement shall have been signed by each Seller obligating and committing it to sell to Purchaser the Shares to be sold to Purchaser hereunder, and each Seller shall, at the Closing, of each deliver to Purchaser all of the following conditions; provided, however, that Shares to be sold by it and each Seller shall in no event may Purchaser waive addition fully comply with the conditions contained in Section 7.2(d) or Section 7.2(e):
(a) Each of the representations terms and warranties of Sellers contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effectprovisions hereof.
(b) Sellers An amendment to the Shareholders' Agreement, which, among other things, deletes Article II from the Shareholders' Agreement, shall have performed been signed by each Seller, DLJMB and ZSVH II, L.P., and such Amendment shall be effective at or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at before the ClosingClosing Date.
(c) Sellers shall have deliveredAll of the terms, or caused covenants and conditions of this Agreement to be delivered, to Purchaser:
(i) a certificate executed as of complied with or performed by each Seller at or before the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) shall have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates complied with or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)performed.
(d) The UAW Collective Bargaining Agreement Uhlenhop shall have been ratified by executed an Amended and Restated Employment Agreement with the membershipCompany and Xxx Xxxxxxxx Corporation and an Amendment No. 3 to his Special Stock Option Grant Agreement, shall have been assumed by each on terms reasonably satisfactory to the applicable Sellers Company and assigned to Purchaser, and shall be in full force and effectXxx Xxxxxxxx Corporation.
(e) The UAW Retiree Settlement Agreement representations and warranties of each Seller set forth in Section 2.01 hereof shall have been executed be true in all material respects on and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval OrderClosing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date. The provisions of this paragraph (e) shall be self-executing, and each Seller, by having closed the sale of its stock hereunder, shall be deemed conclusively to have certified at Closing that all such representations and warranties were true in all material respects on and as of the Closing Date.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Stock Purchase Agreement (Von Hoffmann Holdings Inc)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are hereby shall be subject to the fulfillment satisfaction or written waiver, waiver at or prior to or at the Closing, of each Closing of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(aA) Each CBIZ and Seller shall have performed in all material respects all covenants and obligations contained herein to be performed by them at or prior to the Closing, and Purchaser shall have received certificates executed by the respective Presidents of the CBIZ and Seller to that effect;
(B) The representations and warranties of Sellers CBIZ and Seller contained in ARTICLE IV of this Agreement herein shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) accurate in all material respects on and as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time)date, except as contemplated or permitted by this Agreement, and Purchaser shall have received certificates executed by the respective Presidents of CBIZ and Seller to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.effect;
(bC) Sellers Purchaser shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at received the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaserfollowing:
(i1) a certificate executed copy of the resolutions of the Board of Directors of CBIZ, and of the Board of Directors of Seller, each certified as of the Closing Date by their respective Secretaries, authorizing and approving the negotiation and execution of this Agreement and the consummation of the transactions contemplated hereby; and
(2) a duly authorized representative copy of Sellersthe resolutions of Seller, on behalf in its capacity as sole shareholder of Sellers the Company, certified as of the Closing Date by its Secretary, authorizing and not in such authorized representative’s individual capacity, certifying that approving the conditions set forth in Section 7.2(a) negotiation and Section 7.2(b) have been satisfiedexecution of this Agreement and the consummation of the transactions contemplated hereby;
(iiD) the Equity Registration Rights AgreementSeller shall have delivered to Purchaser, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect upon receipt of the Equity Interests held Purchase Price, the certificate(s) evidencing ownership of the Shares by Sellers in RHISeller, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by separate stock powers (or similar documentationpower(s) duly endorsed executed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Stock Purchase Agreement (Century Business Services Inc)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement Closing are subject to the fulfillment satisfaction, or written waiver, prior to or the waiver at the ClosingPurchaser’s discretion, of each of the following further conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of Seller and the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date.
(b) All of the representations and warranties of Sellers Seller and the Company contained in ARTICLE IV of this Agreement shall be true and correct (in any certificate or other writing delivered by Seller or the Company pursuant hereto, disregarding for the purposes of such determination any qualification as all qualifications and expectations contained therein relating to materiality or Material Adverse Effect) as , regardless of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of whether it involved a specific date or timeknown risk, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements at and obligations required by this Agreement to be performed or complied with by Sellers prior to or as of the Closing Date, as if made at the Closingand as of such date.
(c) Sellers Purchaser shall have delivered, or caused to be delivered, to Purchaser:
(i) received a certificate executed as signed by Seller and an authorized officer of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that Company to the conditions effect set forth in Section 7.2(aclauses (a) and Section 7.2(b(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)6.2.
(d) The UAW Collective Bargaining Agreement Company shall have delivered to (i) the Purchaser the Company’s shareholder register with an official corporate seal, evidencing that the iFresh BVI’s name has been duly entered as a holder of the Equity Interests, and (ii) an investment certificate with an official corporate seal affixed thereto evidencing the iFresh BVI’s ownership of the Equity Interests immediately after the Closing.
(e) All approval and registration formalities as set forth in Section 2.3 hereof shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchasercompleted, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement effect as of the Closing Date, and the Company shall have been executed provided to Purchaser certified true copies of such approval and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Orderregistration documents.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Purchase Agreement (iFresh Inc)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment fulfillment, at or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the The representations and warranties of Sellers the Seller Parties contained in ARTICLE IV of this Agreement Agreement, the Ancillary Agreements and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purposes case of such determination any qualification as to representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as if though made on the Closing Date at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, the accuracy of which representations and warranties shall be true and correct only determined as of such that specified date in all respects).
(b) The Seller Parties shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Agreements to be performed or time)complied with by it prior to or on the Closing Date.
(c) From the date of this Agreement, except to the extent that there shall not have occurred any breaches of such representations and warrantiesMaterial Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, have not hadwith or without the lapse of time, or would not could reasonably be expected to have, result in a Material Adverse Effect.
(bd) Sellers Seller shall have performed or complied delivered to Purchaser duly executed counterparts to the Ancillary Agreements and such other documents and deliveries set forth in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the ClosingSection 3.3.
(ce) Sellers All Encumbrances relating to the Purchased Assets shall have deliveredbeen released in full, or caused other than Permitted Encumbrances, and the Seller Parties shall have delivered to be deliveredPurchaser written evidence, in form satisfactory to Purchaser:Purchaser in its sole discretion, of the release of such Encumbrances.
(if) Purchaser shall have received a certificate executed as of certificate, dated the Closing Date and signed by a duly authorized representative officer of Sellerseach of the Seller Parties, on behalf that each of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a8.2(a) and Section 7.2(b8.2(b) have been satisfied;.
(iig) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) have received a certificate of the Secretary or an officer Assistant Secretary (or equivalent officer) of each Seller (A) Party certifying that attached to such certificate thereto are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) all resolutions of adopted by the board of directors of such Seller, Seller Parties authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, and the consummation of the transactions contemplated by this Agreement hereby and such Ancillary Agreements and the matters set forth in Section 6.16(e)thereby, and (B) certifying as to the incumbency of the officer(s) of that all such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be resolutions are in full force and effecteffect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(eh) The UAW Retiree Settlement Agreement Seller Parties shall have been executed provided to Purchaser, via wire transfer to an account designated by Purchaser, the Prepaid Advertising Campaign Amounts and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval OrderExceptional Collections Amounts.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are Contemplated Transactions shall be subject to the Seller’s fulfillment or written Purchaser’s waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(ai) Each of the representations and warranties of Sellers Seller contained in ARTICLE IV of this Agreement III shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) in all respects at and as of the Closing Date with the same force and effect as if though made on by Seller at and as of the Closing Date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, which representations and warranties shall be true and correct only in all respects at and as of such date or timespecified date), except to where the extent that any breaches failure of such representations and warrantieswarranties to be true and correct, individually or in the aggregate, have not had, or would not reasonably be expected to have, have a Material Adverse Effect.material adverse effect on the Acquired Assets;
(bii) Sellers Seller shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement to be performed or complied with by Sellers prior to or at on the ClosingClosing Date;
(iii) All Encumbrances (other than Permitted Encumbrances) on the Acquired Assets shall have been released in full.
(civ) Sellers at or prior to the Closing, Seller shall have delivered, delivered or caused to be delivered, made available to Purchaser:
(iA) a certificate Bill of Sale, executed as by Seller, substantially in the form of Exhibit E attached hereto (the Closing Date by a duly authorized representative “Bill of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfiedSale”);
(iiB) the Equity Registration Rights a Patent Assignment and Assumption Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of saleSeller, substantially in the form attached hereto as Exhibit P F (the “Xxxx of SalePatent Assignment and Assumption Agreement”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vC) an omnibus assignment and assumption agreementExclusive Patent License Agreement executed by Seller, substantially in the form attached hereto as Exhibit Q G (the “Assignment and Assumption Exclusive Patent License Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxivD) all books and records such other documents, instruments of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membershipsale, shall have been assumed by the applicable Sellers and assigned to Purchasertransfer, conveyance, and shall be assignment reasonably necessary in full force and effectconnection with the Contemplated Transactions.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Asset Purchase Agreement (Arcadia Biosciences, Inc.)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Purchaser’s waiver, prior to at or at before the Closing, of each of the following conditions; provided: On the Closing Date, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):
(a) Each of the representations and warranties of Sellers Vendor contained in ARTICLE IV of this Agreement and any certificate or other writing delivered pursuant to this Agreement shall be true and correct (disregarding for in all respects as those representations and warranties had been made by the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date as if made Vendor on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers Date. Vendor shall have duly performed or and complied in all material respects with all agreements agreements, covenants and obligations conditions required by this Agreement to be performed or complied with by Sellers prior it before or on the Closing Date. The CSE shall have consented to the transactions contemplated hereunder and no Action shall have been commenced against Purchaser, Parent, Vendor or at the Corporation that would prevent the Closing.
(c) Sellers . No injunction or restraining order shall have deliveredbeen issued by any Governmental Authority and be in effect, which restrains or caused to be deliveredprohibits any transaction contemplated hereby. All approvals, consents and waivers that are listed in Section 3.05 of the Disclosure Schedules shall have been received and executed counterparts thereof shall have been delivered to Purchaser:
(i) , at or before the Closing. From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a certificate executed as of Material Adverse Effect. Purchaser shall have received a certificate, dated the Closing Date and signed by a duly authorized representative officer of SellersVendor, on behalf that each of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a6.02(a) and Section 7.2(b6.02(b) have has been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to . Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) have received a certificate of an officer the sole director of each Seller (A) Vendor certifying that (i) attached to such the certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) all resolutions of adopted by the board of directors of such Seller, Vendor authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e)Agreement, and (Bii) certifying as to all such resolutions are in full force and effect and are all the incumbency resolutions adopted in connection with the transactions contemplated by this Agreement. Purchaser shall have received a certificate of the officer(s) sole director of such Seller executing Vendor certifying the names and signatures of the officers of Vendor authorized to sign this Agreement and the Ancillary Agreements other documents to which such Seller is a party;
(xx) a certificate in compliance with Treasbe delivered under its terms. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined Purchaser shall have received resignations of the directors and officers of the Corporation under Section 897 of the Tax Code;
(xxi) 5.05. Vendor shall have delivered to Purchaser a certificate of good standing compliance (or its equivalent) for each Seller the Corporation from the Secretary corporate registrar with jurisdiction under the Laws in which the Corporation is incorporated. Vendor shall have delivered, or caused to be delivered, to Purchaser share certificates representing the Shares, free and clear of State Encumbrances, duly endorsed in blank or accompanied by forms of share transfers or other instruments of transfer duly executed in blank. Vendor shall have delivered, or caused to be delivered, to Purchaser a business extract from the Amsterdam Chamber of Commerce in respect of the State Corporation, showing Purchaser as the sole registered shareholder of Delaware;
(xxii) their written agreement the Corporation, such extract to treat be duly notarized as a true and correct copy by a civil-law notary, practising in Amsterdam. Vendor shall have delivered to Purchaser such other documents or instruments as Purchaser reasonably requests and are reasonably necessary to consummate the Relevant Transactions and the other transactions contemplated by this Agreement Agreement. Purchase being satisfied, in accordance its sole discretion, with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders outcome of its due diligence review of the secured Indebtedness; and
(xxiv) all books Corporation and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part contents of the Sale Approval OrderDisclosure Schedule.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Share Purchase Agreement
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are hereby shall be subject to the fulfillment fulfillment, on or written waiver, prior to or at the ClosingClosing Date, of each of the following conditions; provided, however, that any of which may be waived in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):
(a) Each of the representations and warranties of Sellers contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually whole or in the aggregate, have not had, or would not reasonably be expected part by Purchaser in a writing delivered to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers Seller prior to or at the Closing.
(ca) Sellers To the knowledge of Seller, the representations and warranties of Seller contained in this Agreement, or any other document or instrument delivered by Seller prior to or at the Closing, shall have deliveredbeen true and correct when made and, except as contemplated herein or caused therein, shall continue to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect correct on the Closing Date with the same effect as though made at such date; Seller shall have performed all obligations and (2) resolutions complied with all covenants required by this Agreement or such other document or instrument to be performed or complied with by them on or prior to the Closing Date; and Purchaser shall have received a Certificate of the board of directors of such Seller, authorizing executed by any officer authorized to execute such Certificate, dated the executionClosing Date and certifying as to the foregoing.
(b) No action, delivery and performance of this Agreement and the Ancillary Agreements suit or proceeding relating to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and shall be pending or threatened.
(Bc) certifying as Seller shall have title to the incumbency all of the officer(s) Property, free and clear of such Seller executing this Agreement all claims, liens, security interests, charges and the Ancillary Agreements encumbrances. The instruments of conveyance and transfer shall have been duly and validly executed and delivered and shall effectively vest in Purchaser title to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 all of the Tax Code;
(xxi) a certificate Property free and clear of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (includingany lien, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)security interest or encumbrance.
(d) The UAW Collective Bargaining Agreement Purchaser shall have completed its legal and financial review of the Property and all physical inventories taken by or on behalf of Seller, and the results of such review shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned satisfactory to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement No material adverse change shall have been executed and delivered by occurred in the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval OrderProperty.
(f) The Canadian Operations Continuation Glenx Xxxxxxxxx xxxll have executed the Non-Competition Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.attached hereto as Exhibit F.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Bollinger Industries Inc)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate complete the transactions contemplated by this Agreement are subject provided for herein shall be subject, at its election, to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the representations and warranties of Sellers contained in ARTICLE IV of this Agreement Purchaser shall be true and correct (disregarding have obtained financing for the purposes of such determination any qualification as Purchase Price on terms satisfactory to materiality or Material Adverse Effect) as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or timePurchaser, in its sole discretion, which representations financing must be actively and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effectdiligently pursued by Purchaser.
(b) Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed hereunder by any of them on or complied with by Sellers prior to or at before the ClosingClosing Date.
(c) Sellers All representations and warranties of each Seller contained in this Agreement shall have deliveredbe true and correct, or caused to be delivered, to Purchaser:
(i) a certificate executed on and as of the Closing Date in all respects as though made on and as of the Closing Date.
(d) From January 1, 2006 to the Closing Date, there shall not have been any adverse change in the Company's financial condition, assets, liabilities, or business other than changes in the usual and ordinary course of business or any damage, destruction, liability or loss, whether or not covered by a duly authorized representative insurance, from any cause whatsoever including but not limited to fire, condemnation proceeding, accident, or act of God adversely affecting the Company's assets or business, or any part thereof.
(e) On the Closing Date, no suit, action, or other proceeding shall be pending or threatened before any court or other governmental agency against Sellers, on behalf or either of Sellers and not them, or the Company in such authorized representative’s individual capacity, certifying that which damages or other relief in connection with the conditions set forth Company's business or in Section 7.2(a) and Section 7.2(b) have been satisfied;connection with this Agreement or the consummation of the transactions contemplated herein are sought.
(iif) On the Equity Registration Rights AgreementClosing Date, duly executed by Parent;
Sellers shall deliver or cause to be delivered to Purchaser the following: (iiii) one or more stock certificates or membership interest certificates, if any, evidencing representing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing EntitiesShares, which the Parties agree may shall be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by a stock powers (or similar documentation) power duly endorsed executed in blank, blank in proper form for transfer to transfer; (ii) a written certificate from the Sellers addressed to Purchaser, including any required stamps affixed thereto;
in form and substance satisfactory to Purchaser in its sole discretion, certifying that the representations set forth in Section 2 above are true and correct and that the Sellers have complied in all respects with the provisions of Sections 4 and 5 hereof; (iii) an opinion of Sellers' counsel addressed to Purchaser, in form and substance satisfactory to Purchaser's counsel, dated as of the date of delivery; and (iv) an omnibus xxxx such other documents as may reasonably be requested by Purchaser.
(g) Execution by Xxxxx XxXxx and the Company of sale, the employment agreement substantially in the form of Schedule A attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each referenced in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vparagraph 7(c) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)below.
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are Transactions shall be subject to the fulfillment satisfaction at or written waiver, prior to or at the Closing, Closing of each of the following conditions; provided, howeverany of which may be waived, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):writing, exclusively by Purchaser:
(a) Each of the representations and warranties of the Sellers contained in ARTICLE IV this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto that is qualified by materiality, including the terms “material,” “in all material respects” and “Material Adverse Effect” or words of this Agreement similar effect, shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) qualified on and as of the Closing Date as if made on the Closing Date (except for Date, and each of such representations and warranties that speak as of a specific date or time, which representations and warranties is not so qualified shall be true and correct only in all material respects on and as of such date or time)the Closing Date, except to the extent that any breaches of such representations and warrantieswarranties refer specifically to an earlier date, individually or in the aggregate, which case such representations and warranties shall have not had, or would not reasonably be expected to have, a Material Adverse Effectbeen true and correct as of such earlier date.
(b) Sellers Each Seller shall have performed or complied in all material respects with all agreements obligations and obligations covenants required by this Agreement to be performed or complied with by Sellers at or prior to or at the ClosingClosing Date.
(c) Sellers Purchaser shall have deliveredreceived a certificate, or caused to be delivered, to Purchaser:
(i) a certificate executed dated as of the Closing Date and signed by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacityeach Seller, certifying that each on the conditions set forth in Section 7.2(a8.1(a) and Section 7.2(b(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement There shall not have occurred a Material Adverse Effect, and no event shall have been ratified by the membershipoccurred or circumstance exist that, shall in combination with any other events or circumstances, could reasonably be expected to have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effecta Material Adverse Effect.
(e) The UAW Retiree Settlement Agreement There shall have been executed and delivered by not be any Action commenced or threatened against Parent, Purchaser, the UAW and shall have been approved by the Bankruptcy Court as part Company or any of the Sale Approval OrderSellers involving any challenge to, or seeking damages or other relief in connection with the Transactions or that may have the effect of preventing, delaying, making illegal, or otherwise interfering with the Transactions.
(f) The Canadian Operations Continuation Agreement Sellers shall have delivered to Purchaser the consents, waivers and approvals of the Persons identified on Schedule 8.1(f), in form and substance reasonably satisfactory to Purchaser.
(g) Executed resolutions of the board of managers of each of Mediture and eClusive evidencing that all actions necessary or appropriate to terminate the Plans as described in Section 7.4, effective no later than the day immediately preceding the Closing Date, have been taken.
(h) All Liens on the Company’s Assets other than Permitted Liens shall have been executed released in form and substance reasonably satisfactory to Purchaser.
(i) Each of the items set forth in Section 3.2(a) shall have been delivered by the parties thereto in the form previously distributed among themto Purchaser.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Tabula Rasa HealthCare, Inc.)
Conditions to Obligations of Purchaser. The All of the obligations of the Purchaser to consummate the transactions contemplated by under this Agreement are subject to the fulfillment or written waiver, prior to or at the Closing, Closing Date of each of the following conditions; provided, however, that in no event any one or more of which may Purchaser waive be waived by the conditions contained in Section 7.2(d) or Section 7.2(e):Purchaser:
(a) Each The Purchaser shall have received (i) a certificate, dated as of the Closing Date, signed by the Secretary of each of the Sellers and certifying as to the Charter, By-laws, incumbency of officers executing this Agreement and the other documents contemplated hereby to which each of the Sellers is a party and resolutions of the Board of Directors of the Sellers authorizing this Agreement and the other documents contemplated hereby to which each of the Sellers is a party and (ii) a certificate of an officer of each of the Sellers certifying as to the fulfillment of the conditions set forth in this Section 7.2.
(b) Except as otherwise permitted or contemplated by this Agreement and except for representations and warranties that by their terms speak only as of a specified date, each of the representations and warranties of the Sellers contained in ARTICLE IV of this Agreement herein shall be true in all material respects as of the date when made, shall be deemed to be made again at and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true at and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.Closing Date;
(bc) Sellers Prior to or at Closing, each Seller shall have performed or and complied in all material respects with all agreements and obligations required and satisfied in all material respects all conditions to be performed, complied with and satisfied by such Seller under this Agreement to be performed or complied with by Sellers and the other documents contemplated hereby prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if but not limited to, filing prior to Closing, or promptly thereafter, and at the Sellers' expense, all necessary documents in all relevant jurisdictions and/or at the Patent and Trademark Office, as applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders release and/or terminate all liens of the secured Indebtedness; and
(xxiv) any kind on all books and records of Sellers described in Section 2.2(a)(xivAcquired Assets).
(d) The UAW Collective Bargaining Agreement Purchaser shall have been ratified obtained all third-party consents required for consummation by it of the membership, shall have been assumed transactions contemplated by the applicable Sellers and assigned to Purchaser, and shall be in full force and effectthis Agreement.
(e) The UAW Retiree Settlement Agreement No material adverse change in the financial condition, results of operations, assets, liabilities, distribution, business or prospects (including any change resulting from governmental regulations or the loss of any permits, licenses or franchises) of the Corn Silk Business shall have been executed occurred between the date hereof and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.Closing Date;
(f) The Canadian Operations Continuation Agreement No federal, state or local governmental unit, agency, body or authority with competent jurisdiction over the subject matter shall have been given official written notice of its intention to institute proceedings to prohibit the transactions contemplated by this Agreement, or which would interfere with the use of the Acquired Assets or the operation of the Corn silk Business; and
(g) Each of the Sellers shall have executed and delivered by the parties thereto in other Closing Documents to which it is a party, including the form previously distributed among themManufacturing Agreement.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate carry out the transactions contemplated by this Agreement are subject subject, at the option of Purchaser, to the fulfillment satisfaction or written waiver, prior to or at the Closing, of each waiver by Purchaser of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the All representations and warranties of the Sellers contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) in all material respects at and as of the Closing Date as if made on Closing, and the Sellers, and each of them, shall have performed and satisfied in all material respects all agreements and covenants required by this Agreement to be performed and satisfied by them at or prior to the Closing.
(b) As of the Closing Date Date, no suit, action or other proceeding (except for representations and warranties that speak as excluding any such matter initiated by or on behalf of a specific date or time, which representations and warranties Purchaser) shall be true and correct only as of such date or time)pending or, except to the extent that Knowledge of the Sellers, threatened before any breaches court or governmental agency seeking to restrain Purchaser or prohibit the Closing or seeking damages against Purchaser or its properties as a result of such representations the consummation of this Agreement.
(c) Since the Balance Sheet Date and warrantiesup to and including the Closing, there shall not have been any event, circumstance, change or effect that, individually or in the aggregate, had or is reasonably likely to have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(bd) Sellers Purchaser shall have performed completed its due diligence investigation, and the results thereof shall not have revealed that any of the representations of the Sellers set forth herein are untrue or complied incorrect in all material respects with all agreements and obligations required by this Agreement any respect or otherwise unsatisfactory to be performed or complied with by Sellers prior to or at the ClosingPurchaser.
