Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or waiver, at or prior to the Closing, of each of the following conditions: 7.3.1. the representations and warranties of Sellers contained in Section 3 shall be true and correct in all material respects as of the date hereof and as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect; 7.3.2. the covenants and obligations contained in this Agreement to be complied with by Sellers on or before the Closing (including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) shall have been complied with in all material respects; 7.3.3. there shall be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect the right of the Sellers to sell, transfer or assign to the Purchaser, or the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (USDATA Liquidating Trust), Asset Purchase Agreement (Tecnomatix Technologies LTD)
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Purchaser’s waiver, at or prior to before the ClosingClosing Date, of each of the following conditions:
7.3.1. the (a) The representations and warranties of Sellers contained the Vendor set out in Section 3 5.1 and any certificate or other writing delivered pursuant hereto shall be true and correct (in the case of representations and warranties qualified as to materiality) or true and correct in all material respects (in the case of other representations and warranties) on and as of the date hereof and as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be disregarded if determined as of that specified date in all such inaccuraciesrespects) and except for those failures to be so true and correct as would not reasonably be expected to have, considered collectivelyindividually or in the aggregate, do not constitute a Material Adverse Effect on the ability of the Vendor and the Purchaser to consummate the transactions contemplated by this Agreement;
(it being understood that any materiality qualification contained in such representations and warranties b) The Vendor shall be disregarded for this purpose). The foregoing shall not be in limitation have vacated or discharged all of the construction liens on the title of any rights of the M2M Project Phase 1 Properties no later than the Closing Date, and remediesthere is no construction lien registered on title of any of the M2M Project Phase 1 Properties on the Closing Date; and
(c) All the terms, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained agreements set forth in this Agreement to be complied with or performed by Sellers the Vendor on or before the Closing (including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) Date shall have been complied with or performed by such Parties in all material respects;
7.3.3. there shall be no action, suit, proceeding or investigation by respects on or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect the right of the Sellers to sell, transfer or assign to the Purchaser, or the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoingClosing Date.
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Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be are subject to the satisfaction or fulfillment or waiver, at or prior to the Closing, of each Closing of the following conditions, any of which may be waived in whole or in part by the Purchaser in writing:
7.3.1. the (a) All representations and warranties of Sellers the Seller contained in Section 3 this Agreement shall be true and correct in all material respects at and as of the Closing with the same effect as though such representations and warranties were made at and as of the Closing (other than any representation or warranty that is expressly made as of a specified date, which shall be true and correct in all material respects as of such specified date only).
(b) The Seller and the date hereof Company shall have performed and as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies complied in such representations and warranties as of the Closing Date shall be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have material respects with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. all the covenants and obligations contained in agreements required by this Agreement to be performed or complied with by Sellers on it at or before prior to the Closing Closing.
(including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummatedc) shall have been complied with in all material respects;
7.3.3. there There shall be in effect no action, suit, proceeding Law or investigation injunction issued by a court of competent jurisdiction making illegal or before any court, administrative agency otherwise prohibiting or other Governmental Authority, to restrain, prohibit or invalidate restraining the consummation of the transactions contemplated by this Agreement, or which may affect .
(d) The Seller shall have delivered to the right Purchaser all of the Sellers certificates. instruments and other documents required to sellbe delivered by the Seller at or prior to the Closing pursuant to Section 2.3(b) and Sections 6.15 through 6.21 hereof.
(e) All consents from Governmental Authorities and other parties necessary to the consummation of the transactions contemplated hereby and by the Ancillary Agreements and for the operation of the Business after the Closing, transfer or assign including those consents set forth on Schedule 4.4 and Schedule 4.5 of this Agreement, shall have been obtained and copies of such consents shall have been delivered to the Purchaser.
(f) There shall not have been any event, condition, development or change since the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the ClosingLatest Balance Sheet Date, which has not been initiated by the Purchaser had, or its Affiliateswould reasonably be expected to have, family members, representatives a Material Adverse Effect or any party acting has resulted or could reasonably be expected to result in concert with any of the foregoinga Material Adverse Change.
Appears in 2 contracts
Samples: Share Purchase Agreement (GateHouse Media, Inc.), Share Purchase Agreement (Surewest Communications)
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Purchaser’s waiver, at or prior to the Closing, of each of the following conditions:
7.3.1. the representations (a) Representations and warranties of Sellers Seller contained in Section 3 this Agreement, the Related Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all material respects on and as of the date hereof and as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all with the same effect as though made at and as of such inaccuracies, considered collectively, do not constitute a Material Adverse Effect date (it being understood that any materiality qualification contained in such except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be disregarded for this purposedetermined as of that specified date in all respects). The foregoing .
(b) Seller shall not be have duly performed and complied in limitation of any rights all material respects with all agreements and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in required by this Agreement and each of the Related Documents to be performed or complied with by Sellers it prior to or on or before the Closing Date.
(including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummatedc) No Proceeding shall have been complied with in all material respects;
7.3.3commenced against Purchaser or Seller, which would prevent the Closing. there No injunction or restraining order shall be no action, suit, proceeding or investigation have been issued by or before any court, administrative agency or other Governmental Authority, to restrainand be in effect, prohibit which restrains or invalidate prohibits any transaction contemplated hereby.
(d) There shall not have occurred any event that resulted in a material adverse effect on the transactions contemplated by this AgreementBusiness or the Acquired Assets, or which may affect that could reasonably be expected to have, individually or in the right of aggregate, a material adverse effect on the Sellers Business or the Acquired Assets.
(e) The Purchaser shall have received financing, on terms acceptable to sellPurchaser in its sole discretion, transfer or assign that is sufficient to fund the Closing Payment and all other Purchaser transaction expenses related to the negotiation, execution and closing of this Agreement (as determined by Purchaser, or ).
(f) Seller shall have delivered to Purchaser the right of the Purchaser to purchase documents and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting other deliveries set forth in concert with any of the foregoingSection 3.02.
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Conditions to Obligations of the Purchaser. The obligations obligation of the Purchaser to consummate the transactions contemplated by this Agreement shall be Closing is subject to the fulfillment satisfaction (or waiver, the waiver by the Purchaser in its sole and absolute discretion) of the following further conditions:
(i) (A) the Seller shall have performed in all material respects all of its covenants and obligations under this Agreement that are required to be performed by it at or prior to the Closing, of each of the following conditions:
7.3.1. ; (B) the representations and warranties of Sellers contained the Seller set forth in Section 3 Article 4 that are qualified by materiality or Material Adverse Effect shall be true and correct and so qualified in all respects as of the Closing Date, except to the extent expressly made as of a specified date, in which case such representations and warranties shall be true and correct as of such date; (C) the representations and warranties of the Seller set forth in Article 4 that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects as of the date hereof and Closing Date, except to the extent expressly made as of the Closing as though restated on and as of such a specified date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in which case such representations and warranties shall be disregarded for this purpose). The true and correct as of such date; and (D) the Purchaser shall have received a certificate signed by an officer of the Seller to the foregoing effect;
(ii) there shall not be in limitation effect a final, non-appealable order or decree entered by a Governmental Authority that permanently enjoins, restrains, or otherwise prohibits the consummation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse EffectContemplated Transactions;
7.3.2. (iii) the covenants and obligations contained in this Seller shall have obtained the written consent of Altair to assign the Altair Agreement to be complied with by Sellers Purchaser; and
(iv) the Seller shall have executed and delivered to the Purchaser, on or before the Closing (includingDate, without limitation, all obligations which Sellers would be the Transaction Documents that are required to perform at the Closing if the transactions contemplated hereby were consummated) shall have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect the right of the Sellers to sell, transfer or assign to the Purchaser, or the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated executed by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoingSeller.
Appears in 1 contract
Samples: Assignment and Asset Purchase Agreement (Unicycive Therapeutics, Inc.)
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be are subject to the satisfaction or fulfillment or waiver, at or prior to the Closing, of each Closing of the following conditions, any of which may be waived in whole or in part by the Purchaser in writing:
7.3.1. the (a) All representations and warranties of Sellers each Seller contained in Section 3 this Agreement shall be true and correct in all material respects at and as of the Closing with the same effect as though such representations and warranties were made at and as of the Closing (other than any representation or warranty that is expressly made as of a specified date, which shall be true and correct in all material respects as of the such specified date hereof only).
(b) Each Seller shall have performed and as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies complied in such representations and warranties as of the Closing Date shall be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have material respects with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. all the covenants and obligations contained in agreements required by this Agreement to be performed or complied with by Sellers on it at or before prior to the Closing Closing.
(including, without limitation, all obligations which Sellers would be required to perform at c) All applicable waiting periods (and any extensions thereof) under the Closing if the transactions contemplated hereby were consummated) HSR Act shall have expired or otherwise been complied with in all material respects;terminated.
7.3.3. there (d) There shall be in effect no action, suit, proceeding Law or investigation injunction issued by a court of competent jurisdiction making illegal or before any court, administrative agency otherwise prohibiting or other Governmental Authority, to restrain, prohibit or invalidate restraining the consummation of the transactions contemplated by this Agreement, or which may affect .
(e) Each Seller shall have delivered to the right Purchaser all of the Sellers certificates, instruments and other documents required to sell, transfer be delivered by it at or assign prior to the Purchaser, or Closing pursuant to Section 3.2 hereof.
(f) The Escrow Agent and the right of Sellers shall have executed and delivered the Escrow Agreement.
(g) The New York Times Company shall have executed and delivered to the Purchaser a letter agreement undertaking to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated be bound by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any same restrictions as are imposed on the Sellers pursuant to Section 6.13 of the foregoingthis Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Transwestern Holdings Lp)
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be are subject to the satisfaction or fulfillment or waiver, at or prior to the Closing, of each Closing of the following conditions, any of which may be waived in whole or in part by the Purchaser in writing:
7.3.1. the (a) All representations and warranties of Sellers the Seller contained in Section 3 this Agreement that are not qualified as to materiality shall be true and correct in all material respects at and as of the Closing, and all representations and warranties of the Seller that are so qualified as to materiality shall be true and correct in all respects at and as of the Closing, in each case with the same effect as though such representations and warranties were made at and as of the Closing (other than any representation or warranty that is expressly made as of a specified date, which shall be true and correct in all material respects as of the such specified date hereof and only, provided that any representation or warranty that is expressly made as of the Closing a specified date that is qualified as though restated on to materiality shall be true and correct in all respects as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies specified date only).
