Conditions to Obligations of Sellers The obligations of Sellers 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 Sellers waive the conditions contained in Section 7.3(h) or Section 7.3(i):
(a) Each of the representations and warranties of Purchaser contained in ARTICLE V of this Agreement shall be true and correct (disregarding for the purpose of such determination any qualification as to materiality or Purchaser Material Adverse Effect) as of the Closing Date as if made on such 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 Purchaser Material Adverse Effect.
(b) 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 it prior to or at the Closing.
(c) Purchaser shall have delivered, or caused to be delivered, to Sellers:
(i) Parent Warrant A (including the related warrant agreement), duly executed by Purchaser;
(ii) Parent Warrant B (including the related warrant agreement), duly executed by Purchaser;
(iii) a certificate executed as of the Closing Date by a duly authorized representative of Purchaser, on behalf of Purchaser and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.3(a) and Section 7.3(b) are satisfied;
(iv) stock certificates evidencing the Parent Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank, in proper form for transfer, including any required stamps affixed thereto;
(v) the Equity Registration Rights Agreement, duly executed by Purchaser;
Conditions to Obligations of Seller The obligations of Seller to consummate the transactions contemplated by this Agreement shall be subject to fulfillment at or prior to the Closing of the following conditions (any one or more of which may be waived in whole or in part by Seller):
Conditions to Obligations of Buyer and Seller The obligations of Buyer and Seller to complete the transactions contemplated by this Agreement are subject to the satisfaction at or prior to the Closing of the following conditions:
Conditions Precedent to Obligations of Sellers The obligations of Sellers to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or waiver by Sellers’ Representative in writing) of the following conditions as of the Closing Date:
Conditions to the Obligations of Sellers The obligation of Sellers to effect the Closing is subject to the satisfaction (or waiver) prior to the Closing of the following conditions:
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER The obligation of Seller to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the Closing Date hereunder, of each of the following conditions, all or any of which may be waived, in whole or in part, by Seller.
Conditions to the Obligations of Seller The obligations of Seller to consummate the transactions contemplated hereby to occur at the Closing are subject to the satisfaction of each of the following conditions, unless waived in whole or in part in writing by Seller:
(a) The representations and warranties of Purchaser set forth in this agreement must be true and correct in all material respects (provided that any representation or warranty contained herein that is qualified by a materiality or material adverse effect qualification shall not be so qualified for purposes of determining the existence of any breach thereof by Purchaser) as of the date of this agreement and as of the Closing Date as though made on and as of the Closing Date (except for any representation or warranty that is limited to an earlier date, in which case such representation or warranty shall have been true and correct only as of such earlier date);
(b) Purchaser must have performed in all material respects all obligations under its covenants and agreements required by this agreement to be performed by Purchaser on or before the Closing Date;
(c) Purchaser must have delivered to Seller a certificate, dated the Closing Date and signed by an authorized representative of Purchaser, as to the satisfaction of the conditions in the foregoing subsections;
(d) Purchaser must have delivered to Seller or other specified persons the documents, instruments, certificates and other items required to be delivered by Purchaser pursuant to section 5.2;
(e) There must not be in effect any temporary restraining order, preliminary or permanent injunction, stay or other order issued by any Governmental Authority preventing the consummation of the transactions contemplated hereby to occur at the Closing must be in effect; and
(f) No law must have been enacted, issued, enforced, entered, or promulgated that prohibits or makes illegal the consummation of the transactions contemplated hereby.
Additional Conditions to Obligations of Seller The obligation of Seller to effect the Merger is subject to the satisfaction of each of the following conditions, any of which may be waived, in writing, exclusively by Seller:
Conditions to Obligation of Sellers The obligation of Sellers to consummate the transactions to be performed by them in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties of Buyer herein contained shall have been true and correct in all material respects when made and, in addition, shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date, except as affected by transactions contemplated hereby;
(ii) Buyer shall have in all material respects performed all obligations and agreements and complied in all material respects with all their covenants and conditions contained in this Agreement to be performed and complied with by them on or prior to the Closing Date;
(iii) no action or proceeding before any court or governmental agency shall have been instituted or threatened which would enjoin, restrain or prohibit (or seeks substantial damages as a result of or in connection with) the transactions contemplated by this Agreement and which would in the reasonable judgment of Sellers make it inadvisable to consummate such transactions, and no court order shall have been entered in any action or proceeding instituted by any other Person which enjoins, restrains or prohibits the consummation of the transactions contemplated by this Agreement;
(iv) Buyer shall have executed and delivered the Buyer Notes;
(v) Sellers shall have received from counsel to Buyer an opinion in form and substance as set forth in Exhibit C attached hereto, addressed to Sellers, and dated as of the Closing Date;
(vi) Sellers shall have received from Buyer a certificate of the president and secretary of Buyer, dated as of the Closing Date, certifying that the closing conditions set forth in Sections 7(b)(i), (ii), (iv), (v) and (vii) are satisfied; and
(vii) all other documents required to be delivered by Buyer under this Agreement at or prior to the Closing Date shall be delivered or shall be tendered by the Closing Date. Sellers may waive any condition specified in this Section 7(b).
Conditions to Obligations of the Purchasers The obligations of the Purchasers to consummate the Purchase shall be subject to the fulfillment on or prior to the Closing of each of the following conditions:
(a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing;
(b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice.
(c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) and the Company shall have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c);
(d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”).
(e) The Company in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at Closing;
(f) The Purchasers and the Company shall have executed a registration rights agreement substantially in the form attached hereto as Exhibit A;
(g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”);
(h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and
(i) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceability.