(ce) Sellers All proceedings to be taken by the Company in connection with the transactions contemplated hereby, including the waiver by the Company of any and all rights of first refusal to purchase the Sellers’ Shares, and all documents incident thereto shall be satisfactory in form and substance to Purchaser and its counsel, and Purchaser and said counsel shall have deliveredreceived all such counterpart originals or certified or other copies of such documents as it or they may reasonably request.
(f) The Board of Directors of Purchaser shall have approved this Agreement and Purchaser’s acquisition of the Sellers’ Shares contemplated hereby.
(g) No proceeding in which the Sellers, or caused any of them, or the Company shall be a debtor, defendant or party seeking an order for its own relief or reorganization shall have been brought or be pending by or against such person under any United States or state bankruptcy or insolvency law.
(h) The Purchaser shall have received copies of evidence, reasonably satisfactory to be deliveredit, of (i) the termination, repayment or extinguishment, at or prior to Purchaser:Closing, of all indebtedness of the Company, (ii) the conversion of the Xxxx Promissory Notes into Common Stock, and (iii) the exercise or conversion into shares of Common Stock of all outstanding option, warrants or other securities of the Company convertible into or exchangeable for shares of Common Stock.
(i) a certificate executed The Purchaser shall be provided with evidence reasonably satisfactory to it that the net debt of the Company as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;is $0.
(iij) Xxxx shall have executed and delivered to the Equity Registration Rights Agreement, duly executed by Parent;Company the Employment Agreement in the form attached hereto as Exhibit B.
(iiik) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following Purchaser shall have received on the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied Date an affidavit procured by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, Xxxx substantially in the form attached hereto as Exhibit P C.
(l) Purchaser shall be satisfied that it will be able to obtain all audited historical and unaudited pro forma Financial Statements with respect to the “Xxxx of Sale”)Company, if any, together with transfer tax declarations and all other instruments any required consent of conveyance the Company’s independent public accountants, that are necessary may be required to effect transfer to Purchaser of title to the Purchased Assets, each be included in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect Current Report on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445Form 8-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.K.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by under this Agreement are subject to the fulfillment or written waiver, prior to or at the Closing, of each conditional upon satisfaction of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) on or Section 7.2(e):prior to Closing:-
(a) Each compliance with rules regarding provision of financial assistance in Ireland;
(b) all authorisations, consents, orders and approvals of Government Authorities and officials listed in the representations Disclosure Letter having been obtained in form and warranties of Sellers contained in ARTICLE IV of this Agreement shall be substance reasonably satisfactory to the Purchaser;
(c) the Warranties being true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) when made and being true and correct as of the Closing Date other than such Warranties as if are made on the Closing Date (except for representations and warranties that speak as of a specific another date and the covenants and agreements contained in this Agreement to be complied with by the Sellers on or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or before Closing having been complied with in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by Purchaser having received a duly authorized representative of Sellers, on behalf of executed certificate from the Sellers and not in to such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfiedeffect;
(iid) no Action having been commenced or threatened by or before any Governmental Authority against the Equity Registration Rights AgreementSellers, the Purchaser, the Companies or any of them seeking to restrain or materially and adversely alter the transactions contemplated hereby which the Purchaser reasonably believes is likely to render it impossible or unlawful for any of the parties to perform 15 18 their obligations hereunder or which could have a Material Adverse Effect and the Purchaser having received a duly executed certificate of the Sellers to such effect in regard to the Sellers and the Companies; PROVIDED HOWEVER that this condition shall not apply to any Action solicited or encouraged by Parentthe Purchaser;
(iiie) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect receipt of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions certified copy resolution of the board of directors each of such Seller, authorizing the Sellers duly authorising the execution, delivery and performance by the Sellers of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation Deed of Tax Indemnity and the transactions contemplated by this Agreement hereby and such Ancillary Agreements and the matters set forth in Section 6.16(e), and thereby;
(Bf) certifying as to the incumbency receipt of a certificate of the officer(s) Secretary or Assistant Secretary of such Seller executing each of the Sellers certifying the names and signatures of each of the officers of the Sellers authorised to sign this Agreement and the Ancillary Agreements Deed of Tax Indemnity and the documents to which such Seller is a partybe delivered thereunder;
(xxg) GPA having delivered to the Purchaser a certificate of solvency in compliance the form set out in Schedule 6A or such other form as may be agreed with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax CodePurchaser;
(xxih) a certificate of good standing the Note Purchase Agreement and Other Transaction Documents having been duly entered into and having become unconditional in all respects save for each Seller from any conditions relating to this Agreement or the Secretary of State satisfaction of the State of Delawareconditions precedent hereunder;
(xxiii) their written agreement insofar as not already provided to treat the Relevant Transactions and Purchaser or held by the other transactions contemplated by Companies, receipt of:--
(i) the Leases (and, as regards the Aircraft with serial number 240, the head lease), or confirmation (in terms satisfactory to the Purchaser) that same are held to the order of the Purchaser or the relevant Company; and
(ii) delivery acknowledgements or bills of sale evidencing the title of the relevant Companies to the Aircraft PROVIDED that nothing in this Agreement Clause shall compel the Sellers to produce any original bills of sale at any location in accordance with Purchaser’s determination in Section 6.16the United Kingdom;
(xxiiij) payoff letters the Purchaser having determined that each member of the Seller Group has performed or caused to have performed on or prior to the Closing Date each covenant, agreement, delivery or condition to be performed or satisfied under all of the Leases on or prior to the Closing Date, the non-performance of which, taken as a whole, would materially affect the decision of a reasonable purchaser of the Notes to purchase Notes;
(k) receipt of certified copies of the reports of the Appraisers;
(l) receipt of the Deed of Tax Indemnity duly executed by the Sellers;
(m) receipt of the Disclosure Letter (including any supplements to the Closing Date). In form and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form substance reasonably satisfactory to the Parties Purchaser; and duly executed by the holders 16 19 (n) receipt of an option of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)Insurance Adviser.
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Share Purchase Agreement (Aerco LTD)
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment satisfaction or written waiver, waiver at or prior to or at the Closing, of each Closing of the following additional conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the The representations and warranties of Sellers contained the Company set forth in ARTICLE IV of this Agreement Article 2 shall be true and correct in all respects (disregarding for the purposes of such determination any qualification as to except that those representations and warranties that do not contain materiality or Material Adverse Effectqualifiers shall be true and correct in all material respects) as of the Closing Date with the same effect as if though made on the Closing Date (except for representations and warranties that speak as of a specific the date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.Closing;
(b) Sellers The Company shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed by it under this Agreement at or complied with by Sellers prior to or at the Closing.Effective Time;
(c) Sellers Purchaser shall have delivered, or caused to be delivered, to Purchaser:
(i) received a certificate executed dated as of the date of the Closing Date by a duly authorized representative of Sellers, and signed on behalf of Sellers Company by the Chief Executive Officer and not in such authorized representative’s individual capacity, certifying Chief Financial Officer of the Company to the effect that the conditions to Purchaser's obligations set forth in Section Sections 7.2(a) and Section 7.2(b(b) have been satisfied;
(iid) Purchaser shall have received from Harrxxxxxx, Xxppx & Xitcxxxx, Xxd., special counsel to the Equity Company, and Bryax Xxxx XXX, special FCC counsel to the Company, written opinions, dated as of the Effective Time and substantially in the respective forms contained in Exhibits A and B attached hereto or otherwise in form and substance reasonably satisfactory to Purchaser;
(e) There shall not have occurred any Company Material Adverse Effect from the Company Balance Sheet Date to the Effective Time;
(f) All consents required of third parties in respect of Company Material Contracts shall have been obtained except for such consents, the failure of which to obtain would not reasonably be expected to have a Company Material Adverse Effect;
(g) The shares owned by stockholders of the Company who have exercised their dissenters rights under Ohio Law shall constitute not greater than five percent (5%) of the outstanding shares of the Company Common Stock on the Closing Date;
(h) Holders of at least two-thirds of the outstanding Company Options shall have consented to receive cash for such Company Options in accordance with the provisions of Section 1.5; and
(i) The Stockholders' Agreement and Registration Rights Agreement, duly executed by Parent;
(iiieach dated June 20, 1997 among the Company, J. D. Xxxxxxxxxx, XX, X. P. Xxxxxxxxxx, XXI and Boston Ventures Limited Partnership V, as amended, the Employment Agreements referenced in SCHEDULE 2.12(d) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect Jeff Xxxx'x Xxxloyment Agreement) and any agreement between the Company or SCI and Boston Ventures Limited Partnership V or any of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank its affiliates shall have been terminated without cost or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title obligation to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto Company other than as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e)this Agreement, and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement Purchaser shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effectreceived written confirmation thereof.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate consummate, or cause to be consummated, the transactions contemplated by this Agreement are is subject to the fulfillment or written waiver, prior to or at the Closing, of each satisfaction of the following additional conditions; provided, however, that any one or more of which may be waived in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):writing by Purchaser:
(a) Each each of the representations and warranties of Sellers contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) in all material respects as of the Closing Date Date, as if made anew on the Closing Date and as of such date (except for with respect to representations and warranties that speak as of a specific date or timeto an earlier date, which representations and warranties shall be true and correct only in all material respects on and as of such date or timeearlier date), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.;
(b) each of the covenants and agreements of Sellers to be performed as of or prior to the Closing shall have been performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.respects;
(c) Sellers since the date of this Agreement, there shall not have occurred any Material Adverse Effect;
(d) Equity Seller shall have delivereddelivered to Purchaser a certificate, or caused to be deliveredsigned by an officer of Equity Seller, to Purchaser:
(i) a certificate executed as of dated the Closing Date by a duly authorized representative of SellersDate, certifying, on behalf of Sellers Sellers, that, to the knowledge and not in belief of such authorized representative’s individual capacityofficer, certifying that the conditions set forth specified in Section 7.2(a10.2(a) and Section 7.2(b10.2(b) have been satisfied;
(iie) the Equity Registration Rights Agreement, duly executed by ParentSellers shall have delivered to Purchaser all third party consents set forth on Schedule 10.2(e);
(iiif) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect The members of the Equity Interests held by Sellers in RHIAcquired Entity shall have authorized and approved the Amendment to the JV Agreement, Promark Global Advisors Limited, Promark Investments Trustees Limited and with such Amendment to the Delayed Closing Entities, which JV Agreement to be effective as of the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed theretoClosing;
(ivg) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer Each Seller shall have delivered to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto non-foreign affidavit dated as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States)Closing Date, sworn under penalty of perjury and in customary form, subject only form and substance required under the Treasury Regulations issued pursuant to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption Section 1445 of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with Code stating that such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under in Section 897 1445 of the Tax Code;
(xxih) The Acquired Entity shall have established a certificate of good standing separate bank account for each Seller from the Secretary of State of P109 Project and all Retained P109 Cash shall have been deposited in such separate bank account for the State of DelawareP109 Project;
(xxiii) their written agreement Seller shall have complied with the bulk sales notice and filing requirements pursuant to treat Section 6107 of the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16Guam Uniform Commercial Code;
(xxiiij) payoff letters Environmental Chemical Corporation, a Kentucky corporation and related Encumbrance-release documentation a member of the Acquired Entity (including, if applicable, UCC-3 termination statements“ECC”), each shall have executed and delivered to Purchaser, in a form approved by Purchaser in its discretion, an agreement (the “ECC Release and Waiver”) stating that ECC agrees that it waives, releases and covenants not to make any claims against (i) Purchaser or any of its Affiliates related to amounts owed to ECC or the Acquired Entity by Equity Seller or any of its Affiliates or (ii) the P-109 Project in connection with any matter occurring on or prior to the Closing or any act or omission of Equity Seller or any of its Affiliates, except for (x) $347,353.32 to be paid by Pernix as follows: $150,000 shall be paid within five (5) days after Equity Seller’s membership interest in Acquired Entity is transferred to Purchaser, and (b) the balance of $197,353.52 shall be paid on or before July 31, 2015, and (y) ECC’s right to pursue change orders requests in the ECC MEC P-109 Subcontract in the amount of $181,888.92 as described in Exhibit A to the ECC Release and Waiver;
(k) Liberty shall have executed and delivered to Purchaser an agreement substantially in the form attached as Exhibit H hereto;
(l) Zurich shall have executed and delivered to Liberty an agreement, in form and substance reasonably acceptable to Purchaser, indemnifying Liberty from any claims made with respect to the P109 Bond issued by Liberty;
(m) Asset Seller shall have paid all Accrued Vacation Amounts to the employees hired by Purchaser pursuant to Section 8.2(a); and
(n) The U.S. Navy shall have agreed in writing to the replacement of Liberty’s bond on the P109 Project with a new bond on the P109 Project from Zurich, in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned acceptable to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement such agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part to Purchaser; provided however that replacement or return of the Sale Approval OrderLiberty bond shall be deemed to be such an agreement in writing.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate at the transactions contemplated by this Agreement Closing are subject to the fulfillment satisfaction, at or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive which shall be deemed satisfied upon the conditions contained in Section 7.2(d) or Section 7.2(e):occurrence of the Closing:
(a) Each of the representations and warranties of Sellers contained each Seller set forth in ARTICLE IV of this Agreement that are qualified as to materiality shall be true and correct and those that are not so qualified shall be true and correct in all material respects, in each case, as of the date hereof and (disregarding for except to the purposes extent such representations and warranties speak as of such determination any qualification as to materiality or Material Adverse Effectan earlier date) as of the Closing Date as if though made on the Closing Date (except for representations at and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.Closing;
(b) Sellers each Seller shall have performed or complied in all material respects with all the covenants and agreements and obligations which Seller was required by this Agreement to be performed perform or complied with by Sellers satisfy at or prior to the Closing or at the Closing.performance of any such covenant or agreement not so performed shall have been waived in writing by Purchaser;
(c) Sellers except for approvals not customarily and appropriately obtained from the MMS prior to a closing, Purchaser shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blankreceived evidence, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to Purchaser and its counsel, that all permits, consents, approvals, licenses, qualifications and orders required by governmental authorities, or the Parties and duly executed terms of the Interests, for ownership of the Interests by Purchaser to be obtained prior to the appropriate SellerClosing have been obtained or waived;
(vd) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds no action or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease proceeding shall be executed in pending or threatened before a form substantially similar court, arbitrator or governmental authority seeking to Exhibit V restrain or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, prohibit the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as or to the incumbency of the officer(s) of such Seller executing obtain substantial damages from Purchaser related to this Agreement and the Ancillary Agreements to which such Seller is a partyAgreement;
(xxe) a certificate Since the Effective Time, there shall have been no material adverse change in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 the condition of the Tax CodeLeases or the Equipment, except for Casualty Losses to the extent coverage is provided under one or more policies of insurance, depletion through normal production, changes in rates of production that occur in the ordinary course of operation, depreciation of the Equipment through ordinary wear and tear, and changes in general economic conditions and product pricing generally affecting the offshore Gulf of Mexico oil and gas industry;
(xxif) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxiiall consents listed in Schedule 3.1(o) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form shall have been obtained on terms reasonably satisfactory to the Parties and duly executed by the holders of the secured IndebtednessPurchaser; and
(xxivg) all books HHOC shall be in compliance with its obligations under the Merger Agreement, or such obligations shall have been waived in writing by Purchaser, and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining the closing under the Merger Agreement shall have been ratified by occurred simultaneously with the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effectClosing.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The All of the obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment satisfaction at or written waiver, prior to or at the Closing, Closing of each and every one of the following conditions; providedexpress conditions precedent, however, that in no event any one or more of which may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):be waived by Purchaser:
(a) 7.1.1 Each of the representations and warranties of Sellers the Company Stockholders contained in ARTICLE IV in: (a) Section 4.1, 4.5, 4.6, 5.2, 5.3 and 5.5 of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) in all respects as of the Closing Date with the same force and effect as if though made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations such date; and warranties (b) all other Sections of this Agreement shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects on and as of the Closing Date with the same force and effect as through made on and as of such date.
7.1.2 The Company Stockholders shall have performed and complied: (a) in all respects with all agreements of the agreements, covenants and obligations required by under Sections 2.3.1, 2.7, 2.8, 6.5 and 6.6 of this Agreement to be performed or complied with by Sellers the Company Stockholders prior to or at the Closing; and (b) in all material respects with all of the other agreements, covenants and obligations required under this Agreement to be performed or complied with by the Company Stockholders prior to or at the Closing.
(c) Sellers 7.1.3 The Company Stockholders shall have delivereddelivered to Purchaser a certificate, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not certifying in such authorized representative’s individual capacitydetail as Purchaser may reasonably request, certifying that the conditions set forth specified in Section 7.2(a) Sections 7.1.1 and Section 7.2(b) 7.1.2 have been satisfied;fulfilled.
(ii) 7.1.4 All filings that are required to have been made by the Equity Registration Rights AgreementCompany Stockholders, duly executed the Company or the Subsidiary with any Authority in order to carry out the transactions contemplated by Parent;this Agreement shall have been made, and all authorizations, consents and approvals from all Authorities required to carry out the transactions contemplated by this Agreement shall have been received.
(iii) stock certificates 7.1.5 There shall be in force no claim, proceeding, action, order or membership interest certificatesdecree by or before any court or Authority of competent jurisdiction restraining, if anyenjoining, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHIprohibiting, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank invalidating or accompanied by stock powers otherwise preventing (or similar documentationseeking to prevent) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated hereby.
7.1.6 No proceeding in which any Company Stockholder, the Company or the Subsidiary shall be a debtor, defendant or party seeking an order for its own relief or reorganization shall have been brought or be pending by this Agreement or against such Person under any United States or state bankruptcy or insolvency Law.
7.1.7 Purchaser shall have received certificates issued by the Secretaries of State of the States of Delaware and such Ancillary Agreements Tennessee, as of a date reasonably acceptable to Purchaser, as to the good standing of the Company and the matters set forth Subsidiary, respectively, in Section 6.16(e)each such state. In addition with respect to those Company Stockholders which are not individuals, and Purchaser shall have received (Ba) certifying a certificate of the applicable officer or partner of each such Company Stockholder as to the incumbency and signatures of the officer(s) of such Seller Person executing this Agreement on behalf of such Company Stockholder, and the Ancillary Agreements to which such Seller is a party;
(xxb) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from issued by the Secretary of State of the state in which each such Company Stockholder is organized, as of a date reasonably acceptable to Purchaser, as to the good standing of such Company Stockholder in such state.
7.1.8 The Company Stockholders shall have delivered to Purchaser such resignations of the officers and directors of the Company and the Subsidiary as Purchaser may request.
7.1.9 Purchaser shall have received the Opinion of Counsel to the Company Stockholders.
7.1.10 Since the date of the Bid Balance Sheet there shall have been no material adverse change in (or event or circumstance occurring that, with the passage of time, is reasonably likely to result in a material adverse change in) the business, assets, properties, results of operations or financial condition of the Company and the Subsidiary, taken as a whole.
7.1.11 Funding pursuant to the financing commitments referred to in Section 3.10 hereof shall have occurred.
7.1.12 At or prior to the Closing, the Company Stockholders shall have delivered to Purchaser:
(a) a copy of the Articles or Certificate of Incorporation of each of the Company and the Subsidiary, as amended to date, certified as of the recent date by the Secretary of State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders state of the secured Indebtednessincorporation of that corporation; and
(xxivb) all books corporate minute books, stock transfer books, blank stock certificates and records corporate seals of Sellers described in Section 2.2(a)(xiv)the Company and the Subsidiary.
(d) 7.1.13 The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Escrow Agreement shall have been executed and delivered by the UAW Escrow Agent and the Company Stockholders.
7.1.14 All proceedings, corporate or other, to be taken in connection with the transactions contemplated by this Agreement by the Company Stockholders, the Company and the Subsidiary, and all documents incident thereto, shall be reasonably satisfactory in form and substance to Purchaser, and the Company Stockholders shall have been approved made available to Purchaser for examination the originals or true and correct copies of all documents Purchaser may reasonably request in connection with the transactions contemplated by the Bankruptcy Court as part of the Sale Approval Orderthis Agreement.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate effect the transactions contemplated by this Agreement are shall be subject to the fulfillment on or written waiver, prior to or at the Closing, of each Closing Date of the following conditions; provided, however, that unless Purchaser shall waive such fulfillment in no event may Purchaser waive the conditions contained whole or in Section 7.2(d) or Section 7.2(e):part in writing:
(a) Each of the The representations and warranties of the Sellers contained and the Company set forth in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) at and as of the Closing Date as if though made on at and as of the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time)Date, except to the extent that any breaches of such representations and warranties, individually warranties are not true and correct by reason of actions permitted or authorized by this Agreement or consented to in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effectwriting by Purchaser.
(b) Sellers shall have each performed or complied in all material respects with all covenants and agreements and obligations required by this Agreement to be performed by them under this Agreement at or complied with by Sellers prior to or at the ClosingClosing Date.
(c) Sellers The Purchaser shall have delivered, or caused to be delivered, to Purchaserreceived:
(i) a certificate executed Certificates as to the existence and good standing (or other appropriate certificates) of the Company from its jurisdiction of incorporation and any jurisdiction in which it is qualified as of a date not more than 20 days before the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfiedClosing;
(ii) A true and correct copy of the Equity Registration Rights Agreement, duly executed certificate of formation of the Company certified as true and correct by Parent;the Secretary of State or other appropriate governmental official of the Company's respectively jurisdiction of incorporation and a copy of the operating agreement of the Company certified as true and correct by the Secretary of the Company.
(iii) stock certificates Certificates from the appropriate governmental agency or membership interest certificates, if any, evidencing official in each jurisdiction where the Transferred Equity Interests (other than in respect Company conducts business operations as to the results of a search of the Equity Interests held by Sellers appropriate governmental records of any UCC-1 financing statements filed of record under the name of the Company as the debtor which search results shall reflect no UCC-1 financing statement of record evidencing any kind of lien or security interest in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which assets of the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;Company.
(iv) an omnibus xxxx The Purchaser shall have received such other certificates, instruments and other documents as the Purchaser or its counsel may reasonably require in order to consummate with the transactions contemplated hereby all of sale, substantially which shall be in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer substance satisfactory to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;its counsel.
(vd) Purchaser shall have received an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on opinion dated the Closing Date of David T. Mercer, counsel to the Sellers, in form and substance reasonxxxx xxxxxxxxxxry to Purchaser to the effect that (2i) resolutions the Company is a limited liability company organized, validly existing and in good standing under the laws of its state of incorporation, has the corporate power to own or lease its properties and carry on its business as now conducted, and is duly qualified as a foreign corporation in California and Michigan; (ii) the outstanding member interests of the board of directors Company and the record and beneficial owners of such Sellermember interests are as set forth in Exhibit A to this Agreement (as the same may be amended); (iii) the outstanding member interests of the Company owned by the Sellers are free of preemptive rights and, authorizing the to such counsel's knowledge, subject to no options, warrants or rights to purchase or acquire any of such member interests by conversion or exchange of securities or otherwise; (iv) Obstetrical Nurses, Inc. has full corporate power to execute, deliver and perform this Agreement, and all corporate action of Obstetrical Nurses, Inc. necessary for such execution, delivery and performance has been duly taken; (v) neither the execution or delivery of this Agreement nor the performance hereof or thereof by the Company or a Seller will conflict with or result in the breach of any term of, or constitute a default under, the certificate of formation or operating agreement of the Company or any statute, rule or regulation applicable to the Company; and (vi) this Agreement and the Ancillary Agreements agreements contemplated by this Agreement have been validly executed by each of the Sellers and each such agreement constitutes legal, valid and binding obligations of such parties, enforceable in accordance with its terms except to which the extent that enforceability may be limited by applicable liquidation, conservatorship, bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting the enforcement of creditors' rights from time to time in effect, and general principles of equity. In giving such Seller is a partyopinion, such counsel may limit their opinion to the laws of the State of California and the United States of America and rely upon opinions of other counsel and certificates of public officials, the consummation Sellers and officers of the Company provided that with respect to opinions of other counsel such other counsel states that Purchaser is entitled to rely thereon. All such opinions may include assumptions, qualifications, and comments as are generally contained in legal opinions given in transactions similar to the transaction contemplated by this Agreement.