(b) The Seller shall have performed and complied in such representations and warranties as of the Closing Date shall be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have material respects with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. all the covenants and obligations contained in agreements required by this Agreement to be performed or complied with by Sellers on it at or before prior to the Closing Closing.
(including, without limitation, all obligations which Sellers would be required to perform at c) All applicable waiting periods (and any extensions thereof) under the Closing if the transactions contemplated hereby were consummated) HSR Act shall have expired or otherwise been complied with in all material respects;terminated.
7.3.3. there (d) There shall be in effect no action, suit, proceeding Law or investigation injunction issued by a court of competent jurisdiction making illegal or before any court, administrative agency otherwise prohibiting or other Governmental Authority, to restrain, prohibit or invalidate restraining the consummation of the transactions contemplated by this Agreement, or which may affect .
(e) The Seller shall have delivered to the right Purchaser all of the Sellers certificates, instruments and other documents required to sell, transfer be delivered by the Seller at or assign prior to the Purchaser, or the right of the Purchaser Closing pursuant to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoingSection 3.2 hereof.
Appears in 1 contract
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or waiverfulfillment, at or prior to the Closing, of each of the following conditions, any of which may be waived in writing by the Purchaser in its sole discretion:
7.3.1. the (a) The representations and warranties of the Sellers contained in Section 3 this Agreement shall be true and correct in all material respects as of the date hereof and as of on the Closing Date with the same effect as though restated on such representations and warranties were made as of such date, provided that solely for except where the purpose failure of this Section 7.3.1 any inaccuracies in such representations and warranties as of to be true on the Closing Date shall would not, individually or in the aggregate, reasonably be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may expected to have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;.
7.3.2. (b) Each of the Sellers shall have performed all obligations and agreements and complied with all covenants and obligations contained in conditions required by this Agreement to be performed or complied with by Sellers on it prior to or before at the Closing (including, without limitation, all obligations other than the covenant set forth in Section 6.11 which Sellers would shall not be required a condition to perform at Closing).
(c) All of the Closing if the transactions contemplated hereby were consummatedConsents set forth on Schedule 8.3(c) shall have been complied with in all material respects;obtained.
7.3.3. there (d) The Sellers shall have delivered, or caused to be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authoritydelivered, to restrainthe Purchaser the documents listed in Section 9.2 hereof.
(e) The Sellers shall have delivered to the Purchaser the Union Agreement executed by the Union and EDC USA.
(f) The Sellers shall have delivered to the Purchaser a consent to assignment, prohibit or invalidate in the transactions contemplated form of Exhibit 8.3(f), executed by this Agreementeach of Sublandlord and Master Landlord.
(g) The Sellers shall have executed and delivered to the Purchaser the Security Documents, or which may affect the right of the Sellers to sell, transfer or assign in form and substance satisfactory to the Purchaser, or in accordance with Section 11.9.
(h) No Material Adverse Effect shall have occurred since the right date of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoingthis Agreement.
Appears in 1 contract
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be are subject to the satisfaction or fulfillment at or waiverprior to the Closing of the following conditions, any of which may be waived in whole or in part by the Purchaser in writing:
(a) all representations and warranties of the Seller contained in this Agreement shall be true and correct at and as of the Closing with the same effect as though such representations and warranties were made at and as of the Closing (other than any representation or warranty that is expressly made as of a specified date, which shall be true and correct as of such specified date only) except where the failure to be so true and correct, individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect.
(b) The Seller shall have performed and complied in all material respects with all the covenants and agreements required by this Agreement to be performed or complied by it at or prior to the Closing, of each of .
(c) All applicable waiting periods (and any extensions thereof) under the following conditions:HSR Act shall have expired or otherwise been terminated.
7.3.1. the representations and warranties of Sellers contained in Section 3 (d) There shall be true and correct in all material respects as effect no Law or injunction issued by a court of competent jurisdiction making illegal or otherwise prohibiting or restraining the date hereof and as consummation of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in this Agreement to be complied with by Sellers on or before the Closing (including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) shall have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect .
(e) The Seller shall have delivered to the right Purchaser all of the Sellers certificates, instruments and other documents required to sell, transfer be delivered by it at or assign prior to the PurchaserClosing pursuant to Section 3.2 hereof, or including the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not Required Consents.
(f) The NYT Board approval shall have been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoingobtained.
Appears in 1 contract
Conditions to Obligations of the Purchaser. The All obligations of the Purchaser to consummate hereunder are subject, at the transactions contemplated by this Agreement shall be subject option of Purchaser, to the fulfillment or waiver, of each of the following conditions at or prior to the Closing, of each of and the following conditionsCompany shall use its best efforts to cause such conditions to be fulfilled:
7.3.1. the (i) All representations and warranties of Sellers the Company contained herein or in Section 3 any Schedule or document delivered pursuant hereto shall be true and correct in all material respects when made and shall be deemed to have been made again at and as of the date hereof and as of the Closing as though restated on Date, and as of such dateshall then be true and correct in all material respects.
(ii) All covenants, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants agreements and obligations contained in required by the terms of this Agreement to be complied with performed by Sellers on the Company at or before the Closing (including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) shall have been complied with duly and properly performed in all material respects;.
7.3.3. (iii) Since the Balance Sheet Date, there shall not have occurred any material adverse change in the condition (financial or otherwise), business, properties or prospects of the Company or the Subsidiary or the Assets or the Subsidiary's assets.
(iv) On the Closing Date, the Agreed Upon Accounts Payables shall not exceed Two Million Five Hundred Thousand ($2,500,000) U.S. Dollars and there shall be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect the right of the Sellers to sell, transfer or assign material adverse change with respect to the Purchaser50 Historical Financial Statements, or the right business or affairs of the Company or the Subsidiary.
(v) All schedules required to be delivered to Purchaser at or prior to purchase the Closing and assumeall documents required to be delivered (and, as applicable, executed) at or prior to Closing, including but not limited to these documents described in Section 4(a) above, shall have been so delivered (and, as applicable, executed).
(vi) There shall be delivered to Purchaser a certificate executed by the Assets or any material portion thereofPresident and Secretary of each of the Company and the Subsidiary, at dated the date of the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any certifying that all of the foregoingconditions set forth in this Section 14(b) have been fulfilled.
(vii) There shall be no additional material liability of any nature whatsoever accruing to Purchaser with respect to this Agreement or the transaction contemplated hereby.
Appears in 1 contract
Samples: Agreement of Purchase and Sale of Assets (Projectavision Inc)
Conditions to Obligations of the Purchaser. The obligations obligation of the Purchaser to consummate the transactions contemplated by this Agreement shall be Closing is subject to the fulfillment satisfaction, or waiverthe waiver at the Purchaser’s sole and absolute discretion, of all the following further conditions:
(a) The Seller 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, Closing Date.
(b) All of each of the following conditions:
7.3.1. the representations and warranties of Sellers the Seller contained in Section 3 this Agreement and in any certificate delivered by the Seller pursuant hereto shall be true and correct in all material respects as of the date hereof at and as of the Closing Date as though restated on if made at and as of such date, except as would not, individually or in the aggregate, reasonably be expected to have a Company Xxxxx Xxxxxxxx Adverse Effect, and provided that solely for in each case in that to the purpose of this Section 7.3.1 any inaccuracies extent such representation or warranty is made in such representations and warranties Article IV only as of a specific date, such representation or warranty shall speak only as of such specific date.
(c) Since the Closing Date shall be disregarded if all such inaccuraciesAgreement Date, considered collectively, do not constitute a Material no Company Xxxxx Xxxxxxxx Adverse Effect shall have occurred and be continuing.
(it being understood d) The Purchaser shall have received a certificate signed by an authorized representative of the Seller certifying that any materiality qualification contained each of the conditions set forth in such representations Sections 7.2(a), 7.2(b) and warranties 7.2(c) have been satisfied.
(e) The Purchaser shall be disregarded for this purpose). The foregoing shall not be in limitation have received a certificate signed by an authorized representative of any rights the Seller, attaching and remediescertifying to the accuracy of the following: (i) copies of the Memorandum and Articles of Incorporation of the Company, including under Section 9 hereofand (ii) copies of resolutions duly adopted by the boards of directors of the Seller and the Company authorizing, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in as applicable, this Agreement to be complied with by Sellers on or before the Closing (including, without limitation, all obligations which Sellers would be required to perform at the Closing if and the transactions contemplated hereby were consummatedand thereby.
(f) Each of the Additional Agreements shall have been duly executed (in each case, in the form attached to this Agreement) and delivered to the Purchaser by the parties thereto other than the Purchaser and any Affiliate thereof, if applicable, and such Additional Agreements shall be in full force and effect in accordance with the terms thereof as of the Closing.
(g) The Company shall have the Minimum Company Cash at the time of Closing.
(h) The Seller shall have delivered to the Purchaser the Madhouse Settlement Letter, fully executed by each of the Madhouse Settlement Parties.
(i) The Seller shall have delivered to the Purchaser (i) the Historical Financial Statements and (ii) the September 30 Audited Financial Statements.
(j) The Purchaser shall have received certificates representing the Purchased Shares, and the Company’s register of members (maintained by the Company in accordance with the Companies Law of the Cayman Islands) shall have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authority, updated to restrain, prohibit or invalidate reflect the transactions contemplated by this Agreement, or which may affect the right transfer of the Sellers to sell, transfer or assign Purchased Shares to the Purchaser, or the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoing.
Appears in 1 contract
Samples: Share Exchange Agreement (Legacy Acquisition Corp.)
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be are subject to the satisfaction or fulfillment or waiver, at or prior to the Closing, of each Closing of the following conditions, any of which may be waived in whole or in part by the Purchaser in writing:
7.3.1. the (a) All representations and warranties of Sellers the Seller contained in Section 3 Sections 4.5(b) and 4.19 of this Agreement shall be true and correct in all material respects as of the date hereof at and as of the Closing with the same effect as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties were made at and as of the Closing Date (other than any representation or warranty that is expressly made as of a specified date, which shall be disregarded if true and correct as of such date only).
(b) At the Closing, the Seller shall have delivered to the Purchaser all such inaccuraciesof the Seller's right, considered collectivelytitle and interest in the Purchased Assets, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations which right, title and warranties interest shall be disregarded for sufficient to conduct the Business in a manner substantially similar to the manner in which the Business was conducted by the Seller immediately prior to the Closing Date.