(e) No inquiry by any governmental agency or instrumentality shall have been made which would or could, and no action, suit or proceeding shall have been asserted, threatened or instituted to, and no decree, injunction or judgment shall have been entered, restrain or prohibit the carrying out of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e)or any part thereof, and (B) certifying as or to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance recover damages with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (includingrespect thereto, or which, if applicablesuch transactions are consummated, UCC-3 termination statements)would materially and adversely affect the business, each in a form reasonably satisfactory to properties or assets of Purchaser or the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval OrderCompany.
(f) The Canadian Operations Continuation All consents, waivers or approvals from any third party (including any required consents of third parties or any federal, state or local governmental agency or instrumentality consents) as may be necessary or appropriate in connection with Purchaser's execution and delivery of this Agreement or the consummation of the transactions contemplated hereby shall have been executed obtained.
(g) Since the Company Balance Sheet Date, there shall not have occurred any material adverse change in, or other event or condition of any character which in any one case or in the aggregate has materially adversely affected, or can be reasonably expected in any one case or in the aggregate to materially adversely affect in the future, the condition (financial or otherwise), assets, liabilities, results or operations, business or prospects of the Company.
(h) The Company shall have terminated its line of credit bank agreement with First Bank and provided to Purchaser satisfactory documentation of such termination and a UCC termination statement and any other documentation necessary to release all liens and security interests held by such bank in the assets of the Company.
(i) The Company shall have received (and delivered copies thereof to Purchaser) duly executed resignation letters from Lara Mac and Steven MacEachern from all positions as a manager and officer of the Xxxxxxx, xxxx xx which resignations shall be effective on the Closing Date and shall acknowledge that there are no obligations, liabilities or amounts due from the Company to such respective individual; provided that such release shall not apply to any vested rights under any pension plan of the Company or any rights to indemnification by the parties thereto Company for acts in their capacities as officers or employees of the Company arising out of matters occurring prior to the Closing Date but such indemnification shall not be applicable to any matter or claim as to which such party is obligated to indemnify the Company and Purchaser under this Agreement.
(j) The Company shall have entered into employment agreements with certain key employees of the Company designated by Purchaser in form previously distributed among themand substance and on terms satisfactory to Purchaser.
(k) The Sellers shall have assigned and released to the Company all their right, title and interest in and to the tradename "ProCare One Nurses" and "ProCare Nurses."
(l) On the Closing Date, the Company shall not hold any assets consisting of receivables owed to the Company by a Seller or any affiliate of a Seller.
(m) The Company shall have received a written assignment of the office lease to its offices in Michigan and the consent of the landlord to such assignment.
(n) Lara Mac shall have consented to the change of control of the Company for the purposes of the two leases to the Santa Anna, California office of the Company and amended such leases to refxxxx the expiration date of the term of each such lease as December 31, 2005.
(o) The Company shall have received an acknowledgment of ownership or a written license agreement for the computer software program known as "Super Staffer" utilized by the Company in its California operations and for the computer software program known as the "Scheduler" utilized by the Company in its Michigan operations, both on terms satisfactory to Purchaser.
(p) At the Closing, all the Sellers shall perform their obligations under this Agreement.
Appears in 1 contract
Samples: Member Interests Purchase Agreement (Horizon Health Corp /De/)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are will be subject to the fulfillment (or written waiver, prior to or at the Closing, of each waiver by Purchaser in its sole discretion) of the following conditions; provided, however, that in no event may Purchaser waive conditions on or prior to the conditions contained in Section 7.2(d) or Section 7.2(e):Closing Date:
(a) Each of the representations and warranties of Sellers the Seller Parties contained in ARTICLE IV of this Agreement shall that are qualified by materiality will be true true, accurate and correct (disregarding for complete, and the purposes representations and warranties of such determination any qualification the Seller Parties contained in this Agreement that are not so qualified will be true, accurate and complete in all material respects, in each case as to materiality or Material Adverse Effect) of the date hereof and on and as of the Closing Date with the same effect as if though made on the Closing Date (at such time, except for representations changes expressly contemplated by this Agreement and warranties except for any particular representation or warranty that speak specifically addresses matters only as of a specific particular date or time, (which representations and warranties shall be will remain true and correct only as of such date or timedate), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.;
(b) Sellers shall the Seller Parties will have duly performed or and complied in all material respects with all of their covenants, obligations and agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to the Seller Parties on or at before the Closing.Closing Date;
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) no Applicable Law will have been satisfied;
(ii) the Equity Registration Rights Agreementenacted or made effective and no order, duly executed by Parent;
(iii) stock certificates judgment, decree or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment decision of any lease Governmental Authority will have been issued or sublease underlying a Leased Real Property made that a separate assignment and assumption for such lease serves to restrain, enjoin or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, prohibit the consummation of the transactions contemplated by this Agreement hereby, no Proceeding will have been commenced and such Ancillary Agreements and be continuing that seeks to restrain, enjoin or prohibit the matters set forth in Section 6.16(e)consummation of the transactions contemplated hereby, and (B) certifying as no antitrust agency shall have threatened to restrain, enjoin or prohibit the incumbency consummation of the officer(s) transactions contemplated hereby or impose terms or conditions that would reasonably be expected to have a Material Adverse Effect (which would be deemed to include the divestiture, or placement in trust or similar arrangement, of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a partyCompany, the Subsidiary or any material assets or business thereof);
(xxd) no event, occurrence, fact, condition, change, development, or circumstance will have occurred since the date of this Agreement which has or would reasonably be expected to have a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax CodeMaterial Adverse Effect;
(xxie) the Seller Parties will have obtained the Company Required Consents, the failure of which to obtain would have or would be reasonably likely to have, individually or in the aggregate, a certificate of good standing for each Seller from the Secretary of State of the State of DelawareMaterial Adverse Effect;
(xxiif) their written agreement Purchaser will have obtained the Purchaser Required Consents, the failure of which to treat obtain would prevent, materially delay or materially impair Purchaser's ability to consummate the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16Agreement;
(xxiiig) payoff letters Purchaser will have received the deliverables required to be made to it pursuant to Section 2.5;
(h) the Company or Subsidiary key employees identified on Schedule 7.2(h) shall have entered into retention/confidentiality/non- compete agreements with the Company and/or the Subsidiary substantially in the form set forth in Exhibit D with such economic terms as are disclosed by Purchaser to the Seller Parties;
(i) the DOE and related Encumbrance-release documentation the NRC, or their respective staffs, shall have consented, or Purchaser shall have otherwise obtained adequate assurance to its sole satisfaction that there is no objection by the DOE or the NRC, or their respective staffs, to the operation by the Subsidiary of the Nuclear Materials Management and Safeguards System database (including"NMMSS") after the Closing Date, on such terms and conditions, if applicableany, UCC-3 termination statementswhich would not have or reasonably be expected to have a Material Adverse Effect (it being understood that terms or conditions which materially impact the economic benefit of the operation by the Subsidiary of NMMSS after the Closing Date, or that require the divestiture, or placement in trust or similar arrangement, of the Company, the Subsidiary or any material assets or business thereof, would be deemed to be a Material Adverse Effect);
(j) no Proceeding will have been commenced, each in and be continuing, by or on behalf of a form reasonably satisfactory Minority Shareholder or relating to the Parties and duly executed by Preliminary Merger which has or would reasonably be expected to have a Material Adverse Effect or a material adverse effect on Purchaser or the holders of the secured Indebtednesstransactions contemplated hereby; and
(xxivk) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement Purchaser shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaserbe reasonably satisfied that there has not been, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by there is not reasonably likely to be, a materially adverse development with respect to the UAW and shall have been approved by the Bankruptcy Court as part NRC licensing of the Sale Approval OrderNew Cask Technology, including the timing of completion thereof.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Stock Purchase Agreement (Usec Inc)
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment satisfaction or written waiver, waiver at or prior to or at the Closing, Closing of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of Except for nonperformance or noncompliance with agreements or covenants that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, Sellers shall have performed and complied with all agreements and covenants required to be performed and complied with by Sellers under this Agreement at or prior to the Closing;
(b) The representations and warranties of Sellers contained in ARTICLE Articles III and IV of this Agreement and of TDCC in Article IIIA of this Agreement shall be true and correct (disregarding for at and as of the purposes date of such determination any qualification as to materiality or Material Adverse Effect) this Agreement and at and as of the Closing Date as if made though restated on the Closing Date and as of such date (except for representations and warranties in the case of any representation or warranty that speak by its terms is made as of a specific date specified therein, in which case such representation or time, which representations and warranties warranty shall be true and correct only as of such date or timedate), except where the failure of one or more representations or warranties to the extent that any breaches of such representations be true and warrantiescorrect, individually or in the aggregate, have not had, or would not reasonably be expected to have, result in a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.;
(c) Sellers Purchaser shall have delivered, received the documents referred to in Section 2.04; (d) Purchaser shall have received from Sellers the executed agreements or caused arrangements referred to be delivered, to Purchaser:in Section 6.06;
(ie) Purchaser shall have received from each Seller a certificate executed signed by an appropriate officer of each Seller as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in to such authorized representative’s individual capacity, certifying that Seller's compliance with the conditions set forth in Section 7.2(aparagraphs (a) and (b) of this Section 7.2(b) have been satisfied7.03;
(iif) the Equity Registration Rights AgreementPurchaser shall have received from Xxxxx Xxxxx & Xxxxx, duly executed by Parent;
(iii) stock certificates or membership interest certificatesSellers\rquote counsel, if any, evidencing the Transferred Equity Interests (other than in respect an opinion of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer counsel relating to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, this transaction substantially in the form attached hereto as of Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate SellerD;
(vg) Purchaser shall have received from Graves, Dougherty, Xxxxxx & Xxxxx, the Company's counsel, an omnibus assignment and assumption agreement, opinion of counsel relating to this transaction substantially in the form attached hereto as of Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured IndebtednessE; and
(xxivh) all books the representations and records warranties of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers 4.22 and assigned to Purchaser, and Section 4.23 shall be in full force true and effectcorrect at and as of May 31, 1998.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are Closing is subject to the fulfillment satisfaction, or written waiver, prior to or the waiver at the ClosingPurchaser’s sole and absolute discretion, of each of all the following further conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each The Company shall have duly performed all of its obligations hereunder required to be performed by it at or prior to the Closing Date.
(b) All of the representations and warranties of Sellers the Company contained in ARTICLE IV of this Agreement shall be true Agreement, the Additional Agreements and correct (in any certificate delivered by the Company pursuant hereto, disregarding for the purposes of such determination any qualification as all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, regardless of whether it involved a known risk, shall: (i) be true, correct and complete at and as of the date of this Agreement (except as provided in the disclosure schedules or as provided for in Article IV), or, (ii) if otherwise specified, when made or when deemed to have been made, and (iii) be true, correct and complete as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or timeDate, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have case of (i) and (ii) with only such exceptions as could not had, or would not in the aggregate reasonably be expected to have, have a Material Adverse Effect.
(bc) Sellers There shall have performed been no event, change or complied in all material respects with all agreements and obligations required by this Agreement to be performed occurrence which individually or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all any other instruments event, change or occurrence, could reasonably be expected to have a Material Adverse Effect, regardless of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in whether it involved a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)known risk.
(d) The UAW Collective Bargaining Agreement Purchaser shall have been ratified received a certificate signed by the membershipChief Executive Officer and Chief Financial Officer of the Company to the effect set forth in clauses (a) through (c) of this Section 9.2.
(e) No court, arbitrator or other Authority shall have been assumed issued any judgment, injunction, decree or Order, or have pending before it a proceeding for the issuance of any thereof, and there shall not be any provision of any applicable Law restraining or prohibiting the consummation of the Closing, the ownership by Purchaser of any of the Company Ordinary Shares or the effective operation of the Business by the applicable Sellers Company after the Closing Date.
(f) Purchaser shall have received all documents it may reasonably request relating to the existence of the Company and assigned the authority of the Company to enter into and perform under this Agreement, all in form and substance reasonably satisfactory to Purchaser and its legal counsel, including (i) a copy of the organizational or constitutive documents of the Company certified as of a recent date by the Secretary of State or equivalent Authority of its jurisdictions of organization, (ii) copies of the Company’s memorandum and articles of association (or equivalent constituent documents) as effective on the date hereof; (iii) copies of resolutions duly adopted by the board of directors or other management of the Company and by the unanimous vote or consent of the Company’s shareholders authorizing this Agreement, the Additional Agreements and the transactions contemplated hereby and thereby, (iv) a certificate of the Secretary of the Company certifying as to signatures of the officer(s) executing this Agreement and any certificate or document to be delivered pursuant hereto, together with evidence of the incumbency of such Secretary, and (v) a recent good standing certificate regarding the Company from each jurisdiction in which the Company organized or is qualified to do business.
(g) Purchaser shall have received copies of all Company Consents (including the consents of the landlords under the Leases), in form and substance reasonably satisfactory to Purchaser, and no such Company Consent shall have been revoked.
(h) Purchaser shall have received copies of all Governmental Approvals, in form and substance reasonably satisfactory to Purchaser, and no such Governmental Approval shall have been revoked.
(i) The members of the Company’s senior management team identified on Schedule 9.2(i) shall have entered into and delivered to Purchaser a copy of their employment agreement with Purchaser, each in Form and substance satisfactory to Purchaser (collectively, the “Employment Agreements”), and the same shall be in full force and effect.
(ej) The UAW Retiree Settlement Agreement Key Personnel shall have executed the Confidentiality and Non-Solicitation Agreements and the same shall be in full force and effect, and the Company shall have entered into Labor Agreements with each of its employees to the extent required by law, and satisfied all accrued obligations of the Company applicable to its employees.
(k) Each of the Additional Agreements shall have been executed entered into and delivered by the UAW same shall be in full force and shall have been approved by the Bankruptcy Court as part of the Sale Approval Ordereffect.
(fl) The Canadian Operations Continuation Agreement Each of the Shareholders shall have been executed and delivered by accredited investor representation letters.
(m) Purchaser shall have received Schedules updated as of the parties thereto in the form previously distributed among themClosing Date.
Appears in 1 contract
Samples: Share Exchange Agreement (Ace Global Business Acquisition LTD)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are is subject to the fulfillment satisfaction of the following conditions precedent on or written waiver, prior to or at before the Closing, any of each of the following conditions; provided, however, that in no event which may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):be waived by Purchaser:
(a) Each of the representations and warranties of Sellers contained Seller set forth in ARTICLE IV Section 3.02 of this Agreement shall be true and correct (disregarding for in all material respects as of the purposes date of such determination any qualification as to materiality or Material Adverse Effect) this Agreement and as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.Closing;
(b) Sellers Seller, in all material respects, shall have performed or complied and observed its obligations and covenants as set forth in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.;
(c) Sellers shall have deliveredReceipt of all permits, or caused consents, approvals and authorizations from federal and state governmental authorities and regulatory agencies necessary to be delivered, to Purchaser:
(i) a certificate executed as effect the transactions contemplated hereby and the operation of the Closing Date Seller Office by a duly authorized representative Purchaser (including the expiration of Sellersall applicable waiting periods), on behalf of Sellers terms and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) satisfactory to Purchaser (other than standard terms and Section 7.2(b) have been satisfiedconditions);
(iid) the Equity Registration Rights Agreementthere shall not be threatened, duly executed instituted or pending any action or proceeding before any domestic or foreign court or governmental agency or other regulatory or administrative agency or commission, or by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (any other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of person (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of challenging the transactions contemplated by this Agreement and such Ancillary Agreements and or the matters set forth in Section 6.16(e), and terms thereof or (B2) certifying as seeking to prohibit the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement Agreement, which, in accordance with the opinion of Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including's counsel, if applicable, UCC-3 termination statements), each in has a form reasonably satisfactory to the Parties and duly executed by the holders reasonable probability of the secured Indebtednesssuccess; and
(xxive) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement there shall have been ratified by no material adverse change in the membershipbusiness, shall have been assumed by the applicable Sellers and assigned to Purchaserfinancial condition, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part or operations of the Sale Approval Order.
Seller Office (fother than changes resulting from or attributable to (i) The Canadian Operations Continuation Agreement shall have been executed changes in laws and delivered by regulations, or (ii) economic conditions (including without limitation interest rates), in either case that affect banking institutions generally or the parties thereto ability to conduct banking operations at the Seller Office, or in the form previously distributed among themphysical condition of the Seller Assets from the physical condition that exists as of the date of this Agreement, or in the quality of the Loans (taken as a whole) from the quality that exists as of the date of this Agreement.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Republic Bancorp Inc /Ky/)
Conditions to Obligations of Purchaser. The obligations Each and every -------------------------------------- obligation of Purchaser to be performed at the Closing shall be subject to the satisfaction as of on or before the Closing of the following conditions (unless waived in writing by Purchaser):
(a) The representations and warranties of Seller are true on the date of the Closing, and Seller shall be in compliance with all covenants required to be complied with as of the Closing.
(b) The approval of the Acquisition and all transactions contemplated by this Agreement by the Seller, in accordance with applicable laws and regulatory requirements.
(c) The Closing shall have occurred on or before March 31, 2000.
(d) Completion of legal, financial and technical "due diligence" investigation by Purchaser and representatives of Purchaser, the results of which are satisfactory to Purchaser in Purchaser's sole discretion.
(e) The obtaining of all material consents and approvals required under Seller's charter documents, outstanding debt or any other outstanding contracts of Seller, under applicable law, or otherwise, and the making of all material or significant filings which are necessary or which Purchaser deems appropriate in connection with the Acquisition.
(f) Seller shall have obtained all consents and approvals required to consummate the transactions contemplated by this Agreement are subject to and the fulfillment or written waiverRelated Agreements, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):
(a) Each of the representations and warranties of Sellers contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effectunless otherwise waived by mutual agreement.
(bg) Sellers There shall be no pending or threatened lawsuit challenging the Acquisition, the Agreement, the Related Agreements or the transactions contemplated hereby and thereby, by any body or agency of the federal, state, or local government or by any third party, and the consummation of the Acquisition shall not have performed or complied in all material respects with all agreements and obligations required been enjoined by this Agreement to be performed or complied with by Sellers prior to or at a court of competent jurisdiction as of the Closing.
(ch) Sellers Purchaser shall have deliveredreceived evidence (in the form of UCC-3 termination statements and a recent UCC-1 financing statement search), at or caused prior to be deliveredthe Closing, satisfactory to Purchaser:it of Seller's title to all of the Assets and Seller's right to fully convey all such Assets described herein free and clear of all Liens, other than the Permitted Liens specifically identified on Schedule 2.14.
(i) Seller shall have delivered to Purchaser a certificate executed as by an officer of Purchaser, dated the date of the Closing Date by a duly authorized representative of SellersClosing, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying to the effect that the conditions set forth in Section 7.2(asubsections (a) and (b) of this Section 7.2(b) 5.1 have been satisfied;.
(iij) Purchaser shall have received fully executed copies of the Equity Registration Rights Related Agreements.
(k) Purchaser and each of Xxxxxxx Xxxx and Xxxxx Xxxxxx shall have entered into an Employment Agreement, duly executed by Parent;
(iii) stock certificates dated on or membership interest certificatesbefore the date hereof, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;D. ---------
(vl) an omnibus assignment Purchaser and assumption agreementXxxxxxx Xxxx shall have entered into a Stock Restriction Agreement, substantially dated on or before the date hereof, in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;E. ---------
(vim) Purchaser and Xxxxxxx Xxxx shall have entered into a novation agreementNon- Competition and Non-Solicitation Agreement, substantially dated on or before the date hereof, in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;F. ---------
(viin) a government related subcontract agreementSeller, substantially Purchaser and Greater Bay Trust Company ("Escrow Agent") shall have entered into an escrow agreement ("Escrow Agreement") in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) C and an omnibus intellectual property assignment agreement, substantially agreement in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside favor of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)--------- Escrow Agent.
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations obligation of the Purchaser to consummate the transactions contemplated by this Agreement are Closing is further subject to the fulfillment satisfaction (or written waiver, waiver by the Purchaser) at or prior to or at the Closing, of each Closing of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(aA) Each of the The representations and warranties of Sellers Seller Parties contained in ARTICLE IV of this Agreement and in any certificate or other writing delivered by a Seller Party to Purchaser shall be true and correct on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date (disregarding for the purposes except that any such representations and warranties that are given as of a particular date and refer solely to a particular date or period shall be true and correct as of such determination any qualification date or period with the same force and effect as if made on and as of such date or period), except where the failure to be true and correct, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, have a Material Adverse Effect.
, (bB) Sellers Seller Parties shall have duly performed or and complied in all material respects with all agreements each obligation, covenant and obligations agreement required by this Agreement to be performed or complied with by Sellers Seller Parties at or prior to or at the Closing.
, and (cC) Sellers Purchaser shall have delivered, or caused received certificates signed by the Chief Executive Officers and Chief Financial Officers of Parent to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying effect that the foregoing conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) No Governmental Entity shall have commenced any suit, action or other proceeding seeking a temporary restraining order, preliminary or permanent injunction or other order preventing the Equity Registration Rights Agreementconsummation of a transaction contemplated hereby, duly executed by Parentor damages other than any such proceeding which would not be reasonably likely to (A) materially interfere with the consummation of a transaction contemplated hereby or (B) materially and adversely affect the benefits which Purchaser could reasonably expect to derive from consummation of such transaction;
(iii) stock certificates or membership interest certificatesAll (A) consents and approvals of each Person set forth on Schedule 6.2(iii) and (B) other consents and approvals which, if anynot obtained, evidencing would be material to the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHIBusiness, Promark Global Advisors Limitedshall have been obtained, Promark Investments Trustees Limited and the Delayed Closing Entities, which Purchaser shall have received written evidence reasonably satisfactory to the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 Purchaser that all such consents and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed theretoapprovals have been obtained;
(iv) an omnibus xxxx The Audited Opening Financial Statements and the Closing Financial Statements shall reflect Policyholders' Surplus of sale, substantially in the form attached hereto as Exhibit P at least one hundred five million dollars (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title $105 million)(Calculated According to the Purchased Assets, each in a form reasonably satisfactory Transaction Calculation Memo) and GAAP Net Worth of at least one hundred sixty two million dollars ($162 million)(Calculated According to the Parties and duly executed by the appropriate SellerTransaction Calculation Memo);
(v) an omnibus assignment and assumption agreement, substantially in The Audited Opening Financial Statements shall not be materially different from the form attached hereto Opening Financial Statements (except as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed otherwise required by the appropriate SellerGAAP Financial Statement Methods or SAP Financial Statement Methods, as applicable);
(vi) a novation agreementSeller Parties have fulfilled their obligations pursuant to the first sentence of Section 5.24(a), substantially provided that Purchaser fulfills its notice obligation set forth in the form attached hereto as Exhibit R (the “Novation Agreement”first sentence of Section 5.24(a), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) There shall not, in any three-month period commencing with January 2000, be a government related subcontract agreement, substantially reduction of gross written premium relating to the Business that is greater than 25% of the amount of gross written premium attributable to the Business over the same three-month period in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellersprior calendar year;
(viii) an omnibus intellectual property assignment agreementSeller Parties have obtained the assignments, substantially consents and waivers from the third party reinsurers listed on Schedule 6.2(viii) relating to the Reinsurance Recoverables under the Third Party Reinsurance Contracts to which such reinsurers are a party, in accordance with the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”requirements set forth in Section 5.12(a), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by SellersSeller Parties have fulfilled their obligations under Section 5.38;
(x) all quitclaim deeds The Pennsylvania Insurance Department or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser Insurance Commissioner (the “Quitclaim Deeds”)"Commissioner") shall have notified RIC that the RBC Company Action Plan submitted by RIC to the Commissioner on March 31, duly executed by 2000 pursuant to the appropriate Sellerprovisions of 40 P.S. ss.221.1-A et seq. is acceptable;
(xi) all required Transfer Tax or sales disclosure forms relating Purchaser shall have received copies of the responses from the Pennsylvania Insurance Department to the Transferred Real Property letters regarding the transactions contemplated hereby sent by (i) Xxxxx X. Xxxxxx, Corporate Senior Vice President, General Counsel and Corporate Secretary of RIC, to Xxxxxx Xxxxxxx of the “Transfer Tax Forms”)Pennsylvania Insurance Department, duly executed by dated April 7, 2000, and (ii) Xxxxx X. Xxxxxxxx, Senior Vice President and General Counsel of TAP to Xxxxx Xxxxxxx, Esq. of the appropriate SellerPennsylvania Insurance Department, dated on or about April 10, 2000, which responses shall be reasonably acceptable to Purchaser;
(xii) an assignment Each Seller Party shall be, prior to and assumption of after giving effect to the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance consummation of this Agreement and the Ancillary Agreements Agreements, Solvent and not Impaired;
(xiii) No Seller Party, as of or after giving effect to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements, shall have unreasonably small capital with which to conduct its business or shall be unable to pay its debts as
(xiv) No Seller Insurer Party shall be subject to any supervision, conservation, liquidation, rehabilitation, delinquency or similar proceeding, or investigation or inquiry which is reasonably likely to result in such a proceeding, under Applicable Law;
(xv) Parent shall not be subject to any action, suit, investigation, judgment or proceeding under Federal bankruptcy law, or any investigation or inquiry which is reasonably likely to result in any of the foregoing;
(xvi) Seller Parties have sold, assigned and transferred to Purchaser all of Seller Parties' respective right, title and interest in the Transferred Assets;
(xvii) Seller Parties have licensed to Purchaser all of Seller Parties' right, title and interest in the Shared Intellectual Property;
(xviii) Seller Parties have entered into the Specified Reinsurance Agreements and the Administrative Services Agreements;
(xix) Each Seller Party shall have executed and delivered each of the Ancillary Agreements to which such Seller it is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Asset Transfer Agreement (Reliance Group Holdings Inc)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement Closing are subject to the fulfillment satisfaction, or written waiver, prior to or the waiver at the ClosingPurchaser’s discretion, of each of the following further conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each Seller and the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date.
(b) All of the representations and warranties of Sellers and the Company contained in ARTICLE IV of this Agreement shall be true and correct (in any certificate or other writing delivered by Sellers or the Company pursuant hereto, disregarding for the purposes of such determination any qualification as all qualifications and expectations contained therein relating to materiality or Material Adverse Effect) as , regardless of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of whether it involved a specific date or timeknown risk, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements at and obligations required by this Agreement to be performed or complied with by Sellers prior to or as of the Closing Date, as if made at the Closingand as of such date.
(c) Sellers Purchaser shall have delivered, or caused to be delivered, to Purchaser:
(i) received a certificate executed as signed by Sellers and an authorized officer of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that Company to the conditions effect set forth in Section 7.2(aclauses (a) and Section 7.2(b(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)6.2.
(d) The UAW Collective Bargaining Agreement Company shall have delivered to (i) the Purchaser the Company’s shareholder register with an official corporate seal, evidencing that the iFresh BVI’s name has been duly entered as a holder of the Equity Interests, and (ii) an investment certificate with an official corporate seal affixed thereto evidencing the iFresh BVI’s ownership of the Equity Interests immediately after the Closing.
(e) All approval and registration formalities as set forth in Section 2.3 hereof shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchasercompleted, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement effect as of the Closing Date, and the Company shall have been executed provided to Purchaser certified true copies of such approval and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Orderregistration documents.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Purchase Agreement (iFresh Inc)
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are hereby shall be subject to the fulfillment fulfillment, at or written waiver, prior to or at the ClosingClosing Date, of each of the following conditions; providedadditional conditions (any of which may be waived, howeverin whole or in part, that by Purchaser in no event may Purchaser waive writing and shall be deemed to be waived in whole if the conditions contained in Section 7.2(dClosing occurs) or Section 7.2(e):delivery of the following documents, dated as of the Closing Date, as the case may be:
(a) Each A copy, certified by an authorized officer of Seller, of resolutions of the board of directors of Seller authorizing the execution, delivery and performance of this Agreement and all other agreements, documents and instruments relating hereto and the consummation of the transactions contemplated hereby;
(b) A certificate executed by an authorized officer of Seller to the effect that all of Seller’s representations and warranties of Sellers contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) are accurate in all material respects as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak unless made as of a specific another date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied thus are accurate in all material respects with as of such date) and that all agreements of the covenants and obligations that Seller is required by to perform or to comply with pursuant to this Agreement at or prior to be the Closing have been duly performed or and complied with by Sellers prior to or at the Closing.in all material respects;
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as A General Conveyance and Assumption of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Liabilities Agreement, duly executed by Parent;
Seller, covering items of tangible and intangible personal property included in the Acquired Assets and transferring Seller’s rights, duties and obligations in the Assumed Liabilities (iiiincluding the Assumed Contracts) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers to Purchaser (or similar documentationits designee) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, which agreement shall be substantially in the form attached hereto as Exhibit P E (the “Xxxx General Conveyance and Assumption of SaleLiabilities Agreement”);
(d) A Transfer or Deed, in registrable form, transferring to Purchaser all of Seller’s legal and beneficial right, title and interest in and to each Owned Real Property, together with transfer tax declarations such Acknowledgement and all other instruments Direction or Authorization as may be required in order to facilitate the electronic execution and registration of conveyance that are necessary any Transfer or Deed relating to effect transfer to Purchaser any Owned Real Property in respect of title to the Purchased Assetswhich electronic registration is applicable;
(e) The Formula License, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vf) an omnibus assignment and assumption agreementThe Supply Agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vig) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation The Operating Agreement”), duly executed by Sellers and the appropriate United States Governmental AuthoritiesSeller;
(viih) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”)The Trademark License, duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xii) all required Transfer Tax or sales disclosure forms relating The consents set forth on Schedule 6.2(i);
(j) An assignment and assumption agreement related to the Leases of the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other ;
(k) That Competition Act Approval has been obtained; and
(l) Such further documents and instruments of sale, transfer, conveyance, assignment and assumption that are necessary or delivery covering the Acquired Assets or any part thereof as Purchaser may reasonably require to transfer assure the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption sale and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or the Acquired Assets as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and to otherwise consummate the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions transaction contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)herein.
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are expressly subject to the fulfillment fulfillment, on or written waiver, prior to or at the ClosingClosing Date, of each all of the following conditions; providedadditional conditions (compliance with which or the occurrence of which may be waived in whole or in part by Purchaser, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(ewriting):
(a) Each of the 8.2.1. All representations and warranties of Sellers contained made by Seller in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) in all material respects as of the Closing Date as if made on the Closing Date (except for representations at and warranties that speak as of a specific date such date, and all schedules, exhibits or time, which representations and warranties documents attached hereto or previously or hereafter delivered to Purchaser as stated or provided by the terms of this Agreement shall be true and correct only complete in all material respects as of such the date or time)of this Agreement (or, if delivered hereafter, as of the date of delivery) and as of the Closing Date, except to the extent that any breaches of such representations change in any condition or fact between the date hereof and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse EffectClosing Date is expressly permitted herein.
(b) Sellers 8.2.2. Seller shall have performed or complied and satisfied, in all material respects with respects, all agreements covenants and obligations conditions required by this Agreement to be performed or complied with satisfied by Sellers it on or prior to or at the ClosingClosing Date.
(c) Sellers 8.2.3. There shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer delivered to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date a certification signed by a Vice-President of Seller confirming the matters set forth in Sections 8.2.1 and (2) resolutions 8.2.2 above.
8.2.4. All actions by, registrations or filings with, or consents, authorizations, or approvals of, any Governmental Bodies applicable to Seller or to any of the board of directors of such Seller, authorizing the execution, delivery Companies and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, necessary for the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement hereby shall have been ratified obtained or completed by the membership, shall have been assumed by the applicable Sellers and assigned to PurchaserSeller, and not revoked, and in each case shall be in full force form and effectsubstance satisfactory to Purchaser.
(e) The UAW Retiree Settlement Agreement 8.2.5. Seller shall have been executed obtained and delivered by the UAW to Purchaser all consents and waivers referred to in Section 13.2 below and such consents and waivers shall be in form and substance satisfactory to Purchaser.
8.2.6. Purchaser shall have been approved by received the Bankruptcy Court as part legal opinion of Seller's counsel, X'Xxxxxxxx Graev & Karabell, LLP, dated the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto Closing Date, substantially in the form previously distributed among themof Exhibit 8.2.6 attached hereto.
8.2.7. Seller shall have delivered to Purchaser the resignation of each director and officer of each of the Companies dated as of the Closing Date.
8.2.8. Purchaser shall have received the approval of the Supervisory Board (Aufsichtsrat) of Xxxxxx + Jahr AG to the consummation of this Agreement, it being acknowledged by Seller that the grant of such approval is wholly within the discretion of the Supervisory Board.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations Unless waived by Purchaser, the obligation of Purchaser to consummate close the transactions contemplated by this Agreement are herein shall be subject to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive additional conditions on or prior to the conditions contained in Section 7.2(d) or Section 7.2(e):Closing Date:
(a) Each the Shareholders and the Company shall have performed in all material respects (or in all respects in the case of any agreement containing any materiality qualification) its agreements contained in this Agreement required to be performed on or prior to the Closing Date;
(b) the representations and warranties of Sellers the Company and Shareholders contained in ARTICLE IV of this Agreement shall be true and correct in all material respects (disregarding for or in all respects in the purposes case of such determination any qualification representation or warranty containing any materiality qualification) on and as to materiality or Material Adverse Effect) of the date made and on and as of the Closing Date as if made on the Closing Date (except for representations at and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date;
(c) since the date hereof, there shall have been no changes that constitute, and no event or time), except to the extent that any breaches of such representations and warranties, individually events shall have occurred which have resulted in or in the aggregate, have not had, or would not reasonably be expected to haveconstitute, a Material Adverse Effect.;
(bd) Sellers Purchaser shall have performed or complied in all material respects with all agreements and obligations required by this Agreement received a legal opinion from legal counsel to be performed or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have deliveredShareholders, or caused to be delivered, to Purchaser:
(i) a certificate executed dated as of the Closing Date by Date, in a duly authorized representative of Sellers, on behalf of Sellers form customary to such transactions and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfiedreasonably satisfactory to Purchaser;
(iie) each of the Equity Registration Rights Shareholders, officers and directors of the Company shall have executed a Release of Claims Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate SellerC;
(vf) Each of the Shareholders shall have entered into an omnibus assignment Employment and assumption agreementNon-Competition Agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate SellerD;
(vig) a novation agreementThe Parties shall have entered into real property leases, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental AuthoritiesE;
(viih) a government related subcontract agreement, substantially The Company shall have paid in full at Closing the promissory note in favor of the Small Business Administration in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellersprincipal amount of $322,800;
(viiii) an omnibus intellectual property assignment agreementPurchaser shall have received a certificate or certificates representing the Company Common Stock purchased at the Closing, substantially in definitive form representing the Shareholders' shares, registered in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels name of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured IndebtednessCompany; and
(xxivj) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement Purchaser shall have been ratified received a certificate executed by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part each of the Sale Approval OrderShareholders with respect to (a) through (c) above.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Stock Purchase Agreement (Synagro Technologies Inc)
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are subject to Transactions shall be conditioned upon the fulfillment satisfaction or written waiverfulfillment, at or prior to or at the Closing, of each of the following conditions; provided, however, that unless waived in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):writing by Purchaser:
(a) Each of the The representations and warranties of Sellers contained Seller set forth herein (without duplication of any materiality qualifications included in ARTICLE IV such representations for all purposes of this Agreement Section 6.1(a)) shall be true and correct (disregarding for as of the purposes of such determination any qualification Closing as to materiality or Material Adverse Effect) if made as of the Closing Date as if made on the Closing Date (except for that representations and warranties that speak are made as of a specific date or time, which representations and warranties shall need be so true and correct only as of such date or timedate), except to the extent that any breaches of such representations and warrantiesas would not, individually or in the aggregate, be reasonably expected to have not hada Seller Material Adverse Effect and Purchaser shall have received a certificate to such effect dated the Closing Date and executed by a duly authorized officer of Seller.
(b) The covenants and agreements of Seller to be performed under this Agreement on or prior to the Closing Date shall have been duly performed in all material respects, and Purchaser shall have received a certificate to such effect dated the Closing Date and executed by a duly authorized officer of Seller.
(c) The Consent of the FCC required for the consummation of the Transactions shall have been obtained pursuant to a Final Order, free of any conditions (i) materially adverse to Purchaser or the other Purchaser Entities taken as a whole or (ii) which would not reasonably be expected to havehave a Seller Material Adverse Effect; provided that, only with respect to the Seller Assigned Licenses, subsections (i) and (ii) shall not apply, and any such Final Order shall be free of any conditions other than those of general applicability to licenses pursuant to FCC rules and regulations.
(d) All applicable waiting periods under the HSR Act (if applicable to the transactions contemplated by this Agreement) shall have expired or been terminated and no objection shall have been made by the FTC or the DOJ.
(e) The Seller Consents, if any, shall have been obtained free of any conditions (i) materially adverse to Purchaser or the other Purchaser Entities taken as a whole or (ii) which would reasonably be expected to have a Seller Material Adverse Effect.
(bf) Sellers shall have performed or complied in all material respects with all agreements and obligations All Governmental Authorizations required by this Agreement to be performed or complied with by Sellers obtained prior to or at Closing by either party in order to consummate the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests Transactions (other than in respect of the Equity Interests held by Sellers in RHIConsent of the FCC, Promark Global Advisors Limited, Promark Investments Trustees Limited the HSR Act and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35Seller Consents), duly endorsed shall have been made or obtained free of any conditions materially adverse to Purchaser or the other Purchaser Entities taken as a whole or which would reasonably be expected to have a Seller Material Adverse Effect.
(g) No preliminary or permanent injunction or other order, decree or ruling issued by a Governmental Authority, nor any Law promulgated or enacted by any Governmental Authority, shall be in blank effect that as a result of the Transactions would impose material limitations on, or accompanied impair in any material respect, the operations of any Purchaser Entity or materially adversely affect Purchaser’s ownership or use of the Purchased Assets after Closing. 16
(h) Seller shall have executed and delivered, or caused to be executed and delivered, to Purchaser the documents and instruments required pursuant to Section 2.2.
(i) The following Transaction Documents shall have been executed by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer Seller and delivered to Purchaser and shall contain terms and conditions reasonably acceptable to Purchaser, including any required stamps affixed thereto;
: (ivA) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Customer Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, howeverthat, the parties agree that if it is required for the assumption Customer Transition Services Agreement will contain, among other things, the terms and assignment of any lease or sublease underlying a Leased Real Property conditions set forth in Schedule 6.1(i); (B) the Network Transition Services Agreement; provided, that, the parties agree that a separate assignment the Network Transition Services Agreement will contain, among other things, the terms and assumption for such lease or sublease be executed, then a separate assignment conditions set forth in Schedule 6.1(i); (C) the Spectrum Manager Lease Agreement; (D) the Sixth Amendment to the Intercarrier Roamer Service Agreement; and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;(E) the Seller Brand License Agreement
(xiiij) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters Each Transaction Document not set forth in Section 6.16(e), 6.1(i) to be executed and (B) certifying as to delivered in connection with the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement Closing shall have been executed by the Seller Entities party thereto and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Orderto Purchaser.
(fk) The Canadian Operations Continuation Agreement number of postpaid customers of the Seller Business (the “Customer Threshold”) shall have been executed and delivered by the parties thereto in the form previously distributed among thembe as set forth on Schedule 6.1(k).
Appears in 1 contract
Samples: Purchase and Sale Agreement (United States Cellular Corp)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement Closing are subject to the fulfillment satisfaction, or written waiver, prior to or the waiver at the ClosingPurchaser’s discretion, of each of the following further conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each Seller and each Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date.
(b) All of the representations and warranties of Sellers and each Company contained in ARTICLE IV of this Agreement shall be true and correct (in any certificate or other writing delivered by Sellers or each Company pursuant hereto, disregarding for the purposes of such determination any qualification as all qualifications and expectations contained therein relating to materiality or Material Adverse Effect) as , regardless of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of whether it involved a specific date or timeknown risk, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements at and obligations required by this Agreement to be performed or complied with as of the Closing Date, as if made at and as of such date.
(c) Purchaser shall have received a certificate signed by Sellers prior and an authorized officer of each Company to or at the effect set forth in clauses (a) and (b) of this Section 6.2.
(d) Each Company shall have delivered to (i) the Purchaser each Company’s shareholder register with an official corporate seal, evidencing that the iFresh BVI’s name has been duly entered as a holder of the Equity Interests, and (ii) an investment certificate with an official corporate seal affixed thereto evidencing the iFresh BVI’s ownership of the Equity Interests immediately after the Closing.
(ce) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed All approval and registration formalities as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement 2.3 hereof shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchasercompleted, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement effect as of the Closing Date, and each Company shall have been executed provided to Purchaser certified true copies of such approval and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Orderregistration documents.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Purchase Agreement (iFresh Inc)
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are hereby shall be subject to the fulfillment satisfaction or written waiver, waiver at or prior to or at the Closing, Closing of each condition in Section 5.01 and each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the representations and warranties of Sellers contained in ARTICLE IV Article II of this Agreement shall be true and correct (disregarding for the purposes of such determination without giving effect to any qualification as to materiality or Material Adverse EffectEffect qualifications) at and as of the date hereof and at and as of the Closing Date as if (other than any representation or warranty that by its terms is made on the Closing Date (except for representations and warranties that speak as of a specific date specified therein, in which case any such representation or time, which representations and warranties warranty shall be true and correct only as of such date or timedate), except to where the extent that any breaches failure of such representations and warrantiesor warranties to be in compliance with the standard set forth above in this Section 5.03(a) would not, individually or in the aggregate, have not had, or would not reasonably be expected to have, have a Material Adverse Effect.;
(b) Sellers and the NY Operator shall have performed or and complied in all material respects with all agreements and obligations covenants required by this Agreement to be performed or and complied with by Sellers under this Agreement and by the NY Operator under the OTA at or prior to or at the Closing.;
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth complied with each delivery requirement in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness1.07; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement the Title Company, or such alternative Title Company as shall have been ratified be agreed by the membershipParties (it being agreed that Chicago Title Insurance Company is acceptable to the Parties), shall have been assumed by be obligated, subject to the terms of the Title Letter, to issue its ALTA Owner’s Policies of title insurance (or an owner’s policy of title insurance in applicable form as to Rental Properties located in states where an ALTA Owner’s Policy is not available) on the Closing Date, naming Purchaser as the party insured thereunder, in the amount set forth on the applicable Sellers and assigned to PurchaserPro Forma Policy, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto otherwise in the form previously distributed among themof the Pro Forma Policy with such modifications contemplated by the Title Letter (the “Title Policies”).
Appears in 1 contract
Samples: Purchase Agreement (Senior Housing Properties Trust)
Conditions to Obligations of Purchaser. The obligations of Purchaser under this Agreement are, at the option of Purchaser, subject to consummate the conditions that:
(a) All the terms, covenants and conditions of this Agreement to be complied with and performed by Sellers on or before the Closing Date shall have been fully complied with and performed in all material aspects.
(b) The representations and warranties made by Sellers herein shall be correct in all respects, on and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on and as of the Closing Date.
(c) On or before the Closing Date, Sellers shall have obtained all approvals or consents necessary for the consummation of the transactions contemplated hereby, including:
(i) the consent of Marad to the transfer of any Vessels which are subject to a Capital Construction Fund Agreement with Marad;
(ii) the consent of all appropriate agencies to the assignment or transfer to the Purchaser of any permits necessary for use of the Purchased Assets or operation of the business of the Sellers. Also on or before the Closing Date, any waiting period prescribed by Title II of the Hart-Scott-Rodino Xxxxxxust Improvements Act of 1976, 15 U.S.C.A. Section 18a(c)(8), as amended ("H-S-R") filed with respect to the purchase by SEACOR Marine, Inc., or its designee of vessels from Waveland Marine Service, Inc. (the "Waveland Transaction"), shall have been waived by the United States or shall have expired without further investigation or commencement of judicial proceedings, provided, -------- however, that if any such investigation or ------- judicial proceedings are initiated, the same shall have been finally concluded and resolved to the satisfaction of both parties, provided further, -------- ------- however, that, if the United States conditions ------- ---- approval of the Waveland Transactions upon the taking of any additional actions, including but not limited to divestiture of any vessels or other assets, by Purchaser or any affiliated entity, then Purchaser, at its option, shall either:
(A) notify Sellers of its intent not to go forward with the transactions contemplated by this Agreement are subject Agreement, in which case (1) Sellers shall be released from their obligation under the Letter of Intent to refrain from soliciting, encouraging, initiating, or negotiating any offers or proposals relating to the fulfillment or written waiver, prior Sellers assets from third parties and (2) the FIFTY THOUSAND DOLLARS ($50,000) deposit (the "Deposit") held by Sellers shall be deemed forfeited by Purchaser to or at Sellers; or
(B) notify Sellers of its intent to go forward with the Closing, of each of the following conditionstransactions contemplated by this Agreement; provided, however, that in no event may Purchaser waive the conditions contained and
(iii) such other consents as are referred to in Section 7.2(d) or Section 7.2(e):
(a) Each of the representations 7 hereof and warranties of Sellers contained in ARTICLE IV of this Agreement shall be true Schedules 7.1, 7.2, 7.3, and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect9.9 hereof.
(bd) Sellers Purchaser shall have performed or complied received an opinion of Phelps Dunbar, L.L.P., counxxx xxr Sellxxx, xated the Closing Date, in form and substance satisfactory to Purchaser and its counsel.
(e) Each Seller shall have furnished Purchaser with a certificate, dated the Closing Date, which shall state that (i) all material respects with all agreements the terms, covenants and obligations required by this Agreement conditions herein to be performed or complied with by Sellers prior to it on or at before the Closing.
Closing Date have been fully performed or complied with and (cii) Sellers shall have deliveredthe representations and warranties made by it herein are correct, or caused to be delivered, to Purchaser:
(i) a certificate executed on and as of the Closing Date by a duly authorized representative Date, with the same force as though such representations and warranties had been made on and as of the Closing Date.
(f) No action, suit or proceeding against Sellers, on behalf of Sellers and not in such authorized representative’s individual capacitythe Stockholders, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment consummation of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement nor any governmental action seeking to delay or enjoin any such transactions shall be pending or threatened.
(g) Each of the Sellers shall have executed and such Ancillary Agreements delivered the Investment and the matters set forth Registration Rights Agreement referred to in Section 6.16(e), and (B) certifying as to the incumbency 25 of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;Agreement.
(xxh) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other The transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters that purchase agreement, dated of even date herewith, among SEACOR Marine, Inc., and related Encumbrance-release documentation (includingWaveland Marine Service, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membershipInc., shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court consummated as part of the Sale Approval OrderClosing Date.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment satisfaction or written waiver, at or prior to or at the Closing, of each Closing of the following conditions:
(a) All closing deliveries set forth in Section 1.6(b) hereof must have been delivered to Purchaser.