(c) The Seller shall have performed and complied with all the covenants and agreements required by this purpose). The foregoing shall not Agreement to be performed or complied with by it at or prior to the Closing, except as would not, in limitation of any rights and remediesindividual case or in the aggregate, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;.
7.3.2. (d) All applicable waiting periods (and any extensions thereof) under the covenants and obligations contained in this Agreement to be complied with by Sellers on or before the Closing (including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) HSR Act shall have expired or otherwise been complied with in all material respects;terminated.
7.3.3. there (e) There shall be in effect no action, suit, proceeding Law or investigation injunction issued by a court of competent jurisdiction making illegal or before any court, administrative agency otherwise prohibiting or other Governmental Authority, to restrain, prohibit or invalidate restraining the consummation of the transactions contemplated by this Agreement, or which may affect .
(f) The Seller shall have delivered to the right Purchaser all of the Sellers certificates, instruments and other documents required to sell, transfer be delivered by the Seller at or assign prior to the PurchaserClosing pursuant to Section 3.2 hereof except, in the case of (i) Section 3.2(a)(vi) or Section 3.2(b)(iv), Encumbrances that do not materially impair the right value or use of the Purchaser to purchase and assume, the affected Purchased Assets or (ii) Section 3.2(a)(vii), Licenses, waivers, consents, approvals or authorizations other than the consent of the FCC to the FCC Applications and the expiration or termination of the waiting periods under the HSR Act.
(g) The FCC shall have granted its consent to the FCC Applications without the imposition on the Purchaser of any material portion thereof, at the Closing, which has conditions that need not been initiated be complied with by the Purchaser under Section 6.12 hereof and such consent shall have become a Final Order.
(h) The Seller and the Escrow Agent shall have entered into the Post-Closing Escrow Agreement.
(i) The Seller shall have (i) substantially completed any Environmental Work pursuant to Section 6.13 hereof to the extent the estimated costs and expenses associated with such Environmental Work are less than the Environmental Work Cost Limit, or (ii) complied with its Affiliatesobligations pursuant to Sections 6.13(b), family members(c), representatives (d), and (f) hereof to the extent the estimated costs and expenses associated with such Environmental Work are greater than the Environmental Work Cost Limit; provided that in the case of Subsection (ii) hereof, (x) the Purchaser incurs no liability for such Environmental Work or any party acting in concert with any respect to the applicable Environmental Violation and (y) the estimated costs and expenses for such Environmental Work do not exceed Three Million Dollars ($3,000,000).
(j) The Seller shall have conveyed to the Purchaser good and marketable title to all of the foregoingOwned Real Property, free and clear of all liens, claims and Encumbrances, other than Permitted Encumbrances or Encumbrances that do not materially impair the value or use of the parcel of Owned Real Property to which they relate.
(k) THE PARTIES UNDERSTAND AND AGREE THAT THE FAILURE OF THE REPRESENTATIONS AND WARRANTIES OF SELLER (OTHER THAN THOSE CONTAINED IN SECTIONS 4.5(b) AND 4.19) TO BE TRUE AND CORRECT AS OF THE CLOSING DATE SHALL IN NO WAY LIMIT PURCHASER'S OBLIGATIONS TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING ITS OBLIGATIONS UNDER ARTICLE III, BUT MAY PROVIDE THE BASIS FOR PURCHASER CLAIMS PURSUANT TO SECTION 8.4.
(l) The Sellers shall have obtained releases of the Encumbrances identified as Item 2 of Schedule 4.5(b).
Appears in 1 contract
Samples: Asset Purchase Agreement (Hearst Argyle Television Inc)
Conditions to Obligations of the Purchaser. The obligations obligation of the Purchaser to consummate the transactions contemplated by this Agreement shall be is subject to the fulfillment satisfaction (or waiver, at or prior to wavier by the Closing, of each Purchaser) of the following additional conditions:
7.3.1. (a) Other than the representations and warranties of the Sellers and the Principal contained in Section 3 5.1, Section 5.2, Section 5.6 and Section 5.20, the representations and warranties of the Sellers and the Principal set forth in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not 4306983-11 qualified by materiality or Material Adverse Effect) on and as of the date hereof and as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all with the same effect as though made at and as of such inaccuracies, considered collectively, do not constitute a Material Adverse Effect date (it being understood that any materiality qualification contained in such except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be disregarded for this purposedetermined as of that specified date). The foregoing representations and warranties of the Sellers and the Principal contained in Section 5.1, Section 5.2, Section 5.6 and Section 5.20 shall not be true and correct in limitation all respects on and as of any rights the date hereof and remedieson and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, including under Section 9 hereofthe accuracy of which shall be determined as of that specified date in all respects).
(b) The Sellers and the Principal shall have duly performed and complied in all material respects with all agreements, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by Sellers on it as of or before prior to the Closing Date.
(including, without limitationc) The Sellers and the Principal shall have obtained at their own expense (and shall have provided executed copies thereof to the Purchaser) all Required Consents, all obligations of which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) shall have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding in full force and effect.
(d) No Legal Proceeding (i) challenging or investigation by or before any court, administrative agency or other Governmental Authority, seeking to restrain, prohibit or invalidate prevent the consummation of the transactions contemplated by this Agreement, or which may affect (ii) that would cause the right of the Sellers transactions contemplated by this Agreement to sell, transfer or assign to the Purchaserbe rescinded following consummation, or (iii) that would affect adversely the right of the Purchaser to purchase and assumeown, operate or control any of the Assets Purchased Assets, or any material portion thereofto conduct the Business as currently conducted, at following the Closing, and no such judgment, order, decree, stipulation or injunction shall be in effect.
(e) No Material Adverse Effect shall have occurred, and no event or circumstance shall have occurred or arisen that would reasonably be expected to result in a Material Adverse Effect.
(f) No data breach or compromise of any Seller’s information security systems shall have occurred.
(g) The Sellers and the Principal shall have duly executed and delivered each Transaction Document (other than this Agreement) to which has not been initiated it is a party and such other documents or deliverables required of it in connection with the Closing under Section 4.2.
(h) The Purchaser shall have received all Permits that are necessary for it to conduct the Business as conducted by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any Sellers as of the foregoingClosing Date, except for the Liquor Licenses which will be transferred by Sellers to Purchaser after the Closing Date.
(i) The Sellers shall have delivered to the Purchaser payoff letters with respect to all secured indebtedness of the Sellers and documents evidencing the release or termination of all Liens on the Purchased Assets, and copies of UCC termination statements to be filed upon the Closing with respect to all UCC financing statement evidencing Liens. 4306983-11
(j) The Sellers shall have terminated the Franchise Agreements and delivered evidence of such terminations to the Purchaser, provided Purchaser shall cause the franchisor to enter into such termination agreements.
(k) The Purchaser shall have received from the Sellers the results of an inventory count of the Business as of the date immediately prior to the Closing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ruths Hospitality Group, Inc.)
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or the Purchaser’s waiver, at or prior to before the Closing, of each of the following conditions:
7.3.1. (a) Other than the representations and warranties of Sellers contained the Vendor set out in Section 3 Sections 3.1, 3.2, 3.3, 3.4, 3.7 and 3.25, the representations and warranties of the Vendor set out in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any 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 as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all with the same effect as though made at and as of such inaccuracies, considered collectively, do not constitute a Material Adverse Effect date (it being understood that any materiality qualification contained in such except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be disregarded for this purposedetermined as of that specified date in all respects). The foregoing representations and warranties of the Vendor set out in Sections 3.1, 3.2, 3.3, 3.4, 3.7 and 3.25 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) The 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 complied with by it before or on the Closing Date.
(c) No Action shall have been commenced against the Purchaser, the Vendor the L8 Subsidiaries that would prevent the Closing. 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.
(d) All approvals, consents and waivers that are listed in Section 3.6 of the Disclosure Schedule shall have been received, and executed counterparts thereof shall have been delivered to the Purchaser, at or before the Closing.
(e) 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 limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;.
7.3.2. (f) The Transaction Documents (other than this Agreement) shall have been executed and delivered by the covenants parties thereto and obligations contained true and complete copies thereof shall have been delivered to the Purchaser.
(g) The Purchaser shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of the Vendor, that (i) each of the conditions set forth in Section 6.2(a) and Section 6.2(b) has been satisfied and (ii) attached thereto are true and complete copies of all resolutions adopted by the shareholder(s) and the board of directors of the Vendor authorizing the execution, delivery and performance of this Agreement to be complied with by Sellers on or before and the Closing (including, without limitation, all obligations which Sellers would be required to perform at other Transaction Documents and the Closing if consummation of the transactions contemplated hereby were consummatedand 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.
(h) The Purchaser shall have been complied with received a certificate, dated the Closing Date and signed by a duly authorized officer of the Vendor, certifying the names and signatures of the officers of the Vendor authorized to sign this Agreement, the Transaction Documents and the other documents to be delivered hereunder and thereunder.
(i) The Purchaser shall have received resignations of the directors and officers of the L8 Subsidiaries under Section 5.4, if applicable.
(j) The Vendor shall have delivered all financial statements of the L8 Subsidiaries required to be included in all material respects;the Listing Statement and the Prospectus pursuant to applicable Securities Laws and the policies of the CSE.
7.3.3. there (k) The Purchaser shall have received the conditional approval of the CSE for the Transaction and the listing of the Common Shares on the CSE.
(l) The Vendor shall have delivered to the Purchaser a certificate of status (or its equivalent) for the L8 Subsidiaries.
(m) The Vendor shall have delivered, or caused to be no actiondelivered, suitto the Purchaser share certificates representing the Vendor Shares, proceeding free and clear of Encumbrances, duly endorsed in blank or investigation accompanied by or before any court, administrative agency forms of share transfers or other Governmental Authority, instruments of transfer duly executed in blank.
(n) The Vendor shall have delivered to restrain, prohibit the Purchaser such other documents or invalidate instruments as the Purchaser reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement, or which may affect the right of the Sellers to sell, transfer or assign to the Purchaser, or the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoing.