(b) All representations and warranties of the Company and New Dana in Article II must be true and correct in alx xxspects on the Closing Date, except as would not have or reasonably be expected to have a Company Material Adverse Effect.
(c) All covenants in Article IV required to be performed by the Company or New Dana, as the case may be, must have been complied xxxh in all material respects.
(d) No Company Material Adverse Effect shall have occurred between the date hereof and the Closing.
(e) The Confirmation Order approving the Chapter 11 Plan in a form reasonably acceptable to Appaloosa consistent with the Form of Plan in all respects shall have been entered by the Bankruptcy Court on or before February 28, 2008.
(f) The Company shall have obtained exit financing with parties and on market terms that are reasonably acceptable to Appaloosa and shall have consulted with Appaloosa regarding such parties and terms.
(g) The Chapter 11 Plan and the related disclosure statement shall have been filed with the Bankruptcy Court no later than ________, 2007.
(h) The Chapter 11 Plan, including the plan documents attached thereto, shall be in a form acceptable to Appaloosa and shall have been implemented in all material respects in a manner acceptable to Appaloosa consistent with this Agreement and the Form of Plan.
(i) Appaloosa must have received from the Company or New Dana, as the case may be, a certificate of an exexxxxve officer of the Company or New Dana, as the case may be, (without personal liabixxxx) certifying to such executive's Knowledge the satisfaction of the conditions set forth in Sections 5.3(b), (c) and (d) above.
(j) New Dana's charter or amendments to the Company's charter, as applicable, shall have been filed with the Secretary of State of the state in which it is incorporated, which charter or amendments, and the bylaws of New Dana in effect as of the Closing Date, shall be ix xxrm and substance reasonably acceptable to Purchaser and Appaloosa and consistent with this Agreement and the Exhibits hereto, necessary to implement the transactions contemplated by this Agreement, the Chapter 11 Plan, the Support Agreement and the Form of Plan; provided, however, that the terms of the Series A Preferred and Series B Preferred included in no the New Dana charter shall in any event be in the form of Xxxibit A, and Appaloosa shall have received from the Company or New Dana, as the case may Purchaser waive be, a certificate of the conditions contained in Section 7.2(d) Sexxxxary of the Company or Section 7.2(e):New Dana, as the case may be, certifying as to such cxxxxer and bylaws.
(ak) Effective upon the Closing, the New Dana Board shall consist of nine directors, (i) txxxx of whom shall be designated by Appaloosa, (ii) three of whom shall be designated by representatives of the unsecured creditor's committee (the "Creditors' Committee") appointed in the Chapter 11 Case, each of whom shall be an Independent Director, (iii) one of whom shall be the Chief Executive Officer of the Company, (iv) one of whom shall be the Executive Chairman (as defined in the Shareholders Agreement) and (v) one of whom shall be selected by the Standby Purchasers other than Appaloosa, and reasonably acceptable to Appaloosa. At least two-thirds of the members of the New Dana Board shall be Independent Directors.
(l) The Rights Offering shall have been conducted in all material respects in accordance with this Agreement and the Disclosure Statement and the Expiration Time shall have occurred.
(m) Each of the representations and warranties of Sellers contained in ARTICLE IV of this Agreement Standby Purchasers shall be true and correct (disregarding for have received a Purchase Notice from the purposes of such determination any qualification as to materiality or Material Adverse Effect) Company, dated as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or timeDetermination Date, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency number of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements Unsubscribed Shares to which such Seller is be purchased or a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)Satisfaction Notice.
(dn) The UAW Collective Bargaining Agreement There shall not have been ratified by occurred any material strike or labor stoppage or slowdown at the membershipCompany or General Motors, shall have been assumed by the applicable Sellers and assigned to PurchaserChrysler, and shall be in full force and effectFord Motor Company or any of their respective Subsidiaries.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations Unless waived in writing by the Purchaser, the obligation of the Purchaser hereunder to consummate the transactions contemplated by this Agreement are Transactions is subject to the fulfillment satisfaction at or written waiver, prior to or at the Closing, of each Closing of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each The representations and warranties of the Company and its Subsidiaries, including the UK Subsidiary, contained in this Agreement are true and accurate in all material respects (except that (i) the representations and warranties of Sellers contained in ARTICLE IV of this Agreement Section 2.2 (Capitalization; Subsidiaries) and (ii) each other representation or warranty to the extent already qualified by materiality, Material Adverse Effect or a similar term shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effectin all respects) on and as of the Closing Date with the same effect as if though made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.date;
(b) Sellers The Company and its Subsidiaries shall have performed or and complied in all material respects with all the covenants, agreements and obligations conditions required by this Agreement to be performed or complied with by Sellers the Company and its Subsidiaries, including the UK Subsidiary, hereunder on or prior to or at the Closing.Closing Date;
(c) Sellers The Purchaser shall have delivered, or caused received a certificate of the Company certifying as to be delivered, to Purchaser:the matters in Sections 5.1(a) and (b);
(id) The Purchaser shall have received copies of each of the following: (A) a copy of the resolutions and/or written consents by which all actions on the part of the Company necessary to approve this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby were taken, including, but not limited to, the approval of the holders of the requisite number of Shares outstanding on the date of this Agreement certified by the Secretary or an authorized officer of the Company; (B) an incumbency certificate signed by an officer or officers of the Company certifying the signature and office of each officer executing the Transaction Documents or any other agreement, certificate or other instrument executed pursuant hereto or thereto; (C) a copy of the organizational documents of the Company and each Subsidiary, including the UK Subsidiary, certified by the Secretary or an authorized officer of the Company; and (D) good standing certificates or the applicable equivalent document for the Company and its Subsidiaries, issued as of a date which is no more than seven (7) business days before the Closing Date, by the applicable Governmental Authority;
(e) The Purchaser shall have received payoff letters for each instrument of Indebtedness from the obligees thereunder setting forth the amounts necessary to pay off all Indebtedness under such instrument as of the Closing Date along with the per diem interest amount with respect thereto and otherwise in form and substance reasonably satisfactory to Purchaser, and evidence reasonably satisfactory to Purchaser of the release of all Encumbrances held by a duly authorized representative such obligees against the property of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfiedCompany;
(iif) The Purchaser shall have received payoff letters from all payees of Company Expenses setting forth the Equity Registration Rights Agreementamounts necessary to pay off all Company Expenses owed thereto, indicating the amount payable at Closing and the amount payable concurrent with a Milestone Event (each a “Company Expense Payoff Letter”);
(g) The Purchaser shall have received an updated Preliminary Spreadsheet, setting forth as of the Closing the information contained therein as of the Closing (the “Final Spreadsheet”);
(h) The Purchaser shall have received a certificate signed by an officer of Company satisfying the requirements of Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3) certifying that none of the shares of Company Securities are a “United States real property interest” as defined in Section 897(c) of the Code and the Treasury Regulations promulgated thereunder;
(i) The resignations, dated as of the date hereof and effective as of the Closing, from each of the officers and directors of the Company and each Subsidiary, including the UK Subsidiary, shall have been delivered to Purchaser and remain in full force and effect as of the Closing, and shall not have been withdrawn, suspended or conditioned;
(j) Amendment #3 to the License Agreement between the Company and The University of Virginia, duly executed by Parentthe parties to such License Agreement and entered into on or about the date hereof (the “UVA Amendment”) shall have been delivered to Purchaser and remain in full force and effect as of the Effective Time, and shall not have been withdrawn, suspended or conditioned;
(iiik) stock certificates or membership interest certificatesThe consulting agreements (collectively, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation AgreementConsulting Agreements”), duly executed by Sellers each of Xxxxxx Xxxx, Xxxx Xxxxxxx, Xxxxxxx Xxxxxxxxxxx and Xxxxxx Xxxxxxxxx on or about the appropriate United States Governmental Authoritiesdate hereof shall have been delivered to Purchaser and remain in full force and effect as of the Effective Time, and shall not have been withdrawn, suspended or conditioned;
(viil) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S The Company shall have obtained and delivered evidence to Purchaser of an irrevocable “tail” insurance policy (the “Government Related Subcontract AgreementTail Policy”)) with respect to directors’ and officers’, duly executed by Sellersfiduciary and employment practices liability for a period of 5 years in form and substance reasonably acceptable to Purchaser, and such shall remain in full force and effect as of the Effective Time, and shall not have been withdrawn, suspended or conditioned;
(viiim) an omnibus intellectual property assignment agreementThe Purchaser shall have received evidence of termination of all agreements (if any) regarding voting, substantially transfer or other arrangements related to the Shares that are in effect prior to the form attached hereto as Exhibit T Closing (the “Intellectual Property Assignment Agreement”in each case on terms and conditions reasonably satisfactory to Buyer), duly executed by Sellerswhich termination agreements shall be entered into on or about the date hereof, shall remain in full force and effect as of the Effective Time, and shall not have been withdrawn, suspended or conditioned;
(ixn) a transition services agreementThe Purchaser shall have received evidence of the Company having taken all actions necessary to effect the vesting of any unvested portion of the Options as of immediately prior to the Closing, substantially which actions shall have been taken on or about the date hereof, shall remain in full force and effect as of the form attached hereto as Exhibit U (the “Transition Services Agreement”)Closing, duly executed by Sellersand shall not have been withdrawn, suspended or conditioned;
(xo) all quitclaim deeds or deeds without warranty The Purchaser shall have received the items to be delivered pursuant to Section 1.2(b) (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United StatesSecurityholder Deliveries), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(dp) The UAW Collective Bargaining Agreement Purchaser shall have been ratified by the membershipreceived such other certificates, shall have been assumed by the applicable Sellers and assigned to Purchaserdeeds, bills of sale, endorsements, assignments, affidavits, and shall be other good and sufficient instruments of sale, assignment, conveyance and transfer, as are reasonably requested by Purchaser to effectively convey to Purchaser good and marketable right, title and interest in full force and effectto Company and its assets, free and clear of any and all Encumbrances.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Purchase Agreement (Agenus Inc)
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are Closing is subject to the fulfillment satisfaction (or written waiver, prior to or at the Closing, of each waiver by Purchaser) of the following further conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each each Seller shall have performed in all material respects all of its obligations and agreements hereunder required to be performed by such Seller on or prior to the Closing Date;
(b) the representations and warranties of Sellers contained Seller set forth in ARTICLE IV of this Agreement shall Section 3 (i) that are not qualified by Material Adverse Effect or other materiality qualifiers will be true and correct in all material respects as of the Closing Date as if made at and as of the Closing Date (disregarding for except to the purposes extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct in all material respects as of such determination any qualification as to materiality or earlier date) and (ii) that are qualified by Material Adverse EffectEffect or other materiality qualifiers will be true and correct in all respects (without disregarding such Material Adverse Effect or other materiality qualifiers qualifications) as of the Closing Date as if made on at and as of the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct in all respects as of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.earlier date);
(c) each Seller shall not be in default in any material respect under the provisions of this Agreement;
(d) no Material Adverse Effect shall have occurred;
(e) Purchaser shall have received an officer’s certificate, dated as of the Closing Date, executed by a duly authorized officer of each Seller certifying that the conditions set forth in Sections 10.2(b), 10.2(c) and 10.2(d) have been satisfied;
(f) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as Purchaser all of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions items set forth in Section 7.2(a) and Section 7.2(b) have been satisfied2.8;
(iig) no party in interest has filed an adversary proceeding or commenced a contested matter challenging the Equity Registration Rights Agreementamount, duly executed by Parent;
(iii) stock certificates validity, enforceability, perfection or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect priority of Purchaser’s Liens on collateral of the Equity Interests held Debtors or obligations owed by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer Debtors to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxivh) all books and records none of Sellers described the information contained in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement any Customer List shall be publicly available or shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned required to Purchaser, and shall be disclosed in full force and effecta non-confidential manner.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Asset Purchase Agreement
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are Closing is subject to the fulfillment satisfaction at or written waiver, prior to or at the Closing, of each Closing of the following conditions; provided, however, that each of which may be waived by Purchaser in no event may Purchaser waive the conditions contained whole or in Section 7.2(d) or Section 7.2(e):part at any time:
(a) Each of the representations and warranties of Sellers the Vendor contained or referred to in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date as if made in all material respects on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.Closing;
(b) Sellers The Vendor’s and Purchaser’s boards of directors shall have performed or complied in all material respects with all agreements provided necessary consents to the purchase and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.sale contemplated herein;
(c) Sellers The Vendor shall have deliveredcomplied with the provisions of the Bulk Sales Act R.S.O. 1990, as amended, including delivery to the Purchaser a statement listing each Vendor’s secured and unsecured trade creditors of the Business in the form prescribed by the Bulk Sales Act;
(d) Except as otherwise provided herein, between the date hereof and the Date of Closing there shall have been no Material Adverse Change in the affairs, assets, liabilities, condition (financial or caused otherwise) of the Business, Premises, and the Purchased Assets;
(e) The Vendor (as applicable) shall have delivered to the Purchaser a Purchase Certificate pursuant to the Workplace Safety and Insurance Act (Ontario);
(f) The Vendor shall have delivered to the Purchaser a clearance certificate pursuant to section 6 of the Retail Sales Tax Act (Ontario);
(g) Vendor shall have performed in all respects all of its obligations and covenants under this Agreement required to be deliveredperformed by it on or prior to the Date of Closing, and made all deliveries required by Section 2.09;
(h) Vendor shall have delivered written agreements with each creditor evidencing settlement of the Trade Payables for an all inclusive sum of Fifty-Five Thousand Dollars ($55,000.00) to Purchaser:be paid on or immediately after the Closing of this transaction;
(i) a certificate executed as of the Closing Date There shall not be pending or threatened any order, decree, judgment or litigation by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates any Governmental Authority seeking to enjoin or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, prohibit the consummation of the transactions contemplated by this Agreement and or to impose substantial restrictions on the Business or the Purchased Assets, nor shall there be any injunction with respect to such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a partyconsummation;
(xxj) a certificate in compliance with Treas. Reg. §1.1445This Agreement, the Non-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to PurchaserCompetition Agreements, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement all other closing deliveries shall have been executed and delivered by the parties thereto and shall be in full force and effect;
(k) The Purchaser shall have received or obtained any and all consents required (a) to sell, purchase (as applicable) and operate the form previously distributed among themBusiness, and (b) under any material contracts, leases or agreements to which the Vendor is a party and which require the consent of any other party thereto to the transactions contemplated by this Agreement; and
(l) Rxxxxx Xxxxxxx shall have entered into a mutually agreeable, non-exclusive consulting agreement whereby he shall serve as consultant to the Purchaser, or such other entity the Purchaser may direct in writing, for a minimum term of twelve (12) months;
(m) The Purchaser has negotiated a fresh license agreement with ABG TapouT LLC on terms and conditions acceptable to the Purchaser;
(n) The insurance for the Business is assigned to the Purchaser conditional on such insurance being assignable; and
(o) The United States Patent No. 6,444,238 Pain Relief Composition and Method of Relieving Pain DBC File No. R1261.101.101 including all associated formulation worksheet has been renewed for a period of at least one year following its current expiry date of March 3, 2014 and transferred to the Purchaser.
Appears in 1 contract
Conditions to Obligations of Purchaser. (a) The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are Purchase shall be subject to the fulfillment satisfaction or, to the extent permitted by Law, waiver at Purchaser’s sole discretion on or written waiver, prior to or at the ClosingClosing Date, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(ai) Each of the The representations and warranties of Sellers Seller and the Company contained in ARTICLE IV Article 3 of this Agreement shall be true and correct (disregarding for in all *** as of the purposes of such determination any qualification as to materiality or Material Adverse Effect) Effective Date and as of the Closing Date as if made on Date, except to the Closing Date (except for extent that such representations and warranties that speak are made as of a specific date or timedate, in which case such representations and warranties shall be true and correct only as of such date or time), except to in all ***;
(ii) Seller and the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to Company shall have, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects *** respects, performed each obligation and agreement and complied with all agreements and obligations each covenant required by this Agreement and the Collateral Documents to be performed or complied with by Sellers it prior to or at the Closing.;
(ciii) Sellers Between the Effective Date and the Closing Date, no Material Adverse Effect shall have delivered, or caused occurred and no Event shall have occurred that is reasonably expected to be delivered, to Purchaser:have a Material Adverse Effect;
(iiv) Purchaser shall have received a certificate executed certificate, dated as of the Closing Date by a duly authorized representative Date, from an executive officer of Sellers, on behalf the Seller certifying (w) the satisfaction of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
Sections 6.2(a)(i), (ii) the Equity Registration Rights Agreement, duly executed by Parent;
and (iii), and the Minimum Tower Cash Flow Requirement, (x) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect that attached thereto are true and correct copies of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited resolutions of Seller and the Delayed Closing EntitiesCompany duly authorizing the transactions contemplated in connection herewith, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentationy) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to incumbency of all signatories of Seller and (z) the Parties Organizational Documents of Seller and duly executed by the appropriate SellerCompany;
(v) Purchaser shall have received, at Purchaser’s expense, marked commitments for owners’ and mortgagees’ title insurance in an omnibus assignment aggregate amount at least equal to the Purchase Price and assumption agreementin form and substance acceptable to Purchaser and Purchaser’s lender(s), substantially including the endorsements and affirmative coverages specified on Schedule 6.2(a)(v), and insuring leasehold title in the form attached hereto as Exhibit Q (case of Leasehold Properties, or insuring the “Assignment and Assumption Agreement”)right under any Easement or other insurable property right, together in each case, with all no exceptions, other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Sellerthan exceptions for Permitted Exceptions;
(vi) a novation agreementeach document or item required to be delivered at the Closing, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”pursuant to Section 2.3(b), duly executed by Sellers shall have been delivered and the appropriate United States Governmental Authoritiesremain in full force and effect;
(vii) Purchaser shall have received evidence to its reasonable satisfaction to the effect that (A) all Indebtedness for borrowed money of the Company has been paid and discharged in full, (B) all Liens of any person on any of the assets of the Company have been terminated, released and/or discharged, (C) all guarantees, if any, have been released in accordance with Section 5.10(b), and (D) the Company’s credit facility with The Bank of New York has been terminated, and UCC termination statements have been filed relating thereto, and Purchaser shall have received a government related subcontract agreement, substantially pay-off letter duly executed by The Bank of New York with respect to such credit facility and in the form attached hereto as Exhibit S reasonably satisfactory to Purchaser (the “Government Related Subcontract AgreementPayoff Letter”), duly executed by Sellers;
(viii) Purchaser shall have received (i) a copy of each outstanding NOTAM affecting any Tower as of five (5) business days prior to the Closing Date, and (ii) a list of such NOTAMs certified by an omnibus intellectual property assignment agreementexecutive officer of Seller and the Company indicating, substantially in each case, the form attached hereto as Exhibit T period of time for which each such NOTAM has been outstanding (the “Intellectual Property Assignment AgreementNOTAM Report”), duly executed by Sellers;
(ix) a transition services agreementThe Company shall, substantially in and Seller shall cause the form attached hereto as Exhibit U Company to, have delivered to Purchaser the Releases and the written resignation and waiver of each director (and, if so requested by Purchaser, each officer) of the “Transition Services Agreement”Company required pursuant to Section 5.10(a), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside Each of the United States), Contracts of the Company set forth on Schedule 6.2(a)(x) that the Purchaser directs be terminated in customary form, subject only writing to Permitted Encumbrances, conveying Seller no later than ten (10) business days after the Owned Real Property Effective Date shall have been duly terminated with no liability thereunder to Purchaser (the “Quitclaim Deeds”), duly executed by Company after the appropriate SellerClosing Date or to Purchaser;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment Each of *** and assumption of the leases *** shall have entered into Non-Competition and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together Non-Disclosure Agreements with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United StatesPurchaser, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as of Exhibit W (the “Assignment and Assumption of Harlem Lease”)E hereto, duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and agreements shall be in full force and effect;
(xii) Purchaser shall have received the Title Certification, duly executed by Seller; and
(xiii) each of the employment agreements with Ricci and Xxxxxxx set forth in Section 3.13(g) of the Disclosure Schedule shall have been terminated with no liability to the Company after the Closing.
(eb) The UAW Retiree Settlement Notwithstanding anything contained in this Agreement to the contrary, (i) Purchaser may, to the extent permitted by Law, waive the satisfaction of one (1) or more conditions set forth in this Section 6.2, and the waiver of any such condition shall have been executed no effect on whether any other condition is satisfied or waived and delivered by (ii) the UAW and waiver of any such condition with respect to one Site shall have been approved by the Bankruptcy Court as part of the Sale Approval Orderno effect on whether such condition is satisfied or waived with respect to any other Site.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are shall be further subject to the fulfillment satisfaction or written waiver, waiver at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the The representations and warranties of Sellers contained Seller set forth in ARTICLE IV of this Agreement including, without limitation, the representations contained within each Monthly Representation Report, shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) in all respects, on and as of the Closing Date as if (unless any such representation or warranty is made on the Closing Date (except for representations and warranties that speak only as of a specific date or timedate, in which representations event such representation and warranties warranty shall be true and correct only in all respects as of such date or time), except to specified date) with the extent that any breaches of same effect as though such representations and warrantieswarranties had been made or given on and as of the Closing Date, individually or except where the failure of any such representations and warranties to be so true and correct, in the aggregate, have has not had, or had and would not reasonably be expected likely to have, have a Material Adverse Effect.;
(b) Sellers Seller shall have performed or and complied with, in all material respects with all respects, the obligations, agreements and obligations covenants, required by this Agreement to be performed by or complied with by Sellers it under this Agreement at or prior to or at the Closing.Closing Date;
(c) Sellers Purchaser shall have delivered, or caused to be delivered, to Purchaser:
(i) received a certificate executed as of an executive officer of the Closing Date by a duly authorized representative of SellersSeller, on behalf of Sellers the Seller and not in such authorized representativeexecutive officer’s individual capacitycapacity (the “Seller Certificate”), certifying that that, to the best of such executive officer’s knowledge, the conditions set forth in Section 7.2(a) and Section 7.2(b) 7.2 have been satisfied;
(iid) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer Seller shall have delivered to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters items set forth in Section 6.16(e), and (B) certifying as to the incumbency 2.8 of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a partyAgreement;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement Seller shall have been executed assumed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part assigned to Purchaser all of the Sale Approval Order.Assumed Contracts that constitute material customer and vendor agreements as reasonably identified by Purchaser on Schedule 5.16 and substantially all other Assumed Contracts on Schedule 5.16, as Schedule 5.16 is modified by Purchaser through the Closing;
(f) The Canadian Operations Continuation Agreement If requested by Purchaser, Seller shall have been executed received or obtained all third party consents in respect (i) of any joint venture, partnership, operating or shareholder agreement (other than Metalsa), (ii) of the transfer of the direct or indirect ownership of any Foreign Entity, or (iii) any contract to the extent such default would reasonably be likely to cause at least Two Million Dollars ($2,000,000) of Liabilities or damages for Purchaser, unless as a result of the Sale Order or other Final Order of the Bankruptcy Court, no third party consent is required for Purchaser to receive the full benefits of the agreements, ownership interests or contracts referred to above without default or damage thereto, which consents may be set forth, from time to time, on Schedule 7.2(f), as modified by Purchaser, from time to time, until five (5) Business Days prior to the Closing;
(g) Since January 1, 2007, no event or events shall have occurred which has or would reasonably be expected to have a Material Adverse Effect;
(h) The amount of the DIP Payment shall not exceed Six Hundred Eighty Million Dollars ($680,000,000) net of Seller’s domestic entities’ unrestricted cash;
(i) The amount of Net Foreign Financial Indebtedness shall not exceed the equivalent of One Hundred Five Million Dollars ($105,000,000) (and delivered by Purchaser shall have received a certificate of the parties thereto Chief Financial Officer of Seller on behalf of Seller and not in his personal capacity calculating Net Foreign Financial Indebtedness in accordance with this Agreement in reasonable detail);
(j) the form previously distributed among themamount of the Second Lien Payment plus the amount of the IRB Payment shall not exceed Eighty Four Million Eight Hundred Thousand Dollars ($84,800,000).
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations of Purchaser Purchaser’s obligation to consummate purchase the transactions contemplated by this Agreement Shares at the Closing as set forth in Section 2.01 are subject to the fulfillment satisfaction or written waiver, on or prior to or at the Closingsuch Closing Date, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the representations Assured and warranties of Sellers contained in ARTICLE IV of this Agreement shall be true and correct Mosaic Capital Advisors, LLC (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effecttogether with its Affiliates, “Mosaic”) as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements executed the Series B and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, Series C Exchange Letter substantially in the form attached hereto as Exhibit P (F and the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;transactions contemplated thereby shall have been consummated.
(vb) an omnibus assignment Assured and assumption agreement, substantially Xxxxxx X. XxxXxxxxxx shall have executed the Series B Exchange Letter in the form attached hereto as Exhibit Q (G and the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;transactions contemplated thereby shall have been consummated.
(vic) a novation agreement, substantially Assured and Xxxxxx Xxxxx shall have executed the Series B Exchange Letter in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers H and the appropriate United States Governmental Authorities;transactions contemplated thereby shall have been consummated.
(viid) a government related subcontract agreement, substantially Each of the Exchange Letters in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly I shall have been executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed and delivered by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment parties thereto and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated thereby shall have been consummated.
(e) The Certificate of Designations shall have been filed by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e)or on behalf of Assured with, and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from accepted by, the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval OrderNevada.
(f) The Canadian Operations Continuation SEC shall not have in any way objected to or informed Assured that it has any comments on the Schedule 14F-1 and at least 10 days shall have elapsed since the Schedule 14F-1 was filed with the SEC and transmitted to stockholders entitled to vote on the election of directors.
(g) The Stockholders’ Agreement shall have been executed and delivered by the parties thereto thereto.
(h) The Investor Rights Agreement shall have been executed and delivered by the parties thereto.
(i) Assured and Xxxxxx XxxXxxxxxx shall have entered into an employment agreement substantially in the form previously distributed among themattached hereto as Exhibit J.
(j) Assured and Xxxxxx Xxxxx shall have entered into an employment agreement substantially in the form attached hereto as Exhibit K.
(k) The Board shall have set the number of directors who may serve on the Board at seven (7) and Xxxxx Xxxxxxxxxxx, Xxxxxx Xxxxx and Xxxxx Xxxx shall have resigned from the Board effective at the Closing.
(l) Assured shall have paid Xxxxxxx Capital fees in the amount set forth in the Assured Disclosure Letter in connection with the transactions contemplated hereby.
(m) Assured shall have paid PH Management Company, LLC a transaction fee in an amount equal to $250,000.
(n) All stock options and warrants owned by Xxxxxx XxxXxxxxxx, Xxxxxx Xxxxx and Xxxx Xxxx Xxxxxx, and their respective Affiliates, prior to the Closing shall have been cancelled.
(o) The Board shall have adopted a form of indemnification agreement between Assured and each member of the Board and executive officer thereof in the form of Exhibit L hereto.
(p) The Board shall have adopted the Charter Amendment and the Equity Incentive Plan.
(q) The Board shall have adopted the amended Bylaws in the form attached hereto as Exhibit M.
(r) The representations and warranties made by Assured in Article III hereof shall have been true and correct on the date hereof and shall be true and correct on the Closing Date with the same force and effect as of they had been made on and as of the Closing Date.
(s) Assured shall have performed all obligations, covenants and agreements required herein to be performed by it on or prior to the Closing.
(t) There shall not be any threatened or pending Litigation before any court, arbitrator or Governmental Authority brought by any person or Governmental Authority: (i) against Assured or any Assured Subsidiary seeking material damages or other material relief, or (ii) challenging or seeking to restrain or prohibit the consummation of the transactions contemplated in the Transaction Agreements, or seeking to obtain any damages from Purchaser or Assured as a result of transactions contemplated in the Transaction Agreements. No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the transactions contemplated in the Transaction Agreements shall be in effect.
(u) There shall have been no event that has had, or could reasonably be expected to have, a Material Adverse Effect since June 30, 2008.
(v) All authorizations, approvals and permits, if any, of any Governmental Authority or regulatory body of the United States or of any state that are required to be obtained on or prior to the Closing in connection with the issuance of and sale of the Shares pursuant to this Agreement and the additional authorizations, notifications, approvals, waivers and permits that are set forth on Schedule 6.01(w) shall have been duly obtained and shall be effective as of the Closing Date.
(w) Assured shall have taken all actions and received and delivered to Purchaser, in a form satisfactory to Purchaser, all documents and certificates listed on Schedule 6.01(x).
(x) Assured shall have delivered to Purchaser or its counsel copies of all corporate documents of Assured and the Assured Subsidiaries as Purchaser or their counsel shall reasonably request.
(y) Purchaser shall have received from the Secretary of Assured a certificate having attached thereto: (i) the Charter as in effect at the time of the Closing, (ii) the Bylaws as in effect at the time of the Closing, (iii) resolutions approved by the Board authorizing the transactions contemplated by the Transaction Agreements, (iv) good standing certificates with respect to Assured and each of the Assured Subsidiaries from the applicable authority(ies) in Nevada and any other jurisdiction in which Assured or any Assured Subsidiary is qualified to do business, dated a recent date before the Closing Date, and (v) the account number of the Separate Account.
(z) Purchaser shall have received from legal counsel to Assured opinions addressed to it, dated as of the Closing Date, in substantially the form attached hereto as Exhibit N. (aa) Assured shall have delivered to Purchaser evidence that it has restated its 401(k) plan as a non-standardized adoption agreement, which lists only Assured and certain of the Assured Subsidiaries as participating employers.
(bb) Assured shall have delivered to Purchaser a Compliance Certificate, executed by the President or Chief Executive Officer of Assured, dated as of the Closing Date, to the effect that the conditions specified in subsections (s)-(w) of this Section 6.01 have been satisfied.
(cc) Assured shall have received and delivered to Purchaser evidence, in a form satisfactory to the Purchaser, of the purchase by Mosaic of an additional $462,600 in aggregate principal amount of Assured’s 18% Unsecured Convertible Debentures.
(dd) Assured shall have received and delivered to Purchaser evidence, in a form satisfactory to Purchaser, of the approval of the change in ownership application by the California State Board of Pharmacy.
Appears in 1 contract
Samples: Securities Purchase Agreement (Assured Pharmacy, Inc.)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate effect the transactions contemplated by this Agreement are shall be subject to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the representations and warranties of Sellers contained made by Seller in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification disclosure schedule that are qualified as to materiality or Material Adverse Effect) Effect shall be true and correct, and the representations and warranties made by Seller in this Agreement that are not so qualified shall be true and correct in all material respects, as of the date of this Agreement; and all such representations and warranties, certifications and statements of Seller that are qualified as to materiality or Material Adverse Effect shall be true and correct, and all such representations and warranties, certifications and statements of Seller that are not so qualified shall be true and correct in all material respects, as of the Closing Date with the same effect as if though such representations and warranties had been made on and as of the Closing Date (except for any such representations or warranties that are no longer true and correct as a direct result of Purchaser’s failure to maintain Association Casualty’s license to do business in North Carolina in accordance with Section 3.2(c), and except that representations and warranties that speak as of made with respect to a specific specified date or time, which representations and warranties shall need only be true and correct only as of such date or timedate), except and Purchaser shall have received a certificate to the extent that any breaches such effect signed by an authorized officer of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.Seller;
(b) Sellers Seller shall have performed or and complied in all material respects with all agreements and obligations conditions required by this Agreement to be performed or complied with by Sellers Seller at or prior to or at the Closing., and Purchaser shall have received a certificate to such effect signed by an authorized officer of Seller;
(c) Sellers the transactions contemplated hereby shall have deliveredbeen approved or not disapproved at the conclusion of all applicable waiting periods, as the case may be, by the Georgia Insurance Commissioner, the Texas Insurance Commissioner and the Missouri Insurance Commissioner and each such approval shall remain in effect, and such other licenses, consents and approvals of any Governmental Entity as are required by law in order to permit each of the parties hereto to consummate the transactions contemplated by this Agreement shall have in each case been obtained and not rescinded (other than with respect to the matters set forth in Section 3.2(c)), and any and all applicable waiting periods imposed by law shall have expired;
(d) no order entered or law promulgated or enacted by any court, legislature or other Governmental Entity shall be in effect which would prevent the consummation of the transactions contemplated hereby, and no claim, action, suit or proceeding shall have been commenced and be pending which seeks to restrain, prevent, materially delay or restructure the transactions contemplated hereby or which otherwise questions the validity or legality of such transactions;
(e) the waiting period under the Hxxx-Xxxxx-Xxxxxx Act (and any extension thereof) shall have expired or terminated, if applicable;
(f) at or prior to the Closing, Seller shall cause Bank to release the Shares of Georgia Casualty and Association Casualty from the Pledge Agreement; and
(g) from and after the date hereof, there shall have been no material adverse change in the financial condition, operations or prospects of the Subsidiaries.
(h) prior to the Closing, Seller shall cause the Subsidiaries to dispose of the securities listed on Schedule 4.2(h); provided, in the event that such securities are sold after December 31, 2007, the Purchase Price shall be (i) increased by the amount, if any, that the sales price received for such securities exceeds the book adjusted carrying value for such securities shown on the Annual Statements of the Subsidiaries for the year ended December 31, 2007 (the “Book Value”), net of tax, or caused to be delivered(ii) decreased by the amount, to Purchaser:if any, that the Book Value exceeds the sales price for such securities, net of tax;
(i) a certificate executed as simultaneous with the Closing, Seller shall, and shall cause the Subsidiaries to, terminate all management agreements, cost allocation agreements and leases, whether written or otherwise, between any of the Closing Date by a duly authorized representative Subsidiaries and Seller or any of Sellersits affiliates, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth Subsidiaries other than the contracts referred to in Section 7.2(a4.2(k) and Section 7.2(b) have been satisfiedhereof;
(iij) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited Purchaser and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially Seller shall have entered into a mutually agreeable Non-Competition Agreement in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxivk) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement Seller shall have been ratified entered into contracts with the Subsidiaries and/or Purchaser on terms mutually agreeable to Purchaser and Seller pursuant to which Seller or its affiliates shall provide to the Subsidiaries and/or Purchaser certain services to be mutually agreed upon by the membership, shall have been assumed by the applicable Sellers Purchaser and assigned to Purchaser, and shall be in full force and effectSeller.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate effect the transactions contemplated by this Agreement are Acquisition is further subject to the fulfillment satisfaction (or, to the extent permitted by Law, waiver) on or written waiver, prior to or at the Closing, of each Closing Date of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the (i) The representations and warranties of Sellers contained Seller set forth in ARTICLE IV of this Agreement Sections 4.01 and 4.02(a) shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) correct, as of the Closing Date as if though made on the Closing Date (Date, except for to the extent such representations and warranties that speak as of a specific expressly relate to an earlier date or time, (in which case such representations and warranties shall be true and correct only on and as of such date or timeearlier date), except to the extent that any breaches of such and (ii) all other representations and warrantieswarranties of Seller set forth in this Agreement shall be true and correct, except for any failure to be true and correct that would not, individually or in the aggregate, have not had, or would not reasonably be expected to have, have a Business Material Adverse Effect.;
(b) Sellers Seller shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed by it under this Agreement at or complied with by Sellers prior to or at the Closing.Closing Date;
(c) Sellers Purchaser shall have deliveredentered into a Consent, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers Assignment and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Novation Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties Purchaser, and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers Purchaser and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreementPublic Utility District No. 1 of Cowlitz County, substantially in Washington, evidencing the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside portion of the United States, each duly executed Cowlitz Agreement to be assumed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real PropertyPurchaser pursuant hereto;
(xiiid) Purchaser shall have received a certificate signed on behalf of Seller by an assignment and assumption executive officer of Seller certifying the satisfaction by Seller of the lease conditions set forth in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”Sections 7.03(a), duly executed by Harlem;
(xive) an omnibus lease agreement Since the date hereof there shall not have been any Effect that, individually or in respect the aggregate, has had or would reasonably be expected to have a Business Material Adverse Effect; and
(f) Seller shall have executed and delivered to Purchaser each of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements other Transaction Documents to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Purchaser's waiver, prior to at or at before the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the The representations and warranties of Sellers Vendor contained in ARTICLE IV of this Agreement and in the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding for in the purposes case of such determination any qualification as to representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as if though made on the Closing Date at and as of such date (except for those representations and warranties that speak address matters only as of a specific specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) Vendor shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or timecomplied with by it prior to or on the Closing Date; provided that, with respect to agreements, covenants and conditions that are qualified by materiality, Vendor shall have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) No Action shall have been commenced against Purchaser, the Vendors or AGB, which representations would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and warranties be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) From the date of this Agreement, there shall be true and correct only as of such date not have occurred any Material Adverse Effect, nor shall any event or time), except to the extent that any breaches of such representations and warrantiesevents have occurred that, individually or in the aggregate, have not hadwith or without the lapse of time, or would not could reasonably be expected to have, result in a Material Adverse Effect.
(be) Sellers The Transaction Documents (other than this Agreement) shall have performed or complied in all material respects with all agreements been executed and obligations required delivered by this Agreement the parties thereto and true and complete copies thereof shall have been delivered to be performed or complied with by Sellers prior to or at the ClosingPurchaser.
(cf) Sellers Purchaser shall have delivered, or caused received the Closing Balance Sheet no later than 5 Business days prior to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date and the Closing Balance Sheet shall be acceptable to Purchaser, acting reasonably.
(g) Purchaser shall have received a certificate, dated the Closing Date and signed by a duly authorized representative officer of SellersAGB, on behalf that each of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a6.02(a) and Section 7.2(b6.02(b) have been satisfied;satisfied and that there has been no loss of any material permit, license, lease or other held by AGB, including, without limitation, any lapse of, default under, or termination of, the License Application.
(iih) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) have received a certificate of an officer of each Seller (A) AGB certifying that attached to such certificate thereto are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) all resolutions of adopted by the board of directors of such Seller, AGB authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, other Transaction Documents and the consummation of the transactions contemplated by hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.
(i) Purchaser shall have received a certificate of an officer of AGB certifying the names and signatures of the officers of AGB authorized to sign this Agreement and such Ancillary Agreements Agreement, the Transaction Documents and the matters set forth in Section 6.16(e), other documents to be delivered hereunder and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;thereunder.
(xxj) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) Vendor shall have delivered to Purchaser a certificate of good standing for each Seller AGB from the Secretary applicable British Columbia Registrar of State Companies.
(k) Vendor shall have delivered, or caused to be delivered, to Purchaser share certificates representing the Purchased Shares, free and clear of Encumbrances, duly endorsed in blank or accompanied by share transfers or other instruments of transfer duly executed in blank, together with a share certificate representing all of the State Purchased Shares issued in the name of Delaware;the Purchaser and a copy of the share register, or similar document, of AGB showing Purchaser as the recorded owner of the Purchased Shares, and a legal opinion from counsel to AGB confirming various corporate matters relating to AGB as Purchaser may request, acting reasonably, and including confirmation that Purchaser is the recorded owner of the Purchased Shares and that the Purchased Shares represent 100% of the Purchased Shares of AGB.
(xxiil) AGB will have delivered the original License Application to the Purchaser, together with copies of any subsequent submissions to Health Canada or correspondence with Health Canada in respect of or related to the License Application.
(m) Vendor shall have delivered to the Purchaser the complete minute books of AGB.
(n) AGB having entered into a management services agreement (the “Service Agreement”) with Xxxx Xxxxx in substantially the form attached as Schedule 6.02(n).
(o) AGB having delivered, or caused to be delivered, a Joinder Agreement, in the form attached as Schedule 6.02(o), duly executed by AGB Shareholders holding not less than 91% of the issued and outstanding Purchased Shares.
(p) AGB having delivered, or caused to be delivered, an Escrow Agreement, in substantially the form attached as Schedule 6.02(p), duly executed by each of Xxxx Xxxxx and Xxx Xxxxx (or, as applicable, an affiliate to whom their written agreement respective Consideration Shares are being issued).
(q) Vendor shall have delivered, or caused to treat be delivered, to Purchaser certificates representing the Relevant Transactions AGB Options, free and clear of Encumbrances, duly endorsed in blank or accompanied by share transfers or other instruments of transfer duly executed in blank.
(r) Vendor shall have delivered to the Purchaser evidence, to the Purchaser’s satisfaction, acting reasonably, the Lease will, following Closing, be renegotiated on terms satisfactory to the Purchaser, acting reasonably.
(s) Vendor shall have delivered to Purchaser such other documents or instruments as Purchaser reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)Agreement.
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Share Purchase Agreement
Conditions to Obligations of Purchaser. The obligations of Purchaser Purchaser's obligation to consummate the transactions contemplated by this Agreement are is subject to to:
(a) The satisfactory completion, in Purchaser's sole discretion, of Purchaser's due diligence investigation concerning the fulfillment Business within thirty (30) days of Purchaser's receipt of, or written waiveraccess to, prior to Seller's Records.
(b) Satisfaction (or at waiver by Purchaser) on or before the Closing, Closing Date of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a1) Each of the representations and warranties of Sellers Seller contained in ARTICLE IV of this Agreement shall be have been true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) in all material respects when made and as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse EffectDate.
(b2) Sellers Seller shall have performed or and complied with, in all material respects with respects, all agreements agreements, covenants, conditions and obligations required by contained in this Agreement and required to be performed or complied with by Sellers prior to Seller on or at before the ClosingClosing Date.
(c3) Sellers shall have deliveredAll authorizations and approvals of or consents of, or caused filings with, any governmental authority or other Person required to be delivered, to Purchaser:
(i) a certificate executed as of obtained or made by Seller in connection with the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicablewithout limitation, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxivany consents required under any Other Assumed Agreements) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, obtained or made and shall be in full force and effect.
(e4) The UAW Retiree Settlement Agreement Seller shall have been at least 2,945 Customers.
(c) Receipt by the Purchaser, at the Closing of
(1) Such bills of sale, assignments and other instruments of transfer required to effectively transfer and assign good and marketable title to the Assets to Purchaser in accordance therewith.
(2) Certified copies of resolutions duly adopted by the Board of Directors and stockholders of Seller approving this Agreement and the transactions contemplated hereby.
(3) All Records or copies of the Records pursuant to Section 2.1(a) herein.
(4) Noncompetition Agreements executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval OrderPrincipals.
(f5) The Canadian Operations Continuation Agreement shall A certificate signed by the Seller's president, dated the Closing Date, to the effect that the conditions set forth in Paragraph (b) of this Section 4.2 have been executed satisfied.
(6) Such other documents and delivered by instruments as may be reasonably requested and satisfactory to Purchaser and its counsel in connection with the parties thereto in the form previously distributed among themSeller's satisfaction of each of its obligations hereunder.
(7) Updated Schedule 3.1(b)(viii).
Appears in 1 contract
Samples: Purchase Agreement (Digital Television Services of Kansas LLC)
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are Closing is subject to the fulfillment satisfaction (or written waiver, prior to or at the Closing, of each waiver by Purchaser) of the following further conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each Sellers shall have performed in all material respects all of their obligations hereunder required to be performed by Sellers on or prior to the Closing Date;
(b) the representations and warranties of Sellers contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) at and as of the Closing Date Date, as if made on at and as of such date (or to the Closing Date (except for extent such representations and warranties that speak as of a specific date or timean earlier date, which representations and warranties they shall be true and correct only as of such date or timeearlier date), except to the extent that any breaches of with only such representations and warranties, individually or exceptions as would not in the aggregate, have not had, or would not aggregate reasonably be expected to have, have a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.;
(c) Sellers Purchaser’s title insurance company shall have deliveredbe prepared to issue to Purchaser and Purchaser’s lenders a marked title binder without exception, except as provided herein or caused to be delivered, to Purchaser:
(i) a certificate executed as approved by Purchaser for the transfer of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Acquired Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiiid) an assignment The Approval Order shall provide that (i) all Liens (other than Permitted Liens and assumption Assumed Liabilities) shall have been released, or shall be released at the time of Closing, from the Purchased Assets, (ii) each of the lease in respect Material Assumed Contracts is assumed by Sellers and assigned to Purchaser pursuant to Section 365 of the premises located Bankruptcy Code at 0000 Xxxxxx Xxxxxxthe time of Closing, Xxx Xxxxand (iii) subject to Section 2.5, Xxx Xxxx, substantially in each of the form attached hereto as Exhibit W (Assumed Contracts other than the “Assignment Material Assumed Contracts is assumed by Sellers and Assumption assigned to Purchaser pursuant to Section 365 of Harlem Lease”), duly executed by Harlemthe Bankruptcy Code at the time of Closing;
(xive) an omnibus lease agreement in respect of At any time on or after the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance date of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is there shall not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtednesshave occurred any Material Adverse Effect; and
(xxivf) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement Neither Bankruptcy Case shall have been ratified by dismissed or converted to a case under another chapter of the membershipBankruptcy Code, and no trustee or examiner with expanded powers shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be appointed in full force and effecteither Bankruptcy Case.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written waiver, at or prior to or at the ClosingEffective Time, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each No provision of any applicable law and no governmental order shall prohibit the consummation of the transactions contemplated by this Agreement;
(b) The transactions contemplated by the Asset Purchase Agreement (the "Asset Purchase Agreement"), by and between Purchaser, King Forward Inc., Tiger Eye Broadcasting Corporation, Tiger Eye Licensing L.L.C. and Bella Spectra Corporation shall have been consummated;
(c) All representations and warranties of the Sellers contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) complete in all material respects at and as of the Closing Date date of this Agreement and as if of the Effective Time as though made on at and as of the Closing Date (Effective Time except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.changes contemplated by this Agreement;
(bd) The Sellers shall have performed or and complied in all material respects with all agreements covenants, agreements, and obligations conditions required by this Agreement to be performed or complied with by Sellers it prior to or at on the ClosingEffective Time.
(ce) Sellers All consents, permits, notices, or approval of governmental authorities and other third parties necessary to consummate the transactions contemplated by this Agreement as set forth on Schedule D hereto, including the FCC Approval, shall have deliveredbeen obtained or granted and delivered to Purchaser without the imposition on Purchaser of any material adverse conditions.
(f) The execution and delivery of the Investor Rights Agreement by the Company and the Sellers party thereto.
(g) Delivery of one or more certificates evidencing each Seller's Shares, endorsed to the Purchaser or caused accompanied by duly executed stock powers or other instrument of assignment.