Appears in 1 contract
Samples: Share Purchase Agreement
Conditions to Obligations of the Purchaser. The obligations obligation of the Purchaser to consummate effect the transactions contemplated by this Agreement shall be is further subject to the fulfillment or waiver, at or prior to the Closing, satisfaction of each of the following conditions, unless waived in writing by the Purchaser:
7.3.1. (a) The representations and warranties of the Seller contained in this Agreement shall have been true and correct when made and shall be true and correct as of the Closing, with the same force and effect as if made at the Closing, except (x) that representations and warranties which are made as of a specific date need only be true as of such date or (y) where the failure of such representations and warranties to be true and correct would not have a Material Adverse Effect (provided, however, that if any portion of any representation or warranty is already qualified by materiality, Material Adverse Effect or similar qualifiers, for purposes of determining whether this Section 5.2(a) has been satisfied with respect to such portion of such representation or warranty, such portion of such representation or warranty as so qualified must be true and correct in all respects and the representations and warranties of Sellers contained in Section 3 Sections 2.1, 2.2(a), 2.2(b) (except the last sentence thereof), 2.2(c), 2.3(b)(i), the first sentence of 2.13(c) and 2.19 shall be true and correct in all respects).
(b) The Seller shall have performed and complied in all material respects as of the date hereof and as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if with all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in this Agreement agreements required to be performed or complied with by Sellers on it under this Agreement at or before prior to the Closing.
(c) The Purchaser shall have received a certificate of an executive officer of the Seller to the effect that the conditions set forth in Sections 5.2(a) and 5.2(b) above have been satisfied.
(d) The Purchaser shall have received the FIRPTA Certificate from the Seller, provided, however, that if the Seller fails to deliver such certificate, the Closing (includingshall nevertheless take place, without limitation, all obligations which Sellers would be but the Purchaser shall withhold the amount of Taxes required to perform at be withheld in the Closing if the transactions contemplated hereby were consummated) shall have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authority, Purchaser's good faith judgment pursuant to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect the right Section 1445 of the Sellers to sell, transfer or assign to the Purchaser, or the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoingCode.
Appears in 1 contract
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or the Purchaser’s waiver, at or prior to before the Closing, of each of the following conditions:
7.3.1. the (a) The representations and warranties of Sellers contained the Vendors and LIBC set out in Section 3 this Agreement, the other Transaction Documents, and any certificate or other writing delivered pursuant hereto shall be true and correct in all material respects on and as of the date hereof and as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all with the same effect as though made at and as of such inaccuracies, considered collectively, do not constitute a Material Adverse Effect date (it being understood that any materiality qualification contained in such except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be disregarded for this purposedetermined as of that specified date). The foregoing shall , except as would not reasonably be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may expected to have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;.
7.3.2. (b) Each of the covenants Vendors and obligations contained LIBC 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 Sellers such Vendor or LIBC, as applicable, before or on the Closing Date; provided that, with respect to agreements, covenants, and conditions that are qualified by materiality, the applicable party shall have performed such agreements, covenants, and conditions, as so qualified, in all respects.
(c) No Action shall have been commenced against the Purchaser, any of the Vendors, LIBB, or LIBC that would prevent the Closing. 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.
(d) All approvals, consents, and waivers that are listed in Schedule 3.5 shall have been received, and executed counterparts thereof shall have been delivered to the Purchaser, at or before the Closing Closing, and no such approval, consent or waiver shall have been revoked, except as would not reasonably be expected to have a Material Adverse Effect.
(includinge) 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 limitationthe lapse of time, all obligations which Sellers would reasonably be required expected to perform at result in a Material Adverse Effect.
(f) The Transaction Documents (other than this Agreement) shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to the Purchaser.
(g) The Purchaser shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of the LIBB Vendor: (i) that each of the conditions set forth in Subsections 7.2(a) and 7.2(b) has been satisfied by the LIBB Vendor; (ii) that attached thereto are true and complete copies of all resolutions adopted by the shareholders, if applicable, and the board of directors of the LIBB Vendor authorizing the execution, delivery, and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby were consummatedand 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; and (iii) certifying the names and signatures of the officers of the LIBB Vendor authorized to sign this Agreement, the Transaction Documents, and the other documents to be delivered hereunder and thereunder.
(h) The Purchaser shall have received (A) a certificate, dated the Closing Date and signed by the LIBC Vendor Representative, for and on behalf of the LIBC Vendors other than European High Growth Opportunities Securitization Fund: (i) that each of the conditions set forth in Subsections 7.2(a) and 7.2(b) has been complied satisfied by the relevant LIBC Vendors; (ii) that attached thereto are true and complete copies of all resolutions adopted by the relevant LIBC Vendors, where required, authorizing the execution, delivery, and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated 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; and (iii) certifying the names and signatures of the LIBC Vendor Representative authorized to sign this Agreement, the Transaction Documents, and the other documents to be delivered hereunder and thereunder, and (B) a certificate, dated the Closing Date and signed by European High Growth Opportunities Securitization Fund: (i) that each of the conditions set forth in Subsections 7.2(a) and 7.2(b) has been satisfied by it in respect of itself; and (ii) that attached thereto are true and complete copies of all material respects;resolutions adopted by it, where required, authorizing the execution, delivery, and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated 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.
7.3.3. there (i) The Purchaser shall have completed, or shall be no actioncompleting contemporaneously with the Closing, suita brokered financing in the aggregate amount of not less than $2,000,000, proceeding or investigation such other amount as the Purchaser, the LIBB Vendor, European High Growth Opportunities Securitization Fund, and the LIBC Vendor Representative may from time to time agree in writing.
(j) The Purchaser shall have received resignations and releases of the directors and officers of each of LIBB and LIBC as described in Section 6.7.
(k) The LIBB Vendor shall have delivered to the Purchaser a Certificate of Good Standing or equivalent for LIBB issued by the State of Delaware or before any courtsimilar Governmental Authority of the jurisdiction under the Laws which govern LIBB.
(l) LIBC shall have delivered to the Purchaser a Certificate of Good Standing or equivalent for LIBC issued by the Province of British Columbia or similar Governmental Authority of the jurisdiction under the Laws which govern LIBB.
(m) The LIBB Vendor shall have delivered, administrative agency or caused to be delivered, to the Purchaser share certificates representing the LIBB Shares, free and clear of Encumbrances, duly endorsed in blank or accompanied by forms of share transfers or other Governmental Authorityinstruments of transfer duly executed in blank.
(n) The LIBC Vendor Representative and European High Growth Opportunities Securitization Fund shall have delivered, or caused to be delivered, to restrainthe Purchaser share certificates representing the LIBC Shares, prohibit free and clear of Encumbrances, other than Permitted Encumbrances, duly endorsed in blank or invalidate accompanied by forms of share transfers or other instruments of transfer duly executed in blank.
(o) The LIBB Vendor, the LIBC Vendor Representative, and/or European High Growth Opportunities Securitization Fund, as applicable, shall have delivered to the Purchaser such other documents or instruments as the Purchaser reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.
(p) The LIBB Vendor shall have delivered, or which may affect the right of the Sellers caused to sellbe delivered, transfer or assign to the PurchaserPurchaser evidence of an election with the United States Internal Revenue Service on Form 8832 to be treated as an association taxable as a corporation for U.S. federal income tax purposes, or it being understood that Purchaser shall reimburse the right LIBB Vendor for all costs incurred in filing this election, to a maximum of US $500.00.
(q) No amounts shall be owing by LIBB to the Purchaser to purchase and assume, the Assets LIBB Vendor or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or of its Affiliates, family membersand LIBB shall have no debt other than Current Liabilities and long-term Liabilities not to exceed the amount disclosed in LIBB’s June 30, representatives or any party acting in concert with any 2019 balance sheet.
(r) Certain of the foregoingLIBB Share Consideration shall have been assigned to third parties as agreed with LIBC, pursuant to an irrevocable direction to be executed by the LIBB Vendor.
Appears in 1 contract
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be are subject to the satisfaction or fulfillment at or waiverprior to the Closing of the following conditions, any of which may be waived in whole or in part by the Purchaser in writing:
(a) All representations and warranties of the Sellers contained in this Agreement (without giving effect to any qualifications regarding materiality or Material Adverse Effect) shall be true and correct at and as of the Closing with the same effect as though such representations and warranties were made at and as of the Closing (other than any representation or warranty that is expressly made as of a specified date, which shall be true and correct as of such specified date only) except to the extent that the failure of the representations and warranties of the Sellers contained in this Agreement to be so true and correct at and as of the Closing (or in respect of any representation or warranty that is expressly made as of a specified date, as of such date only) has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(b) The Sellers shall have performed and complied in all material respects with all the covenants and agreements required by this Agreement to be performed or complied with by them at or prior to the Closing, of each of .
(c) All applicable waiting periods (and any extensions thereof) under the following conditions:HSR Act shall have expired or otherwise been terminated.
7.3.1. the representations and warranties of Sellers contained in Section 3 (d) There shall be true and correct in all material respects as effect no Law or injunction issued by a court of competent jurisdiction making illegal or otherwise prohibiting or restraining the date hereof and as consummation of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in this Agreement to be complied with by Sellers on or before the Closing (including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) shall have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement.
(e) Subject to Section 6.20, or which may affect the right FCC Consent shall have been granted and shall be in full force and effect; provided that the parties understand and agree that the obligation of the parties to consummate the transactions contemplated by this Agreement is not subject to the condition that the FCC Consent shall have become a Final Order.
(f) All consents, approvals or waivers set forth in Schedule 7.1(f) hereto shall have been obtained and delivered to the Purchaser without any condition, modification or amendment that the Purchaser is not required to accept pursuant to Section 3.5, 6.4(a) or 6.4(b), as applicable.
(g) The Sellers to sell, transfer or assign shall have delivered to the Purchaser, or at least thirty (30) days prior to the right Closing Date, the Audited Financial Statements and the Audit Opinion.
(h) The Sellers shall have delivered to the Purchaser all of the Purchaser certificates, instruments and other documents required to purchase and assumebe delivered by them at or prior to the Closing pursuant to this Agreement, the Assets or any material portion thereofincluding, at the Closingwithout limitation, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoingthose to be delivered pursuant to Section 3.2.