(h) Between the date of this Agreement and Effective Time, there shall have been no Material Adverse Effect. “Material Adverse Effect” means any event, state of facts, circumstance, development, change, effect or occurrence (an “Effect”) that, individually or in the aggregate with any other Effect, has had or would reasonably be expected to be deliveredhave a materially adverse effect on (a) the business, properties, assets, financial (and other) condition or results of operation of the Company or (b) the ability of a Seller to Purchaser:
perform its obligations under this Agreement, excluding in all respects any Effects resulting from (i) a certificate executed as conditions in the economy of the Closing Date by a duly authorized representative United States generally, including changes in the United States or foreign credit, debt, capital or financial markets (including changes in interest or exchange rates) or the economy of Sellersany town, on behalf of Sellers and not city or region or country in such authorized representative’s individual capacitywhich the Stations, certifying only to the extent that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
Effects thereof are not disparately adverse to or on the Company, conduct business, (ii) general changes or developments in the Equity Registration Rights Agreementbroadcast low power television industry to the extent that the Effects thereof are not disproportionately adverse to or on the Company, duly executed by Parent;
(iii) stock certificates or membership interest certificatesthe execution and delivery of this Agreement, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance announcement of this Agreement and the Ancillary Agreements to which such Seller is a partytransactions contemplated hereby, the consummation of the transactions contemplated hereby, the compliance with the terms of this Agreement or the taking of any action required by this Agreement and or consented to by Purchaser, or (iv) earthquakes, hurricanes, tornadoes, natural disasters or global, national or regional political conditions, including hostilities, military actions, political instability, acts of terrorism or war or any escalation or material worsening of any such Ancillary Agreements and hostilities, military actions, political instability, acts of terrorism or war existing or underway as of the matters date hereof only to the extent that the Effect thereof is not disproportionately adverse to or on the Company or (v) the actual knowledge of the Purchaser of the information related to the Company set forth in Section 6.16(e), the exhibits and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)schedules hereto.
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The All obligations of Purchaser to consummate Purchaser, at its option, are conditioned upon the transactions contemplated by this Agreement are subject to the fulfillment or written waiverfulfillment, prior to or at the Closing, of each all of the following conditions; provided, however, that in no event any one or more of which may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):be waived by Purchaser:
(a) Each All of the Seller's warranties and representations and warranties of Sellers contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) accurate as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse EffectClosing.
(b) Sellers Seller shall have performed or complied in all material respects with all agreements and of its obligations required by this Agreement hereunder to be performed or complied with by Sellers prior to or at the Closing.
(c) Sellers Seller shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth delivered all items referenced in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)3.02 hereof.
(d) The UAW Collective Bargaining Agreement There shall have been ratified by no material loss or destruction of the membership, shall have been assumed by the applicable Sellers and assigned assets to Purchaser, and shall be in full force and effecttransferred hereunder as of Closing.
(e) The UAW Retiree Settlement Agreement Seller shall have been executed and delivered by obtained the UAW and written consent of Intel Corporation to the assignment of the Intel Purchase Order (it being understood that neither party shall have been approved by the Bankruptcy Court as part of the Sale Approval Orderany further obligations under this Agreement if such consent is not obtained).
(f) The Canadian Operations Continuation Agreement Purchaser shall have entered into employment agreements with the following individuals: Tom Xxxxxxxxxx Henex Xxxxxxxx Waynx Xxx Mark Xxx
(g) Seller shall have provided Purchaser the opportunity to conduct the due diligence on the assets and transfers contemplated hereby and all aspects of Seller's business which could affect the representations and warranties or other obligations of Seller hereunder and shall be satisfied with the results of such diligence.
(h) Satisfactory amendments shall have been executed made to the primary License Agreements sufficient to support the underlying Sublicense Agreements, including without limitation, extending the term of the Sublicense Agreement for Patent Number 5,013,586 from June 13, 2006 until the life of the patent.
(i) Purchaser and delivered by Seller shall have entered into a Services Agreement regarding the parties thereto employees referenced in clause (f) above, in form and substance acceptable to the form previously distributed among themparties.
(j) Purchaser will use all reasonable efforts to satisfy all of the foregoing conditions.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate consummate, or cause to be consummated, the transactions contemplated by this Agreement are subject to the fulfillment or written waiver, prior to or at the Closing, of each satisfaction of the following additional conditions; provided, however, that any one or more of which may be waived in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):writing by Purchaser:
(a) Each of the The representations and warranties of the Sellers contained in ARTICLE IV of this Agreement that are qualified by Business Material Adverse Effect shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) in all respects as of the Closing Date date hereof and as of the Closing, as if made on the Closing Date anew at and as of that time (except for other than representations and warranties that speak made as of a specific date or timedate, which representations and warranties shall be true and correct only as of such that date). The representations and warranties of each of the Sellers contained in this Agreement that are not qualified by Business Material Adverse Effect shall be true and correct in all respects as of the date or timehereof and as of the Closing, as if made anew at and as of that time (other than representations and warranties made as of a specified date, which shall be true and correct as of that date), except where all such failures to the extent that any breaches of such representations be true and warrantiescorrect, individually or in the aggregate, have do not had, or would not reasonably be expected to have, constitute a Business Material Adverse Effect.
(b) Each of the covenants and agreements of each of the Sellers to be performed as of or prior to the Closing shall have been duly performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closingrespects.
(c) Each of the Sellers shall have delivered, or caused delivered to be delivered, to Purchaser:
(i) Purchaser a certificate executed signed by an officer of such Seller, dated as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacityDate, certifying that the conditions set forth specified in Section 7.2(aSections 6.2(a) and Section 7.2(b6.2(b) have been satisfied;fulfilled.
(d) From the date of this Agreement to the Closing Date, there shall not have occurred a Business Material Adverse Effect.
(e) Each of the Sellers shall have delivered to Purchaser the documents required by Section 1.5(b).
(f) The Sellers shall have executed and delivered to Purchaser the License Agreement.
(g) Purchaser shall have obtained all financing necessary for it to consummate the transactions contemplated hereby.
(h) Each of the Sellers shall be in compliance with the Qualifying Statutes. Without limiting the generality of the immediately preceding sentence, for purposes of this Section 6.2(h), the Sellers shall be deemed to be in compliance with the Qualifying Statutes with respect to any MSA State if (i) the Sellers shall have received a written release with respect to any and all liability under the Qualifying Statutes of such MSA State for the years 1999-2002, which release is effective on the Closing Date, and is not subject to any pre-Closing or post-Closing condition (other than, if applicable, the making of any payment contemplated by the immediately following sentence), (ii) the Equity Registration Rights AgreementSellers shall have entered into an agreement with such MSA State which provides for a release with respect to any and all liabilities under the Qualifying Statutes of such MSA State for the years 1999-2002 subject to the satisfaction of certain conditions, duly executed by Parent;
performance obligations or reaching agreements in the future (iii) stock certificates or membership interest certificatescollectively, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35"Release Conditions"), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true Agreement is in full force and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date, (B) all Release Conditions have been satisfied (other than, if applicable, the making of any payment contemplated by the immediately following sentence) and (C) the Sellers have provided Purchaser with reasonable evidence of the matters referred to in clauses (A) and (B) above (which may include the written acknowledgement of such MSA State or the National Association of Attorneys General to the effect that such agreement is in full force and effect and that all Release Conditions have been satisfied), or (iii) the Sellers have paid all amounts (other than, if applicable, the making of any payment contemplated by the immediately following sentence) asserted by such MSA State in writing to be required for the Sellers to be in compliance and either (A) the Sellers have provided Purchaser with reasonable evidence that they have paid such amounts or (B) such MSA State has acknowledged in writing that the payment of such amounts on the Closing Date is sufficient to satisfy the Sellers' obligations
(1) in the case of clause (i) above, such release is effective on the Closing Date, and is not subject to any pre-Closing or post-Closing condition (other than, if applicable, the making of any payment contemplated by the penultimate sentence of this Section 6.2(h)) or (2) resolutions in the case of clause (ii) above, the conditions set forth in clause (A), (B) and (C) have been satisfied and (y) the Sellers have no reason to believe that either of the board Sellers is in material noncompliance with the Qualifying Statutes that are not the subject of directors the release described in this sentence such that Purchaser's ability post-Closing to sell cigarettes in the MSA States under the Transferred Brands would be reasonably likely to be adversely affected in any material respect.
(i) The form and substance of such Sellerall actions, authorizing the executionproceedings, delivery instruments and performance of this Agreement and the Ancillary Agreements documents required to which such Seller is a party, the consummation of consummate the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be satisfactory in full force all reasonable respects to Purchaser and effectits counsel.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Purchaser’s waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the The representations and warranties of Sellers Seller contained in ARTICLE Article IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) in all material respects as of the Closing Date with the same effect as if though made on the Closing Date at and as of such date (except for those representations and warranties that speak address matters only as of a specific date or timespecified date, which representations and warranties shall be true and correct only in all respects as of that specified date).
(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date.
(c) Seller shall have delivered to Purchaser counterparts to the Transaction Documents (other than this Agreement) and such date or timeother documents and deliveries set forth in Section 3.02(a) to which the applicable Seller is a party duly executed by the applicable Seller.
(d) Purchaser shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 7.01(a), Section 7.01(b) and Section 7.01(f) have been satisfied (the “Seller Closing Certificate”).
(e) No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Governmental Order which is in effect and has the effect of making the transactions contemplated by this Agreement illegal, otherwise restraining or prohibiting consummation of such transactions or causing any of the transactions contemplated hereunder to be rescinded following completion thereof.
(f) There has been no event, occurrence or development (including the absence of Permits except to the extent extent, with respect to any such Permits, that any breaches Purchaser is to be provided access to or utilization of such representations and warranties, individually or Seller’s Permits in the aggregate, have not conduct of the Business pursuant to the Transition Services Agreement and such access or utilization is permitted under applicable Law) that has had, or would not that could reasonably be expected anticipated to have, a Material Adverse Effect.
(bg) Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.
(cThe consents set forth on Section 7.01(g) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement Disclosure Schedules shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, duly obtained and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment or written waiver, prior to or at the Closing, of each satisfaction of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):unless waived by Purchaser:
(a) Each of the The representations and warranties of Sellers contained Sellers, as set forth in ARTICLE IV of this Agreement Agreement, shall be true and correct (disregarding for in all material respects as of the purposes date of such determination any qualification as to materiality or Material Adverse Effect) this Agreement and as of the Closing Date as if though made on and as of the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time)Date, except as otherwise contemplated by this Agreement, and Sellers shall have performed in all material respects all obligations required to be performed by them under this Agreement at or prior to the extent that any breaches Closing Date, including the delivery of such representations and warranties, individually or in all closing items for the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effectbenefit of Purchaser.
(b) Sellers shall have performed or complied in all material respects with all agreements All consents and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as approvals of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form third parties necessary for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement shall have been obtained on reasonable commercial terms and conditions. Sellers shall obtain all necessary permits, authorizations, consents and approvals required by Governmental Entities prior to the Closing Date, other than permits, authorized consents and approvals, the lack of which will not have a Material Adverse Effect.
(c) There shall not have been any material damage to or loss or destruction of any properties or assets owned or leased by VSI that would cause a Material Adverse Effect.
(d) There shall be no mortgages, unsatisfied judgments, or pending litigation with any claim for injunctive relief or for damages in excess of $10,000 filed against VSI and there shall be no mortgages or liens against the Stock.
(e) LVI shall have delivered to Purchaser an accurate, complete and up-to-date aging of all of the accounts receivable of VSI which existed as of a date that is not more than two days prior to the Closing Date.
(f) All corporate and other approvals required to be obtained by Sellers in connection with the transactions contemplated by the Transaction Documents and the form and substance of all certificates and other documents delivered hereunder shall be reasonably satisfactory in form and substance to Purchaser.
(g) All of the directors and officers of VSI shall have resigned their positions with VSI effective as of the Closing other than Fred Bergquist, and prior thereto shall have executed appxxxxxxxx xxxxxses of VSI and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as appropriate documents with respect to the incumbency transfer or establishment of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;bank accounts, signing authority, etc., as Purchaser shall have reasonably requested.
(xxh) Sellers shall have delivered to Purchaser:
(i) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 Certificate of the Tax Code;
(xxi) a certificate of good standing for each Seller from Good Standing, issued by the Secretary of State of the State of DelawareLouisiana evidencing VSI's corporate good standing in such state;
(xxiiii) their written agreement a copy of the Articles of Incorporation and By-laws of VSI (each as amended to treat date) and an incumbency certificate listing the Relevant Transactions officers and the other transactions contemplated directors of VSI, each duly certified by this Agreement in accordance with Purchaser’s determination in Section 6.16an officer of VSI;
(xxiiiiii) payoff letters the minute books, stock certificate and related Encumbrance-release documentation transfer books, corporate seal and other corporate records of VSI;
(includingiv) a consent from the spouse of each individual Seller, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed and in the form of Exhibit "G" (the "SPOUSAL CONSENT");
(v) all keys and authorizations for transfer of VSI's post office boxes;
(vi) all funds required to be delivered or paid by Sellers at the holders of the secured IndebtednessClosing; and
(xxivvii) all books a certificate of a duly authorized officer of LVI, dated as of the Closing Date, certifying as to the incumbency of any person executing this Agreement or any certificate or other document delivered in connection with this Agreement on behalf of LVI and records of Sellers described in Section 2.2(a)(xiv)certifying such other matters as Purchaser reasonably requests.
(di) The UAW Collective Bargaining Agreement Sellers shall have been ratified delivered to Purchaser in writing, at and as of the Closing, a certificate duly executed by Sellers, in form and substance reasonably satisfactory to Purchaser and Purchaser's counsel, certifying that the membership, shall conditions in each of Sections 5.02(a) - (h) have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effectsatisfied.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate effect the transactions contemplated by this Agreement are shall be further subject to the fulfillment satisfaction at or written waiver, prior to or at the Closing, of each Closing of the following conditions; provided, howeverany or all of which may be waived, that in no event may Purchaser waive the conditions contained whole or in Section 7.2(d) or Section 7.2(e):part, by Purchaser:
(a) Each of the The representations and warranties of Sellers Seller contained in ARTICLE IV Article III of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) in all material respects at and as of the Closing Date as if made on the Closing Date (except for representations at and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), time (except to the extent that any breaches expressly made as of an earlier date, in which case as of such representations earlier date);
(b) Seller shall have performed and warrantiescomplied in all material respects with all agreements and covenants required to be performed or complied with by Seller under this Agreement at or prior to the Closing;
(c) Seller shall have procured all required third party consents.
(d) Purchaser shall have received from Seller a certificate, individually dated the Closing Date, duly executed by the Chief Executive Officer and Chairman of the Board of Seller, to the effect of Section 7.1(a)–(c) above;
(e) There shall not be pending any Action, litigation or proceeding by any Governmental Entity seeking to (i) prohibit or restrain the transactions contemplated by this Agreement or (ii) seeking to impose or confirm limitations on the ability of Purchaser to effectively exercise full rights of ownership of the Conveyed Assets after the Closing which, in the aggregatecase of clause (i) or (ii), have not hadwould have, or would not reasonably be expected to have, a Material Adverse Effect.Effect on Purchaser or materially increase the cost to Purchaser of consummating the transactions contemplated hereby or subject Purchaser or any of its Affiliates to any criminal or material civil liability;
(bf) Sellers Seller shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have delivered, delivered or caused to be delivered, delivered to Purchaser:
(i) a certificate executed as Purchaser each of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth documents specified in Section 7.2(a2.4(b) and Section 7.2(b) have been satisfiedhereof;
(iig) the Equity Registration Rights AgreementEach of Seller’s stockholders, on an individual basis, shall have duly executed by Parentan Investor Representations Letter and Seller shall have delivered or caused to be delivered to Purchaser such Investor Representations Letters;
(iiih) stock certificates or membership interest certificates, if any, evidencing Seller shall have complied with the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment provisions of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption bulk transfer laws of such lease or sublease shall be executed any jurisdiction in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of connection with the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as delivered to the incumbency of the officer(s) Purchaser evidence of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured IndebtednessPurchaser; and
(xxivi) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement Seller’s stockholders shall have been ratified by unanimously approved and duly authorized the membershipexecution, shall have been assumed by the applicable Sellers and assigned to Purchaserdelivery, and shall be in full force and effectperformance of this Agreement by Seller.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Asset Purchase Agreement (Spectrum Pharmaceuticals Inc)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate execute and deliver the transactions contemplated by applicable Closing Documents, to pay the Purchase Price and to perform Purchaser’s other obligations at the Closing under this Agreement are and shall be subject to the fulfillment or written waiver, prior to or at the Closing, satisfaction of each of the following conditions; providedconditions at or prior to the Closing, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):unless otherwise specified:
(a) Each Title to the Property and the Improvements shall be free of encumbrances other than Permitted Exceptions and the Title Insurer shall be willing to issue the Owner’s Policy at regular rates for an amount of insurance equal to the Purchase Price, and (ii) title to all items of the Project not consisting of the Property and the Improvements shall be free and clear of all liens, encumbrances, and security agreements, except the terms of the Equipment Leases;
(b) All of the representations and warranties of Sellers Seller contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of in all material respects on the Closing Date with the same effect as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.date;
(bc) Sellers The Financing Condition (described below) has been satisfied;
(d) Seller shall have performed or performed, observed, and complied in all material respects with all agreements covenants, agreements, and obligations conditions required by this Agreement to be performed or performed, observed, and complied with by Sellers on Seller’s part prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to PurchaserDate, including any the performance and deliveries required stamps affixed theretoby Section 6.1;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement Governmental Permits, to the extent transferrable, shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.effectively assigned or transferred to Purchaser;
(f) The Canadian Operations Continuation Agreement Liquor License shall have been executed and delivered by transferred to Purchaser or its designee, or Purchaser or its designee shall have obtained a new or temporary liquor license;
(g) Subject to the parties thereto terms of ARTICLE 4, there shall not have been any material adverse change in the form previously distributed among themcondition of the Project or any material adverse change or proposed material adverse change in any Laws applicable to the Project after the delivery of the Election Notice;
(h) Seller shall have delivered the Bookings Update, the Vehicle Certificates and Tenant Estoppel Certificates signed by each tenant at the Project;
(i) The “Mortgaged Property” (as such term is defined in the order appointing the Receiver) shall have reverted to Seller (from the Receiver) sufficient to permit delivery of possession of the Project to Purchaser at the Closing (the “Receiver Condition”); and
(j) The Department of Taxation certificate described in Section 6.9 shall have been delivered to Purchaser.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are hereby shall be subject to the fulfillment fulfilment at or written waiver, prior to or at the Closing, Closing of each of the following conditions; provided, howeverany of which may be waived, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):writing, by Purchaser:
(a) Each of the representations and warranties of Sellers contained NNL set forth in ARTICLE IV of this Agreement Article 3 hereof shall be true and correct (disregarding for on and as of the purposes of such determination any qualification as to materiality or Material Adverse Effect) date hereof and on and as of the Closing Date as if though such representations and warranties were made on the Closing Date and as of such date (except for representations and warranties that speak which address matters only as of to a specific date or timespecified date, which representations and warranties shall be true and correct only as of with respect to such date or timespecified date), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers NNL shall have performed or and complied in all material respects with all its covenants, obligations, conditions and agreements and obligations required by contained in this Agreement that are required to be performed or and complied with by Sellers prior to NNL on or at before the Closing.
(c) Sellers NNL shall have deliveredobtained and delivered evidence reasonably satisfactory to Purchaser to demonstrate that all material consents, approvals, authorizations or caused other action by, and any material filings with or notifications to, any Governmental Authority required to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date obtained or made by a duly authorized representative of Sellers, NNL on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following before the Closing in accordance connection with Section 6.30the transactions contemplated by this Agreement, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blankincluding, in proper form for the case of NNL, the Bankruptcy Consents and the share transfer to Purchaserreport under the Foreign Investment Promotion Law of Korea, including any required stamps affixed thereto;have been obtained or made, as the case may be, and Purchaser shall have obtained the FTC Clearance.
(ivd) an omnibus xxxx of sale, substantially in All consents under the form attached hereto Key Material Agreements as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;6.5 shall have been obtained.
(xviiie) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete Purchaser shall have received certified copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) corporate resolutions of the board of directors of such Seller, NNL authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements Transaction Documents.
(f) The waiver of the right of first refusal and co-sale right granted to LGE under the Joint Venture Agreement (the “LGE Waiver”), which such Seller is a partycontemplated in the Termination Agreement, shall have become effective.
(g) The closing conditions under the New Joint Venture Agreement as identified in Annex 1 shall have been satisfied or waived.
(h) Purchaser shall have received each of the items described in Section 2.5(b) on or before the Closing.
(i) There shall be in effect no Law, order, injunction, decree or judgment of any court or other Governmental Authority in Sweden, Canada or Korea prohibiting the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e)hereby, and (B) certifying as to the incumbency of the officer(s) of there shall not be any proceedings pending by any Governmental Authority in Sweden, Canada or Korea seeking such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)prohibition.
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate complete the transactions contemplated by this Agreement are subject provided for herein shall be subject, at its election, to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of Seller shall have performed all agreements required to be performed hereunder by it on or before the Closing Date.
(b) All representations and warranties of Sellers each Founder and Seller contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) correct, on and as of the Closing Date in all respects as if though made on and as of the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the ClosingDate.
(c) Sellers From the date of this Agreement to the Closing Date, there shall not have deliveredbeen any material adverse change in the Seller’s financial condition, assets, liabilities, or caused business other than changes in the usual and ordinary course of business or any damage, destruction, liability or loss, whether or not covered by insurance, from any cause whatsoever including but not limited to fire, condemnation proceeding, accident, or act of God adversely affecting the Seller’s assets or business, or any part thereof.
(d) On the Closing Date, no suit, action, or other proceeding shall be pending or threatened before any court or other governmental agency against Seller, either Founder, or the Company in which damages or other relief in connection with the Seller’s business or in connection with this Agreement or the consummation of the transactions contemplated herein are sought.
(e) On the Closing Date, Seller shall deliver or cause to be delivered, delivered to Purchaser:
Purchaser the following: (i) a certificate executed as of one or more certificates representing the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing EntitiesPurchased Securities, which the Parties agree may shall be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by a stock powers (or similar documentation) power duly endorsed executed in blank, blank in proper form for transfer to transfer; (ii) a written certificate from the Seller addressed to Purchaser, including any required stamps affixed thereto;in form and substance satisfactory to Purchaser in its sole discretion, certifying that the representations set forth in Section 2 above are true and correct and that the Seller has complied in all respects with the provisions of Sections 5 and 6 hereof; and (iii) such other documents as may reasonably be requested by Purchaser.
(ivf) an omnibus xxxx Execution and delivery by Seller and the Company of sale, the operating agreement substantially in the form of Schedule 8(f) attached hereto as Exhibit P and incorporated herein by this reference.
(the “Xxxx of Sale”), together with transfer tax declarations g) Execution and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed delivery by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, Seller of the registration rights agreement substantially in the form of Schedule 4(w) attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed incorporated herein by the appropriate Seller;this reference.
(vih) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside Approval of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed transaction by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(di) The UAW Collective Bargaining Agreement shall have been ratified by audit of Seller’s Financial Statements for the membershipperiods ending December 31, 2004 and December 31, 2005, shall have been assumed by completed and the applicable Sellers same shall be acceptable in form and assigned substance to Purchaser, and Purchaser shall be in full force and effectsatisfied with its review of all Unaudited Financial Statements.
(ej) The UAW Retiree Settlement Agreement shall have been executed Execution and delivered delivery by the UAW and shall have been approved by the Bankruptcy Court as part Seller of the Sale Approval Orderescrow agreement substantially in the form of Schedule 8(i) attached hereto and incorporated herein by this reference.
(fk) The Canadian Operations Continuation Agreement shall have been executed Execution and delivered delivery by Seller and the parties thereto Company of the contribution agreement substantially in the form previously distributed among themof Schedule 8(k) attached hereto and incorporated herein by this reference. Any condition specified in this Section 8 may be waived by Purchaser; provided that no such waiver will be effective unless it is set forth in a writing executed by Purchaser.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment or written Purchaser’s waiver, at or prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each The Company shall have obtained all governmental, regulatory or third party consents and approvals necessary for the sale of the Shares.
(b) Purchaser shall have received a certificate duly executed by the President and Chief Executive Officer of the Company, dated as of the Closing Date, certifying:
(i) all representations and warranties of Sellers contained in ARTICLE IV of this Agreement the Company shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date Date, with the same force and effect as if though made on and as of the Closing Date (except for representations and warranties that speak as of a specific date or timeDate, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.and
(bii) Sellers the Company shall have performed or all obligations and agreements and complied in all material respects with all agreements covenants and obligations required by conditions contained in this Agreement to be performed or complied with by Sellers it as of or prior to or at the ClosingClosing Date.
(c) Sellers Purchaser shall have received a certificate duly executed by the secretary or an assistant secretary (or equivalent officer) of the Company, dated as of the Closing Date, certifying:
(i) that attached thereto are true and complete copies of all resolutions and other consents adopted by the board of directors and stockholders of the Company authorizing and approving the execution, delivery, filing and performance of this Agreement and the other Transaction Documents to which Purchaser is a party and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions and consents are in full force and effect as of the Closing Date and are all the resolutions and consents adopted in connection with the transactions contemplated hereby and thereby;
(ii) that attached thereto are true and complete copies of the Certificate of Incorporation and Bylaws of the Company and that such organizational documents are in full force and effect as of the Closing Date; and
(iii) the names and signatures of the officers of the Company authorized to sign this Agreement, the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(d) The Company shall have delivered to Purchaser (i) a good standing certificate (or its equivalent) for the Company and each of the Subsidiaries from the secretary of state of the State of Delaware and (ii) a foreign qualification certificate (or its equivalent) for the Company and each of the Subsidiaries from the secretary of state or similar Governmental Authority of each jurisdiction in which the Company has qualified, or is required to qualify, to do business as a foreign corporation.
(e) The Company shall have delivered, or caused to be delivered, to Purchaser each of the following, each in form and substance satisfactory to Purchaser:
(i) a certificate executed as evidence of the Closing Date Shares credited to book-entry accounts maintained by a duly authorized representative of Sellersthe Transfer Agent, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that bearing the conditions legend or restrictive notation set forth in Section 7.2(a) 4.05 of this Agreement, free and Section 7.2(b) have been satisfiedclear of all Encumbrances, other than transfer restrictions under the Transaction Documents, the Bylaws and applicable federal and state securities laws;
(ii) an opinion of legal counsel to the Equity Registration Rights AgreementCompany, duly executed by Parent;dated as of the Closing Date, satisfactory to Purchaser; and
(iii) stock certificates such other documents or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited instruments as Purchaser reasonably requests and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are reasonably necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of consummate the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval OrderAgreement.
(f) The Canadian Operations Continuation Agreement Company shall have fully complied with, or obtained appropriate consents or waivers with respect to, its obligations under each of the agreements or other documents identified on Section 3.02(c) of the Disclosure Schedules, including with respect to any outstanding rights of first refusal, rights of first offer, pre-emptive rights or anti-dilution rights or redemption or repurchase rights.
(g) The NASDAQ shall have authorized, upon official notice of issuance, the listing of the Shares.
(h) No notice of delisting from the NASDAQ shall have been executed and delivered received by the parties thereto Company with respect to the Shares.
(i) The Shares shall not have been suspended by the SEC or the NASDAQ from trading on the NASDAQ nor shall suspension by the SEC or the NASDAQ have been threatened in writing by the form previously distributed among themSEC or the NASDAQ.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations obligation of -------------------------------------- Purchaser to consummate purchase the transactions contemplated by this Agreement are Shares shall be subject to the fulfillment satisfaction or written waiver, prior to or at the Closing, of each waiver of the following conditions; provided, however, that in no event may Purchaser waive conditions on or prior to the conditions contained in Section 7.2(d) or Section 7.2(e):Closing Date:
(a) Each Seller shall have performed and satisfied in all material respects its obligations hereunder required to be performed or satisfied by it on or prior to the Closing Date. Purchaser shall have received a certificate signed by a duly authorized executive officer of Seller to the representations foregoing effect and warranties of Sellers contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for to the purposes effect that, to the knowledge of such determination any qualification as to materiality or Material Adverse Effect) as of executive officer, the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, foregoing conditions have not had, or would not reasonably be expected to have, a Material Adverse Effectbeen satisfied.
(b) Sellers The representations and warranties of Seller contained in this Agreement shall have performed or complied be true, complete and accurate in all material respects with all agreements at and obligations required as of the Closing Date, as if made at and as of the Closing Date. Purchaser shall have received a certificate signed by this Agreement a duly authorized executive officer of Seller to be performed or complied with by Sellers prior the foregoing effect and to or at the Closingeffect that, to the knowledge of such executive officer, the foregoing condition has been satisfied.
(c) Sellers Seller shall have delivered, delivered for sale to Purchaser on or caused prior to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) those stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held and any necessary stock transfer instruments) representing all Shares to be sold by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer Seller to Purchaser of title pursuant to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)Article I hereof.
(d) The UAW Collective Bargaining Agreement shall have been ratified All actions taken by Newco with respect to the membershipperformance of its obligations, the enforcement or waiver of its rights under the Asset Purchase Agreement, including without limitation, the terms and conditions of all financing transactions entered into in connection with such transactions, shall have been assumed by be satisfactory to the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are hereby shall be subject to the fulfillment on or written waiver, prior to or at the Closing, of each Closing Date of the following additional conditions; provided, however, that except as Purchaser may waive in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):writing:
(a) Each Seller and any Affiliate of Seller shall have complied with and performed in all material respects all of the terms, covenants, agreements and conditions contained in this Agreement which are required to be complied with and performed by Seller or such Affiliate on or prior to the Closing Date;
(b) the representations and warranties of Sellers contained Seller and any Affiliate of Seller in ARTICLE IV of this Agreement Agreement, if qualified by reference to a Material Adverse Effect, shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date as in all respects and, if made on the Closing Date (except for representations and warranties that speak as of a specific date or timenot so qualified, which representations and warranties shall be true and correct only except in such respects as, in the aggregate, do not have a Material Adverse Effect with respect to the Assets on and as of the Closing Date, with the same force and effect as though such date or time)representations and warranties had been made on and as of the Closing Date, except (i) to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not hadwarranties expressly related to an earlier date, or would not reasonably be expected to have, a Material Adverse Effect.
(bii) Sellers shall have performed or complied in all material respects with all agreements and obligations required as contemplated by this Agreement to be performed or complied with by Sellers prior to or at the Closing.Agreement;
(c) Sellers Purchaser shall have delivered, or caused to be deliveredcompleted, to Purchaserits reasonable satisfaction, the inspection of the Assets as provided for in Section 5.04(c) above; and
(d) Purchaser shall have received each of the following, dated the Closing Date or, with respect to certificates of Governmental Authorities, dated within ten Business Days prior to the Closing Date:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of DelawareDelaware as to the existence and good standing of Seller and certificates of the Secretary of State of the State of Washington as to the authority of Seller to transact business in the State of Washington;
(xxiiii) their written agreement a certificate of incumbency certified by the Secretary or an Assistant Secretary of Seller certifying the names of the officers of Seller authorized to treat the Relevant Transactions and the other transactions contemplated by execute this Agreement in accordance (including the certificates contemplated herein) together with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders specimen signatures of the secured Indebtednesssuch officers; and
(xxiviii) all books and records a certificate of Sellers described Seller signed on Seller’s behalf by the Chairman of the Board, Chief Executive Officer, President, Treasurer or a Vice President of Seller, certifying as to the fulfillment of the conditions specified in Section 2.2(a)(xiv6.03(a) and Section 6.03(b).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement hereby are subject to the fulfillment or written waiver, prior to or at the Closing, of each Closing of the following conditions; provided, however, that unless waived by Purchaser in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):writing:
(a) All of the covenants and obligations that Seller is required to perform or to comply with pursuant to this Agreement at or prior to the Closing shall have been duly performed and complied with in all material respects.
(b) Each of the Seller’s representations and warranties of Sellers contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for as of the purposes date of such determination any qualification as to materiality or Material Adverse Effect) this Agreement and as of the Closing Date as if made on the Closing Date (except for representations and warranties as to any representation or warranty that speak as specifically relates to an earlier date), provided that no breaches of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except deemed to excuse Purchaser’s obligations to consummate the extent that any breaches of such representations and warrantiestransactions contemplated hereby unless, individually or in the aggregate, have not had, or such breaches would not reasonably be expected to have, result in a Seller Material Adverse Effect.
Effect (b) Sellers shall have performed ignoring, for this purpose, any materiality or complied in all material respects with all agreements adverse effect qualifications to such representations and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closingwarranties).
(c) Sellers Purchaser shall have delivered, or caused to be delivered, to Purchaser:
(i) received a certificate executed as of the Closing Date signed by a duly authorized representative elected officer of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying Seller to the effect that the foregoing conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;.
(iid) the Equity Registration Rights Agreement, duly executed by Parent;All Consents identified on Schedule 7.2(d) hereto shall have been obtained.
(iiie) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests Seller shall have delivered to Purchaser: (other than in respect a) a copy of the Equity Interests held by Sellers resolutions (in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited form and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form substance reasonably satisfactory to the Parties and Purchaser) duly executed adopted by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, Seller authorizing the execution, delivery and performance of this the Agreement by Seller, certified by the Secretary or an Assistant Secretary of Seller and the Ancillary Agreements to which such Seller is a party, the consummation (b) certificates of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying Secretary or an Assistant Secretary as to the incumbency and signatures of the officer(s) officers of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval OrderAgreement.
(f) The Canadian Operations Continuation Agreement Purchaser shall have been executed and delivered by received the parties thereto closing deliveries listed in the form previously distributed among themSection 2.5(a) hereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (Financial Industries Corp)
Conditions to Obligations of Purchaser. The obligations Unless waived by Purchaser, the obligation of Purchaser to consummate close the transactions contemplated by this Agreement are herein shall be subject to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive additional conditions on or prior to the conditions contained in Section 7.2(d) or Section 7.2(e):Closing Date:
(a) Each the Sellers and the Companies shall have performed in all material respects (or in all respects in the case of any agreement containing any materiality qualification) their agreements contained in this Agreement required to be performed on or prior to the Closing Date;
(b) the representations and warranties of the Sellers contained in ARTICLE IV of this Agreement shall be true and correct in all material respects (disregarding for or in all respects in the purposes case of such determination any qualification representation or warranty containing any materiality qualification) on and as to materiality or Material Adverse Effect) of the date made and on and as of the Closing Date as if made on the Closing Date (except for representations at and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date;
(c) since the date hereof, there shall have been no changes that constitute, and no event or time), except to the extent that any breaches of such representations and warranties, individually events shall have occurred which have resulted in or in the aggregate, have not had, or would not reasonably be expected to haveconstitute, a Material Adverse Effect.;
(bd) the Purchaser shall have obtained financing in an amount and pursuant to terms satisfactory to Purchaser to consummate the transactions contemplated in this Agreement;
(e) Purchaser shall have received legal opinions from legal counsel to the Sellers, dated the Closing Date, in a form reasonable satisfactory to Purchaser, and as described in Section 3.5(a);
(f) the Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have deliveredexecuted Release of Claims Agreements, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate SellerC;
(vg) an omnibus assignment and assumption agreementMr. Xxxxxxx, substantially xxdividually, shall have entered into a Consulting Agreement, in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate SellerD;
(vih) a novation agreementMr. Xxxxxxx, substantially xxdividually, and the Grat shall have entered into Covenant Not to Compete Agreements, in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental AuthoritiesE;
(viii) a government related subcontract agreementthe Estate, substantially Mrs. Xxxxxxxx, xxe Trust and the Trucking Company shall have entered into Covenant Not to Compete Agreements, in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by SellersF;
(viiij) an omnibus intellectual property assignment agreement, substantially Purchaser shall have received certificates representing the certificated Ownership Interests duly endorsed for transfer as described in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”Section 3.5(a)(i), duly executed by Sellers;
(ixk) Purchaser shall have received a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly certificate executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside each of the United States), in customary form, subject only Sellers with respect to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xia) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2b) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtednessabove; and
(xxivl) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement Purchaser shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effectentered into employment agreements with Mark XxXxxxxxx xxx Terrx Xxxxxxxxx.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Synagro Technologies Inc)
Conditions to Obligations of Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are is subject to the fulfillment satisfaction at or written waiver, prior to or at the Closing, Closing of each and every one of the following conditions; providedconditions precedent, however, that in no event any or all of which may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):be waived by Purchaser:
(a) Each of the The representations and warranties of Sellers contained Seller set forth in ARTICLE IV of this Agreement Article III shall be true and correct (disregarding for in all material respects on and as of the purposes date of such determination any qualification as to materiality or Material Adverse Effect) this Agreement and as of the Closing Date with the same force and effect as if though made on and as of the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time)Date, except to the extent that any breaches representation and warranty is limited by its terms to a specific date or range of dates (in which case such representations representation and warranties, individually warranty need only be true and correct on the date or in during the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effectrange of dates so specified).
(b) Sellers Seller shall have performed or and complied in all material respects with all of the agreements and obligations covenants required by under this Agreement to be performed or complied with by Sellers it prior to or at the Closing.
(c) Sellers Since the date of this Agreement, there shall have deliveredbeen no event, change or occurrence which individually or together with any other event, change or occurrence, that has caused to be delivered, to Purchaser:a Material Adverse Change.
(id) Seller shall have delivered to Purchaser a certificate certificate, executed as of the Closing Date by a duly authorized representative officer of Sellers, on behalf of Sellers and not Seller in such authorized representative’s individual capacityhis or her capacity as such, certifying that the conditions set forth specified in Section 7.2(aSections 6.1(a) and Section 7.2(b6.1(b) have been satisfied;fulfilled.
(iie) the Equity Registration Rights AgreementThere shall not be in force any order, duly executed judgment, injunction, stipulation, award or decree by Parent;
(iii) stock certificates or membership interest certificatesbefore any Governmental Entity of competent jurisdiction restraining, if anyenjoining, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHIprohibiting, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank invalidating or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, preventing the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e)hereby, and (B) certifying as to no action, suit, claim or proceeding shall have been instituted or threatened or claim or demand made against Purchaser, Seller, the incumbency Company or any of its Subsidiaries seeking any of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)foregoing.
(df) The UAW Collective Bargaining Agreement relevant parties to each of the Transaction Documents (other than Purchaser) shall have been ratified entered into such Transaction Documents and (but for execution and/or delivery of such Transaction Documents by the membershipPurchaser), shall have been assumed by the applicable Sellers and assigned to Purchaser, and such Transaction Documents shall be in full force and effect.
(eg) The UAW Retiree Settlement Agreement Seller shall have been delivered to Purchaser, free and clear of any Lien, all certificates representing the Shares, endorsed in blank or accompanied by duly executed and delivered by assignment documents together with the UAW and shall have been approved by certificates representing the Bankruptcy Court as part shares of each Subsidiary of the Sale Approval OrderCompany (to the extent such shares are certificated).
(fh) The Canadian Operations Continuation Agreement Seller shall have been executed and delivered to Purchaser all other closing items to be delivered by Seller under Article VII.
(i) Purchaser shall have received the parties thereto in the form previously distributed among themFinancing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Willbros Group, Inc.\NEW\)
Conditions to Obligations of Purchaser. The obligations of Purchaser to consummate effect the transactions contemplated by this Agreement are further subject to the fulfillment satisfaction or written waiver, waiver at or prior to or at the Closing, of each Closing of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each of the representations and warranties of Sellers contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for in all respects as of the purposes of such determination any qualification as to materiality or Material Adverse Effect) date hereof and at and as of the Closing Date with the same effect as if though such representations and warranties had been made on the Closing Date (except for at and as of such time, other than representations and warranties that speak as of a specific date or time, time (which representations and warranties shall need only be true and correct only in all respects as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.;
(b) Sellers and the Company shall have performed or and complied in all material respects with all agreements each agreement, covenant and obligations obligation required by this Agreement to be performed or complied with by either Sellers or the Company under this Agreement at or prior to or at the Closing.;
(c) Sellers From December 31, 1995, the Company shall not have suffered a Material Adverse Effect;
(d) Purchaser shall have deliveredreceived certificates, or caused to be delivereddated the Closing Date, to Purchaser:
from (i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights AgreementCompany, duly executed by Parent;
(iii) stock certificates the Chief Executive Officer or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect Chief Financial Officer of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited Company and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35)(ii) each Seller, duly endorsed in blank or accompanied executed by stock powers (or similar documentation) duly endorsed in blankeach Seller, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of saleeach case, substantially in the form attached hereto as Exhibit P Exhibits D and E, respectively;
(e) All authorizations, Permits, consents, orders or approvals of, or declarations or filings with, or expirations or terminations of waiting periods (including the “Xxxx of Sale”)waiting period under the HSR Act) imposed by any Governmental Entity, together with transfer tax declarations and all third party consents (collectively, the "Authorizations") necessary to effect the transactions contemplated by this Agreement, shall have occurred, been filed or been obtained and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased AssetsAuthorizations ("Other Authorizations") shall have occurred, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Sellerbeen filed or been obtained;
(vf) an omnibus assignment Notwithstanding the satisfaction of paragraph (a) of this Section 5.1, and assumption agreementdisregarding all materiality, substantially in dollar limit or similar qualifications with respect to all representations and warranties for purposes of this condition, the form attached hereto as Exhibit Q (aggregate breaches of the “Assignment representations and Assumption Agreement”), together with all other instruments warranties of assignment Seller shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on Purchaser's ability to own and assumption that are necessary to transfer operate the Purchased Contracts Company's assets and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to properties or materially detract from the Parties and duly executed by value of the appropriate SellerCompany's assets;
(vig) a novation agreementThe distributions, substantially loans and accounts receivable referred to in Section 2.27 shall have been repaid to the form attached hereto Company in accordance with Section 4.8 and all affiliate arrangements listed in Section 2.27(a) of the Disclosure Schedule shall have been terminated without continuing liability or obligation on the part of the Company or Purchaser, as Exhibit R (successor to the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental AuthoritiesCompany in accordance with Section 4.9;
(viih) a government related subcontract agreementPurchaser shall have obtained all Governmental Permits (whether by transfer, substantially reissuance, modification or otherwise) required to be obtained by it in connection with or for the form attached hereto operation of the Business of the Company as Exhibit S (the “Government Related Subcontract presently conducted and contemplated in this Agreement”), duly executed by Sellers;
(viiii) an omnibus intellectual property assignment agreement, substantially Sellers shall have delivered or caused to be delivered to Purchaser each of the items specified in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by SellersSection 1.5;
(ixj) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease There shall not be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date any Order or Law restraining, enjoining or otherwise prohibiting or making illegal the consummation of any of the transactions contemplated in this Agreement or any of the Operative Agreements or which could reasonably be expected to otherwise result in a material diminution of the benefits to Purchaser of the transactions contemplated in this Agreement or any of the Operative Agreements, and there shall not be pending or threatened on the Closing Date any Proceeding or any other action in, before or by any Governmental Entity which could reasonably be expected to result in the issuance of any such Order or the enactment, promulgation or deemed applicability to Purchaser, the Company, or any transaction contemplated in this Agreement or any of the Operative Agreements of any such Law;
(k) Sellers shall have delivered or caused to be delivered to Purchaser the Month-End Balance Sheet and the Estimated Closing Date Balance Sheet, the related financial statements and the certificate of the Company's Chief Financial Officer referred to in Section 4.12, and such certificate shall state that, as of the dates of each of the Month-End Balance Sheet and the Estimated Closing Date Balance Sheet: (i) the Adjusted Net Working Capital is at least $3.3 million, (ii) there is no Indebtedness of the Company then outstanding (including premiums and penalties upon prepayment or other termination of such Indebtedness and any negative cash balance) and (2iii) resolutions the Net Worth is at least $4.8 million. Such certificate shall also certify that the EBITDA of the board Company (x) for the year ended December 31, 1995 was not less than $3.7 million, (y) for the six months ended June 30, 1996 was not less than $1.28 million, and (z) for the eight months ended August 31, 1996 was not less than $2.15 million;
(l) Neither consummation of directors the purchase of such Seller, authorizing the execution, delivery and performance of Shares nor the other transactions contemplated in this Agreement or any of the Operative Agreements nor Purchaser's ownership of the Company shall (i) prevent, impede or restrict Purchaser or the Company from fully and freely providing continued and uninterrupted performance under and otherwise fulfilling all obligations under, and receiving the Ancillary Agreements benefits of, any Contracts to which such Seller the Company is a party, (ii) impair, interfere with or terminate the Company's business relationship with the customers listed in Section 2.26 of the Disclosure Schedule or suppliers listed in Section 2.26 of the Disclosure Schedule;
(m) Purchaser shall have completed its due diligence with respect to environmental matters and shall be satisfied with the results of such environmental assessments and other environmental due diligence;
(n) Purchaser shall have received satisfactory assurances that the customer listed as number 1 in Section 2.26 of the Disclosure Schedule will continue as a customer following the Closing Date on the same or better terms as exist on the date hereof; and
(o) Purchaser shall have received the consent of the banks under the Restated Credit Agreement, dated as of March 19, 1996, among Big Flower Press Holdings, Inc., Treasure Chest Advertising Company, Inc. and the financial institutions named therein, to the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv)Agreement.
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
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Samples: Stock Purchase Agreement (Big Flower Press Holdings Inc)
Conditions to Obligations of Purchaser. The obligations obligation of the Purchaser to consummate effect the transactions contemplated by this Agreement are shall be subject to the fulfillment at or written waiver, prior to or at the Closing, of each Closing Date of the following additional conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e)::
(a) Each Purchaser shall have received a Phase I/Phase II environmental report that will indicate that the real property on which the Colorado Facility is located is free from soil, surface water and groundwater contamination, hazardous wastes and other environmental defects or is otherwise satisfactory to Purchaser, in its reasonable discretion;
(b) Seller shall have performed and complied with, in all material respects, the covenants and agreements contained in this Agreement that are required to be performed and complied with by it on or prior to the Closing Date;
(c) All of the representations or warranties of Seller set forth in this Agreement or in any written statement or certificate that shall be delivered to Purchaser by Seller under this Agreement that are qualified by materiality or Material Adverse Effect shall be true and correct, and the representations and warranties of Sellers contained the Seller set forth in ARTICLE IV of this the Agreement that are not so qualified shall be true and correct (disregarding for in all material respects, in each case, as of the purposes date of such determination any qualification as to materiality or Material Adverse Effect) this Agreement and as of the Closing Date as if made on the Closing Date (except for to the extent such representations and warranties that speak as of a specific date or timeas of the date hereof, in which case such representations and warranties shall be true and correct only or true and correct in all material respects, as the case may be, as of such specific date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the date hereof, respectively);
(d) Seller shall have obtained at or prior to the Closing Date all consents required to be obtained by it pursuant to this Agreement from any party to any Seller Contract to which it is a duly party or to which any Purchased Asset is subject;
(e) The Purchaser shall have received a certificate from an authorized representative officer of SellersSeller, on behalf of Sellers and not in such authorized representative’s individual capacitydated the Closing Date, certifying that to the effect that, the conditions set forth in this Section 7.2(a) and Section 7.2(b) 8.2 have been satisfied;
(iif) the Equity Registration Rights Agreement, duly executed by ParentThe Purchaser shall have received acceptances of its offers of employment to all persons to whom it offered employment;
(iiig) stock certificates or membership interest certificates, if any, evidencing The Purchaser shall have received an executed assignment and assumption with respect to the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially Real Estate Lease in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate SellerC;
(vh) an omnibus assignment The Purchaser shall have entered into a lease with GE Capital, on such terms and assumption agreement, substantially in conditions as are reasonably acceptable to the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory for those Purchased Assets that were subject to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating GE Capital Lease immediately prior to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured IndebtednessClosing; and
(xxivi) Purchaser shall have received all books and records of Sellers described the deliverables identified in Section 2.2(a)(xiv)4.2.
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
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