Appears in 1 contract
Conditions to Obligations of the Purchaser. The obligations of the Purchaser and the Parent to consummate effect the transactions contemplated by this Agreement shall be Second Closing are subject to the fulfillment or waiver, satisfaction at or prior to the Closing, of each Second Closing Date of the following conditions, any or all of which may be waived in writing by the Purchaser, in whole or in part, to the extent permitted by applicable Law:
7.3.1. (i) the Fundamental Reps of the Sellers shall have been true, correct and complete in all respects as of the Closing Date and shall be true, correct and complete in all respects as of the Second Closing Date and (ii) all other representations and warranties of the Sellers contained in Section 3 this Agreement and the other Transaction Documents (A) that are qualified by the terms “material”, “materiality” or “material adverse effect” shall have been true, correct and complete in all respects as of the Closing Date and shall be true true, correct and complete in all respects as of the Second Closing Date as if made as of the Second Closing Date (or, with respect to such representations and warranties which specifically relate to an earlier date, at and as of such earlier date instead) and (B) that are not qualified by the terms “material”, “materiality” or “material adverse effect” shall have been true, correct and complete in all material respects as of the date hereof Closing Date and shall be true, correct and complete in all material respects as of the Second Closing Date as though restated on if made as of the Second Closing Date (or, with respect to such representations and warranties which specifically relate to an earlier date, at and as of such dateearlier date instead), provided that solely for the purpose condition in this clause (ii) shall apply only if reasonably anticipated Losses from all breaches of this Section 7.3.1 any and inaccuracies in such other representations and warranties as exceed, in the aggregate, the value of the remaining Escrow Shares, net of any other then pending claims;
(b) the Sellers and the other signatories to the First Closing Date deliverables shall have performed and satisfied in all material respects all covenants and agreements required by the Transaction Documents and such deliverables to be performed and satisfied by such Persons at or prior to the Second Closing;
(c) no Action shall be disregarded if all such inaccuracies, considered collectively, do not constitute pending or threatened before any Governmental Authority seeking to restrain any Seller or prohibit the Second Closing or seeking damages against any Party as a Material Adverse Effect result of the consummation of this Agreement; and
(it being understood that any materiality qualification contained in such representations and warranties d) the Purchaser shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, have received a certificate executed by the Sellers to the effect that the Purchaser may have conditions set forth in Section 5.2(a), Section 5.2(b) and (with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in this Agreement to be complied with by Sellers on or before the Closing (including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummatedSellers) shall Section 5.2(c) have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect the right of the Sellers to sell, transfer or assign to the Purchaser, or the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoingsatisfied.
Appears in 1 contract
Conditions to Obligations of the Purchaser. The obligations of the Purchaser under this Agreement to consummate the transactions contemplated by this Agreement shall be purchase of the Assets are subject to the fulfillment on or waiver, at or prior to before the Closing, Closing Date of each of the following conditions:
7.3.15.1. the Except as disclosed in writing to Purchaser and not disapproved by them, all representations and warranties of Sellers the Seller and the Partners contained in Section 3 this Agreement shall (except as affected by the transactions contemplated by this Agreement and except to the extent made as of a specified date) be true and correct in all material respects on the Closing Date with the same effect as of the date hereof though such representations and warranties had been made on and as of the Closing as though restated on Date, and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as all of the Closing Date shall be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations actions of Seller and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation each of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in this Agreement Partners to be complied with by Sellers performed on or before the Closing (including, without limitation, all obligations which Sellers would be required Date pursuant to perform at the Closing if the transactions contemplated hereby were consummated) terms hereof shall have been complied with duly performed in all material respects;.
7.3.35.2. there Purchaser shall have received certificates, dated as of the Closing Date, of Seller and each of the Partners to the effect that the conditions specified in Section 5.1 have been fulfilled.
5.3. Purchaser shall have received an opinion of counsel to Seller and the HD-Related Partners, and an opinion of counsel to Phemus in substantially the form of Exhibits "D-1" and "D-2" hereto.
5.4. Neither the Assets nor the Premises shall have suffered material damage by fire, flood or other casualty.
5.5. There shall be no action, suit, proceeding pending or threatened litigation or any investigation by any governmental body or before any courtlegal, administrative agency or other Governmental Authorityarbitration proceeding pending or threatened that may have a material adverse effect of the operation of the Assets by THD.
5.6. No governmental inquiry, action or proceeding shall have been asserted, threatened or initiated to restrain, prohibit or invalidate enjoin the transactions contemplated by this Agreement.
5.7. The Seller shall have delivered to THD at the Premises all of the records referred to in Section 1.1(d) above.
5.8. The Seller shall have delivered to THD assignment agreements in the form of Exhibits "E", "F" and "G" attached hereto with respect to the Premises, and the landlord's Consent in the form of Exhibit "H" with respect to 0000 Xxxxxxx Xxxxxxxxx.
5.9. The Seller shall have executed a xxxx of sale and assignment in substantially the form of Exhibit "I" transferring all of the Assets to THD.
5.10. Each of Xxxx Xxxxxxx, Xxxxxxx Xxxxx and Xxxxx Xxxxxxxx each shall have entered into an Employment Agreement with Purchaser effective as of the Closing Date.
5.11. The Seller and Xxxx shall have entered into the Registration Rights Agreement in substantially the form of Exhibit "C".
5.12. Seller and each of the Partners shall release any security interest any of them may have in any of the Assets.
5.13. Seller shall have satisfied the rights or options of Xxxxxxx Xxxxxxx to acquire equity interests in Seller or profit participations in Seller's business, evidenced by a certificate executed by Xxxxxxx Xxxxxxx in form satisfactory to Purchaser.
5.14. The Seller, the HD-Related Partners and Phemus shall have delivered to the Purchaser its or his respective Noncompetition Agreement in substantially the form of Exhibits "J" and "K" hereto.
5.15. The Partners shall have delivered to the Purchaser the Indemnification Agreement in substantially the form of Exhibit "L" hereto.
5.16. As of the Closing, no event shall have occurred and no circumstance shall exist which may materially and adversely affect or, in the right reasonable judgment of the Sellers to sell, transfer or assign to the Purchaser, threaten to affect the Seller's business, assets, properties, condition or the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoingprospects.
Appears in 1 contract
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be are subject to the fulfillment or the Purchaser’s waiver, at or prior to before the Closing, of each of the following conditions:conditions:
7.3.1. the (a) The representations and warranties of Sellers contained the Vendors and Company set out in Section 3 shall this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto will be true and correct in all material respects on and as of the date hereof and as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all with the same effect as though made at and as of such inaccuracies, considered collectively, do not constitute a Material Adverse Effect date (it being understood that any materiality qualification contained in such except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be disregarded for determined as of that specified date in all respects).
(b) The Vendors and Company shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this purpose). Agreement and each of the other Transaction Documents to be performed or complied with by it before or on the Closing Date.
(c) The foregoing shall Purchaser will have received the applicable Exchange Approval.
(d) From the date of this Agreement, there will not have occurred any Material Adverse Effect, nor will 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 limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;.
7.3.2. (e) The Vendors and Company (if applicable) will have delivered to the covenants Purchaser duly executed (by the Vendors or such other Persons, as applicable) counterparts of the Transaction Documents (other than this Agreement) and obligations contained such other documents and deliveries set forth in this Agreement Agreement.
(f) The Vendors will have delivered, or caused to be complied with delivered, to Purchaser share certificates representing the Purchased Shares, duly endorsed in blank or accompanied by Sellers on forms of share transfers or before other instruments of transfer duly executed in blank.
(g) The Company shall have delivered to the Purchaser a certificate of good standing in its jurisdiction of incorporation dated no more than two (2) business days prior to the Closing Date. DocuSign Envelope ID: B5479193-97B5-4F55-A308-0DF11CF12692
(includingh) The Purchaser will have received the Company Resolutions.
(i) The Purchaser shall be satisfied, without limitationin its sole discretion, with the results of its due diligence investigations respecting the Company, its business and its assets.
(j) The Vendors and Company shall have obtained any and all obligations which Sellers would be consents, approvals, orders or authorizations of, or declarations or filings with, any third party required to perform at be obtained by the Closing if Company or the transactions contemplated hereby were consummatedVendors in connection with the execution and delivery of this Agreement or the completion by the Company and the Vendors of the Transaction, which for clarity includes any third party under a Material Contract or in connection with the transfer of any license or permit necessary for the ordinary operation of the Target Business.
(k) The Vendors shall have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding delivered to the Purchaser such other documents or investigation by or before any court, administrative agency or other Governmental Authority, instruments as the Purchaser reasonably requests that are reasonably necessary to restrain, prohibit or invalidate consummate the transactions contemplated by this Agreement.
(l) The Company shall have delivered to the Purchaser (to the extent the Company possesses or has access to) all information necessary to access the Company’s banking accounts, or which such information to include lock-out codes, pass-key numbers, pass-words, communicator identification, programming information, crypto wallet and such other information as the Purchaser may affect request and the right Company shall have taken all steps in its power to update the signatories on its banking accounts to reflect the new ownership of the Sellers to sell, transfer or assign to Company on the Purchaser, or Closing. The conditions set forth in this Section 7.1 are for the right exclusive benefit of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated may be waived by the Purchaser in writing in whole or its Affiliates, family members, representatives in part on or any party acting in concert with any of before the foregoingClosing.
Appears in 1 contract
Samples: Share Purchase Agreement
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be are subject to the satisfaction or fulfillment at or waiverprior to the Closing of the following conditions, any of which may be waived in whole or in part by the Purchaser in writing:
(a) All representations and warranties of the Seller contained in this Agreement shall be true and correct at and as of the Closing with the same effect as though such representations and warranties were made at and as of the Closing (other than any representation or warranty that is expressly made as of a specified date, which shall be true and correct as of such specified date only) except where the failure to be so true and correct, individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect.
(b) The Seller shall have performed and complied in all material respects with all the covenants and agreements required by this Agreement to be performed or complied by it at or prior to the Closing, of each of .
(c) All applicable waiting periods (and any extensions thereof) under the following conditions:HSR Act shall have expired or otherwise been terminated.
7.3.1. the representations and warranties of Sellers contained in Section 3 (d) There shall be true and correct in all material respects as effect no Law or injunction issued by a court of competent jurisdiction making illegal or otherwise prohibiting or restraining the date hereof and as consummation of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in this Agreement to be complied with by Sellers on or before the Closing (including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) shall have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect .
(e) The Seller shall have delivered to the right Purchaser all of the Sellers certificates, instruments and other documents required to sell, transfer be delivered by it at or assign prior to the PurchaserClosing pursuant to Section 3.2 hereof, or including the right of Required Consents, and shall have made the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated payment required by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoingSubscription Fulfillment Agreement.
(f) The NYT Board Approval shall have been obtained.
Appears in 1 contract
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or waiverwaiver by the Purchaser, at or prior to the Closing, of each of the following conditionsconditions precedent:
7.3.1. the (a) The representations and warranties of Sellers the Seller, the Seller's Parent and the Corporation contained in Section 3 this Agreement, or in any certificate or other document delivered to the Purchaser pursuant hereto, shall be true and correct in all material respects on or as of the Closing Date, with the same force and effect as if made as of the Closing, other than such representations and warranties as are made as of another date which shall be true and correct in all material respects as of the date hereof and as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in this Agreement to be complied with by Sellers Seller, the Seller's Parent or the Corporation on or before the Closing (including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) shall have been complied with in all material respects;, and Purchaser shall have received certificates from Seller to such effect signed by a duly authorized officer thereof.
7.3.3. there (b) Since December 31, 2000, except for the sale of the CNG Business pursuant to the CNG Business Sale Agreement, no change shall have occurred in the business, operations, results of operations, assets, liabilities, capitalization or condition (financial or otherwise), of the Corporation, whether or not in the ordinary course of business, whether separately or in aggregate with other occurrences or developments, and whether insured against or not, which could be no action, suit, proceeding or investigation by reasonably expected to have a Material Adverse Effect on the Corporation.
(c) At or before the Closing Date, there will have been obtained from all appropriate federal, provincial, state, municipal and other governmental or administrative bodies or any courtother person all such approvals and consents in form and on terms satisfactory to counsel for the Purchaser as may be required in order to permit the change in ownership of the Purchased Shares as herein contemplated without affecting or resulting in any cancellation or termination of or reduction of any right under any material permit, administrative agency license, contract, agreement or other Governmental Authority, lease held by the Corporation.
(d) Without limiting the generality of Sub-section 6.2(c): (i) either (a) the Commissioner of Competition (the "Commissioner") shall have issued an advance ruling certificate (an "ARC") under section 102 of the Competition Act in respect of the transaction contemplated in this Agreement and shall not have subsequently withdrawn or purported to restrain, prohibit have withdrawn such ARC prior to the acquisition by the Purchaser of the Purchased Shares pursuant to this Agreement or invalidate have stated or otherwise indicated that he has obtained new information as a result of which he is no longer satisfied that he would not have sufficient grounds on which to apply to the transactions Competition Tribunal under section 92 of the Competition Act with respect to the transaction contemplated by in this Agreement, ; or which may affect (b) the right applicable time period under section 123 of the Sellers to sellCompetition Act shall have expired, transfer and the Commissioner or assign his authorized representative shall have advised the Purchaser (on terms and in a form satisfactory to the Purchaser) that 43 -39- the Commissioner does not intend to make an application under section 92 of the Competition Act in respect of the transaction contemplated in this Agreement and neither the Commissioner nor any of his representatives shall have rescinded or amended such advice; and (ii) any applicable waiting period under the Harx-Xxxxx-Xxxxxx Xxtitrust Improvements Act of 1976, and any other applicable foreign competition laws, shall have expired.
(e) No action or proceeding by law or in equity will be pending or threatened by any person to enjoin or prohibit: (i) the purchase and sale of the Purchased Shares contemplated hereby or the right of the Purchaser to purchase own the Purchased Shares, or (ii) the right of each the Corporation to carry on the Business.
(f) All actions shall have been taken to distribute to Seller (or otherwise dispose of) all of the assets and assumeliabilities, included in and as contemplated by Section 2.5 and a certificate from an officer of each of the Seller and the Seller's Parent that the CNG Business has been sold pursuant to the CNG Business Sale Agreement and all filings and remittances have been made by the Corporation.
(g) No legislation (whether by statute, by-law, regulation or otherwise) shall have been enacted, introduced or announced which, in the reasonable opinion of the Purchaser, adversely affects or may adversely affect the operations of the Business.
(h) Any obligations or agreements of the Corporation which will or may in any way materially inhibit the current or future operations and businesses of the Purchaser and its subsidiaries (including without limitation the Corporation, if acquired), including without limitation, the Assets supply agreement between ATT Canada and the Corporation, effective upon Closing Date, being cancelled or any material amended upon terms and conditions satisfactory to the Purchaser.
(i) Execution and delivery of the Ancillary Agreements.
(j) The Seller and the Purchaser shall work co-operatively and in good faith to cause PEH to enter into agreement(s) (the "Canadian Customers Agreement") with the Purchaser, on terms and conditions mutually satisfactory to the Purchaser and PEH or otherwise effect the assignment of the Canadian portion thereof, at of the those agreements listed in Schedule 6.2(j) such that after Closing, the Corporation will continue to serve such customers in Canada, and receive revenues in Canada which has not been initiated relate to any goods and services relating to the Business purchased by the Purchaser or its Affiliates, family members, representatives or any party acting such customers in concert with any of the foregoingCanada.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Williams Communications Group Inc)
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be are subject to the fulfillment or the Purchaser’s waiver, at or prior to before the Closing, of each of the following conditions:
7.3.1. the (a) The representations and warranties of Sellers contained the Vendors and Company set out in Section 3 shall this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto will be true and correct in all material respects on and as of the date hereof and as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all with the same effect as though made at and as of such inaccuracies, considered collectively, do not constitute a Material Adverse Effect date (it being understood that any materiality qualification contained in such except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be disregarded for determined as of that specified date in all respects).
(b) The Vendors and Company shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this purpose). Agreement and each of the other Transaction Documents to be performed or complied with by it before or on the Closing Date.
(c) The foregoing shall Purchaser will have received the applicable Exchange Approval.
(d) From the date of this Agreement, there will not have occurred any Material Adverse Effect, nor will 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 limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;.
7.3.2. (e) The Vendors and Company (if applicable) will have delivered to the covenants Purchaser duly executed (by the Vendors or such other Persons, as applicable) counterparts of the Transaction Documents (other than this Agreement) and obligations contained such other documents and deliveries set forth in this Agreement Agreement.
(f) The Vendors will have delivered, or caused to be complied with delivered, to Purchaser share certificates representing the Purchased Shares, duly endorsed in blank or accompanied by Sellers on forms of share transfers or before other instruments of transfer duly executed in blank.
(g) The Company shall have delivered to the Purchaser a certificate of good standing in its jurisdiction of incorporation dated no more than two (2) business days prior to the Closing Date.
(includingh) The Purchaser will have received the Company Resolutions.
(i) The Vendors and Company shall have obtained any and all consents, without limitationapprovals, all obligations which Sellers would be orders or authorizations of, or declarations or filings with, any third party required to perform at be obtained by the Closing if Company or the transactions contemplated hereby were consummatedVendors in connection with the execution and delivery of this Agreement or the completion by the Company and the Vendors of the Transaction, which for clarity includes any third party under a Material Contract or in connection with the transfer of any license or permit necessary for the ordinary operation of the Target Business.
(j) The Purchaser shall have been complied with received an acknowledgment and consent from Lavrium and the Securityholders substantially in all material respects;the form attached as Exhibit F.
7.3.3. there (k) The Vendors shall be no action, suit, proceeding have delivered to the Purchaser such other documents or investigation by or before any court, administrative agency or other Governmental Authority, instruments as the Purchaser reasonably requests that are reasonably necessary to restrain, prohibit or invalidate consummate the transactions contemplated by this Agreement.
(l) The Company shall have delivered to the Purchaser (to the extent the Company possesses or has access to) all information necessary to access the Company’s banking accounts, or which such information to include lock‐out codes, pass‐key numbers, pass‐words, communicator identification, programming information, and such other information as the Purchaser may affect request and the right Company shall have taken all steps in its power to update the signatories on its banking accounts to reflect the new ownership of the Sellers to sell, transfer or assign to Company on the Purchaser, or Closing. The conditions set forth in this Section 7.1 are for the right exclusive benefit of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated may be waived by the Purchaser in writing in whole or its Affiliates, family members, representatives in part on or any party acting in concert with any of before the foregoingClosing.
Appears in 1 contract
Samples: Share Purchase Agreement
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be are subject to the fulfillment or waiver, at or prior to the Closing, of each satisfaction of the following conditions, any one or more of which may be waived in writing by the Purchaser:
7.3.1. (a) all necessary filings with and consents, approvals, licenses, permits, and orders of any Governmental Authority required by Law for the consummation of the transactions contemplated in this Agreement shall have been made and obtained;
(b) (i) the representations set forth in Sections 3.01, 3.02, 3.04, 3.06, 3.07 and warranties of Sellers contained in Section 3 3.11 shall be true and correct in all material respects as of the date hereof of this Agreement and as of the Closing Closing, as though restated on if made at and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in time (other than such representations and warranties that expressly address matters only as of a certain date, which need only be true as of such certain date) and (ii) all other representations and warranties of EEP contained in this Agreement shall be true and correct in all respects (disregarding all qualifications as to materiality and qualifications of similar import contained therein) as of the Closing Date shall be disregarded date of this Agreement and as of the Closing, as if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect made at and as of that time (it being understood that any materiality qualification contained in other than such representations and warranties shall that expressly address matters only as of a certain date, which need only be disregarded for this purposetrue as of such certain date). The foregoing shall , except where the failure of such representations, individually or in the aggregate, to be true and correct would not reasonably be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may expected to have with respect to any such inaccuracies whether or not they constitute a EEP Material Adverse Effect;
7.3.2. (c) EEP shall have performed or complied in all material respects with all of the covenants and obligations contained in agreements required by this Agreement to be performed or complied with by Sellers EEP on or before the Closing Closing;
(includingd) EEP shall have delivered to Purchaser a certificate, without limitation, all obligations which Sellers would be required to perform at dated the Closing if Date, certifying that the conditions specified in Sections 6.02(b) and 6.02 (c) have been fulfilled;
(e) no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction, judgment or other order shall have been enacted, entered, promulgated, enforced or issued by any Governmental Authority, or other legal restraint or prohibition preventing the consummation of the transactions contemplated hereby were consummated) shall be in effect, and no investigation, action or proceeding before a court or any other governmental agency or body shall have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding instituted or investigation by threatened challenging or before any court, administrative agency seeking to restrain or other Governmental Authority, to restrain, prohibit or invalidate the consummation of the transactions contemplated by this Agreement, Agreement or which may affect to recover damages in connection therewith; and
(f) EEP shall have delivered or caused to be delivered the right of the Sellers to sell, transfer or assign to the Purchaser, or the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting Closing deliverables set forth in concert with any of the foregoingSection 2.03.
Appears in 1 contract
Samples: Series 1 Preferred Unit Purchase Agreement (Enbridge Energy Partners Lp)
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions at the Closing contemplated by this Agreement shall be are subject to the satisfaction or fulfillment at or waiverprior to the Closing of the following conditions, any of which may be waived in whole or in part by the Purchaser in writing:
(a) All representations and warranties of the Sellers contained in this Agreement (disregarding any qualifications regarding materiality or Material Adverse Effect) shall be true and correct at and as of the Closing with the same effect as though such representations and warranties were made at and as of the Closing (other than any representation or warranty that is expressly made as of a specified date, which shall be true and correct as of such date only) except for changes which are permitted or contemplated pursuant to this Agreement or specifically consented to by the Purchaser in writing or to the extent that the failure of the representations and warranties of the Sellers contained in this Agreement to be true and correct at and as of the Closing (or in respect of any representation or warranty that is expressly made as of a specified date, as of such date only) has not had and would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) The Sellers shall have performed and complied in all material respects with all the covenants and agreements required by this Agreement to be performed or complied with by them at or prior to the Closing, of each of the following conditions:.
7.3.1. the representations and warranties of Sellers contained in Section 3 shall be true and correct in all material respects as of (c) Since the date hereof and as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all such inaccuraciesAgreement, considered collectivelyno event, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may circumstance or condition has occurred which has had or is reasonably expected to have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;.
7.3.2. the covenants and obligations contained in this Agreement to be complied with by Sellers on or before the Closing (including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummatedd) shall have been complied with in all material respects;
7.3.3. there There shall be in effect no action, suit, proceeding Law or investigation Governmental Order issued by a Governmental Authority of competent jurisdiction making illegal or before any court, administrative agency otherwise prohibiting or other Governmental Authority, to restrain, prohibit or invalidate restraining the consummation of the transactions contemplated by this Agreement, or which may affect .
(e) The Sellers shall have delivered to the right Purchaser all of the certificates, instruments and other documents required to be delivered by the Sellers to sell, transfer at or assign prior to the Purchaser, or Closing pursuant to Section 3.2 hereof.
(f) The FCC shall have granted the right of FCC Consent without the imposition on the Purchaser to purchase and assume, the Assets or its Affiliates of any material portion thereof, at the Closing, which has conditions that need not been initiated be complied with by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any Affiliates under Section 6.4(b) hereof and the FCC’s action granting the FCC Consent shall have become a Final Order.
(g) As of the foregoingClosing, there shall not be any Liens on the Broadcasting Assets, other than Permitted Encumbrances and Encumbrances released at Closing.
(h) All Required Consents shall have been obtained and delivered to the Purchaser. For purposes of this Agreement, “Required Consents” shall mean those Consents marked with an asterisk on Schedule 4.3 hereto.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Granite Broadcasting Corp)
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate effect the transactions contemplated by this Agreement hereby shall be subject to the fulfillment satisfaction (or waiver, at or prior to waiver by the Closing, of each Purchaser) of the following conditions:
7.3.1. (A) The representations and warranties contained in Section 3.2(a), (b), (c), (d), (n), and (z) of this Agreement shall be true, correct and complete in all respects at the Closing Date as if made again at that time (except to the extent that any representation or warranty speaks as of an earlier date, in which case it must be true, correct and complete only as of that earlier date) and (B) each of the other representations and warranties of the Sellers contained in Section 3 this Agreement shall be true true, correct and correct complete (without regard to any qualifications as to materiality or material adverse effect (or any correlative term) contained in such representations or warranties) in all material respects as of the date hereof and as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of at the Closing Date shall be disregarded as if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect made again at that time (it being understood except to the extent that any materiality qualification contained representation or warranty speaks as of an earlier date, in such representations which case it must be true, correct and warranties shall be disregarded for this purposecomplete only as of that earlier date). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2ii. the Each Seller shall have performed in all material respects all agreements and covenants and obligations contained in required by this Agreement to be performed or complied with by Sellers it on or before prior to the Closing (including, without limitation, all obligations which Date;
iii. All necessary consents and approvals of Governmental Authorities or third parties for the Sellers would be required to perform at the Closing if consummate the transactions contemplated hereby were consummated) shall have been complied with in all material respectsobtained, including obtaining the New Loan;
7.3.3iv. there There shall not have been a bankruptcy or similar insolvency proceeding with respect to the Owners or any Seller;
v. Each Owner and each Seller, as applicable, shall have executed and delivered to the Purchaser the documents required to be no action, suit, proceeding delivered by it pursuant to Section 2.3 hereof; and
vi. Each Seller retaining a Retained Interest shall have delivered to the Purchaser an accredited investor questionnaire duly executed by such Seller. Any or investigation by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect the right all of the Sellers to sell, transfer or assign to the Purchaser, or the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated conditions set forth in this Section 2.1(b) may be waived by the Purchaser or in its Affiliates, family members, representatives or any party acting in concert with any of the foregoingsole and absolute discretion.
Appears in 1 contract
Samples: Purchase and Sale Agreement (ETRE Residential, LLC)
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or waiverfulfillment, at or prior to the Closing, of each of the following conditions:
7.3.1condition, which may be waived in writing by the Purchaser in its sole discretion: Representations, Warranties and Covenants. (a) (i) the representations representation and warranties of Sellers warranty contained in Section 3 4.04 shall be true and correct in all material respects as of the date hereof Closing Date and as of (ii) the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties of the Seller Parties contained in the other Sections of Article IV shall be true and correct (without regard to any qualification as to materiality) as of the Closing Date (or, in the case of any representations and warranties that are made as of a specified date, as of such specified date); (b) the Seller Parties shall have performed all obligations and agreements and complied with all covenants required by this Agreement or any Ancillary Agreement to be disregarded if all such inaccuraciesperformed or complied with by it prior to or at the Closing, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in except where the failure of such representations and warranties described in clause (a)(ii) to be true and correct or the failure of the Seller Parties to so perform or comply does not materially and adversely affect the Transferred Business taken as a whole; provided, that the representations and warranties contained in Sections 4.02, 4.04 and 4.05 shall be disregarded for purposes of this purpose). The foregoing shall not Section 9.03 to the extent the failure of such representation and warranty to be in limitation true and correct is a result of any rights action or failure to act by any of Xxxx, Xxxxxxx and remedies, including under Section 9 hereof, that Xxxxxxxx in their capacity as officers of the Company and (c) the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in this Agreement to be complied with by Sellers on or before the Closing (including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) shall have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding or investigation received from the Seller Parties a certificate by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect the right each of the Sellers to sell, transfer or assign Seller Parties to the Purchasereffect set forth in the foregoing clauses (a) and (b), or the right of the Purchaser to purchase and assume, the Assets or any material portion signed by a duly authorized officer thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoing.. ARTICLE X. INDEMNIFICATION SECTION 10.01
Appears in 1 contract
Samples: Purchase and Sale Agreement
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be are subject to the satisfaction or fulfillment or waiver, at or prior to the Closing, of each Closing of the following conditions, any of which may be waived in whole or in part by the Purchaser in writing:
7.3.1. the (a) All representations and warranties of Sellers the HPI Indemnifying Stockholders contained in Section 3 this Agreement shall be true and correct in all material respects as of the date hereof at and as of the Closing with the same effect as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties were made at and as of the Closing Date (except for changes permitted or contemplated by this Agreement and except for any representation or warranty that is expressly made as of a specified date, which shall be disregarded if true and correct in all respects as of such inaccuraciesspecified date only), considered collectivelyin each case with only such exceptions as would not in the aggregate reasonably be expected to have a materially adverse effect on the assets, do not constitute properties, operations, business, financial condition or results of operations of the Acquired Companies, taken as a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded whole, except for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether change or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in effect arising directly or indirectly from (i) this Agreement to be complied with by Sellers on or before the Closing (including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) shall have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, (ii) the announcement or which may affect other disclosure of this Agreement or the right transactions contemplated by this Agreement, (iii) any changes in conditions generally applicable to the newspaper industry, or (iv) any changes in the general United States or global economic conditions.
(b) Each of the Sellers HPI Stockholders, HPI and HEC shall have performed and complied in all material respects with all the covenants and agreements required by this Agreement to sell, transfer be performed or assign complied with by it at or prior to the Purchaser, Closing.
(c) All applicable waiting periods (and any extensions thereof) under the HSR Act shall have expired or otherwise been terminated.
(d) There shall be in effect no Law or injunction issued by a court of competent jurisdiction making illegal or otherwise prohibiting or restraining the right consummation of the Purchaser transactions contemplated by this Agreement.
(e) HEC and each Acquired Company shall have delivered to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any all of the foregoingcertificates, instruments and other documents required to be delivered by such company at or prior to the Closing pursuant to Section 3.2 hereof.
Appears in 1 contract
Conditions to Obligations of the Purchaser. The obligations of the Purchaser under this Agreement to consummate the transactions contemplated by this Agreement shall be purchase of the Assets are subject to the fulfillment on or waiver, at or prior to before the Closing, Closing Date of each of the following conditions:
7.3.15.1. the Except as disclosed in writing to Purchaser and not disapproved by them, all representations and warranties of Sellers the Seller and the Partners contained in Section 3 this Agreement shall (except as affected by the transactions contemplated by this Agreement and except to the extent made as of a specified date) be true and correct in all material respects on the Closing Date with the same effect as of the date hereof though such representations and warranties had been made on and as of the Closing as though restated on Date, and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as all of the Closing Date shall be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations actions of Seller and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation each of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in this Agreement Partners to be complied with by Sellers performed on or before the Closing (including, without limitation, all obligations which Sellers would be required Date pursuant to perform at the Closing if the transactions contemplated hereby were consummated) terms hereof shall have been complied with duly performed in all material respects;.
7.3.35.2. there Purchaser shall have received certificates, dated as of the Closing Date, of Seller and each of the Partners to the effect that the conditions specified in Section 5.1 have been fulfilled.
5.3. Purchaser shall have received an opinion of counsel to Seller and the HD-Related Partners, and an opinion of counsel to Phemus in substantially the form of Exhibits "D-1" and "D-2" hereto.
5.4. Neither the Assets nor the Premises shall have suffered material damage by fire, flood or other casualty.
5.5. There shall be no action, suit, proceeding pending or threatened litigation or any investigation by any governmental body or before any courtlegal, administrative agency or other Governmental Authorityarbitration proceeding pending or threatened that may have a material adverse effect of the operation of the Assets by THD.
5.6. No governmental inquiry, action or proceeding shall have been asserted, threatened or initiated to restrain, prohibit or invalidate enjoin the transactions contemplated by this Agreement.
5.7. The Seller shall have delivered to THD at the Premises all of the records referred to in Section 1.1(d) above.
5.8. The Seller shall have delivered to THD assignment agreements in the form of Exhibits "E", "F" and "G" attached hereto with respect to the Premises, and the landlord's Consent in the form of Exhibit "H" with respect to 0000 Xxxxxxx Xxxxxxxxx.
5.9. The Seller shall have executed a xxxx of sale and assignment in substantially the form of Exhibit "I" transferring all of the Assets to THD.
5.10. Each of Xxxx Xxxxxxx, Xxxxxxx Xxxxx and Xxxxx Xxxxxxxx each shall have entered into an Employment Agreement with Purchaser effective as of the Closing Date.
5.11. The Seller and Xxxx shall have entered into the Registration Rights Agreement in substantially the form of Exhibit "C".
5.12. Seller and each of the Partners shall release any security interest any of them may have in any of the Assets.
5.13. Seller shall have satisfied the rights or options of Xxxxxxx Xxxxxxx to acquire equity interests in Seller or profit participations in Seller's business, evidenced by a certificate executed by Xxxxxxx Xxxxxxx in form satisfactory to Purchaser.
5.14. The Seller, the HD-Related Partners and Phemus shall have delivered to the Purchaser its or his respective 21 Noncompetition Agreement in substantially the form of Exhibits "J" and "K" hereto.
5.15. The Partners shall have delivered to the Purchaser the Indemnification Agreement in substantially the form of Exhibit "L" hereto.
5.16. As of the Closing, no event shall have occurred and no circumstance shall exist which may materially and adversely affect or, in the right reasonable judgment of the Sellers to sell, transfer or assign to the Purchaser, threaten to affect the Seller's business, assets, properties, condition or the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoingprospects.
Appears in 1 contract
Samples: Purchase and Sale Agreement (HDZ Digital Limited Partnership)
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement at the Closing shall be subject to the fulfillment or waiverfulfillment, at or prior to the Closing, of each of the following conditions:
7.3.1. (a) Without giving effect to any matter disclosed to Purchaser between the date hereof and the Closing Date, the representations and warranties of Sellers Seller contained in Section 3 this Agreement shall be true and correct in all material respects as of the date hereof Closing Date with the same force and effect as if made as of the Closing as though restated on and as of such dateDate, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in other than such representations and warranties as are made as of the Closing Date another date, which shall be disregarded true and correct as of such date; provided, however, that if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation portion of any rights and remediesrepresentation or warranty is already qualified by materiality, including under for purposes of determining whether this Section 9 hereof, that the Purchaser may have 6.2(a) has been satisfied with respect to any such inaccuracies whether portion of such representation or not they constitute a Material Adverse Effect;
7.3.2. warranty, such portion of such representation or warranty as so qualified must be true and correct in all respects; and all the agreements, undertakings, covenants and obligations contained in this Agreement to be complied with by Sellers Seller on or before the Closing (including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) shall have been complied with in all material respects;, and Purchaser shall have received a certificate of Seller to such effect signed by a duly authorized officer of Seller.
7.3.3. there (b) No Governmental or Regulatory Authority shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, injunction or other order (whether temporary, preliminary or permanent) which is in effect and has the effect of making the transactions contemplated by this Agreement illegal or otherwise restraining or prohibiting consummation of such transactions or which would have a material adverse effect on the Business or Condition of the Division; in addition, no Action or Proceeding before any Governmental or Regulatory Authority shall be pending or threatened and no action, suit, proceeding or investigation by any Governmental or before Regulatory Authority shall have commenced seeking to restrain or prohibit (or questioning the validity or legality of) the transactions contemplated by this Agreement or seeking to restrict in any courtmaterial respect the effective operation of the Business after the Closing or seeking material damages from Seller or seeking damages from the Purchaser in connection with this Agreement, administrative agency which Purchaser, in good faith and with the advice of counsel, believes makes it undesirable to proceed with the consummation of the transactions contemplated hereby; provided, however, that the parties hereto shall use their reasonable best efforts to have any such order or injunction vacated.
(c) Purchaser shall have received a Xxxx of Sale and Assignment in the form attached hereto as Exhibit A.
(d) All governmental orders, approvals and consents to the transactions contemplated by this Agreement shall have been obtained and be in effect on the Closing Date, in form and substance reasonably acceptable to the Purchaser. All statutory periods in connection with any Environmental Laws (to the extent applicable) for the purposes of the consummation of the transactions contemplated hereby shall have lapsed prior to the Closing Date, and such approvals as shall have been obtained shall not impose upon Purchaser, the Division or the transactions contemplated hereby any conditions or other Governmental Authorityrequirements which would cause any thereof any material additional costs or materially interfere with the continued operations of the Business or the business of Purchaser, as currently conducted or materially and adversely affect the Business or Condition of the Division.
(e) Purchaser shall have received the third party consents, approvals, authorizations or actions to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect if any, in form and substance reasonably satisfactory to the right Purchaser from the parties listed in Section 6.2(d) of the Sellers Disclosure Schedule.
(f) Purchaser shall have received from Sims, Moss, Xxxxx & Xxxxx LLP, counsel to sellSeller, transfer or assign a legal opinion addressed to Purchaser and dated the Closing Date, in the form of Exhibit F attached hereto.
(g) The Purchaser shall have received a Certificate of Good Standing for Seller from the appropriate official of the State of Delaware, dated as of a date not earlier than ten Business Days prior to the PurchaserClosing Date.
(h) Since the date of this Agreement, no events or circumstances shall have occurred which, individually or in the right aggregate, have had or may be reasonably expected to have a material adverse effect on the Business or Condition of the Division.
(i) Purchaser to purchase shall have received a certificate of an officer of Seller certifying the names and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any signatures of the foregoingofficers of Seller authorized to sign any document required to be delivered by Seller hereunder.
(j) Seller shall have executed and delivered to Purchaser the Non-Competition Agreement in the form attached hereto as Exhibit B.
(k) Each of Xxxxx Xxxxx, Xxx Xxxxxx and at least three of the other four Employees shall have executed and delivered an Employment Agreement in the form of Exhibit C attached hereto.
(l) Seller shall have executed and delivered the Registration Rights Agreement in the form attached hereto as Exhibit D.
(m) Seller shall have executed and delivered the Service and Referral Agreement in the form attached hereto as Exhibit G.
(n) Seller shall have executed and delivered the VAR Agreement in the form attached hereto as Exhibit H.
(o) All Liens on the Purchased Assets, other than Permitted Liens, shall have been fully satisfied, terminated and discharged as evidenced by releases or satisfactions satisfactory to Purchaser.
(p) All proceedings, corporate or otherwise, taken by Seller in connection with the transactions contemplated hereby and all instruments and documents incident thereto shall be reasonably satisfactory in form and substance to Purchaser and its counsel.
Appears in 1 contract
Samples: Asset Purchase Agreement (Homecom Communications Inc)
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall Contemplated Transactions will be subject to the fulfillment or waiver, at or prior to the Closing, Closing of each of the following additional conditions:
7.3.1. (a) Each of the representations and warranties of Sellers contained the Shareholder, the Company and the Noteholder set forth in Section 3 shall this Agreement that is qualified by materiality will be true and correct at and as of the Closing Date as if made at and as of the Closing Date (without giving effect to any Disclosure Schedule Supplement) and each of such representations and warranties that is not so qualified will be true and correct in all material respects as of the date hereof at and as of the Closing Date as though restated on if made at and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all such inaccuracies(without giving effect to any Disclosure Schedule Supplement), considered collectively, do not constitute a Material Adverse Effect except (it being understood i) to the extent that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be refer specifically to an earlier date, in limitation of any rights which case such representations and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in this Agreement to be complied with by Sellers on or before the Closing (including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) shall warranties will have been complied with in all material respects;
7.3.3. there shall be no actiontrue and correct as of such earlier date, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions (ii) for changes contemplated by this Agreement, or (iii) for circumstances under which may affect the right breach of a representation or warranty not qualified by Material Adverse Effect would not and would not reasonably be expected to have a Material Adverse Effect, and the Purchaser will have received a certificate signed on behalf of the Sellers Company by the President of the Company and on behalf of the Shareholder by the Trustee and on behalf of the Noteholder by an authorized officer of the Noteholder to sellsuch effect.
(b) The Shareholder, transfer the Noteholder and the Company will have performed or assign complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by the Company and the Shareholder and the Noteholder at or prior to the PurchaserClosing Date; provided that failure to perform or comply with any obligation or covenant set forth in Section 6.2 or Section 6.3 shall not constitute the non-satisfaction of this condition unless such failure would or would reasonably be expected to have a Material Adverse Effect, or and the right Purchaser will have received a certificate signed on behalf of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated Company by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any President of the foregoingCompany, on behalf of the Shareholder by the Trustee and on behalf of the Noteholder by an authorized officer of the Noteholder to such effect.
Appears in 1 contract
Samples: Stock Purchase Agreement (Worthington Industries Inc)
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Purchaser’s waiver, at or prior to the Closing, of each of the following conditions:
7.3.1. the representations (a) Representations and warranties of Sellers Seller contained in Section 3 this Agreement, the Related Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all material respects on and as of the date hereof and as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all with the same effect as though made at and as of such inaccuracies, considered collectively, do not constitute a Material Adverse Effect date (it being understood that any materiality qualification contained in such except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be disregarded for this purposedetermined as of that specified date in all respects). The foregoing .
(b) Seller shall not be have duly performed and complied in limitation of any rights all material respects with all agreements and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in required by this Agreement and each of the Related Documents to be performed or complied with by Sellers it prior to or on or before the Closing Date.
(including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummatedc) No Proceeding shall have been complied with in all material respects;
7.3.3commenced against Purchaser or Seller, which would prevent the Closing. there No injunction or restraining order shall be no action, suit, proceeding or investigation have been issued by or before any court, administrative agency or other Governmental Authority, to restrainand be in effect, prohibit which restrains or invalidate prohibits any transaction contemplated hereby.
(d) There shall not have occurred any event that resulted in a material adverse effect on the transactions contemplated by this AgreementBusiness or the Acquired Assets, or which may affect that could reasonably be expected to have, individually or in the right of aggregate, a material adverse effect on the Sellers Business or the Acquired Assets.
(e) The Purchaser shall have received financing, on terms acceptable to sellPurchaser in its sole discretion, transfer or assign that is sufficient to fund the Purchase Price and all other Purchaser transaction expenses related to the negotiation, execution and closing of this Agreement (as determined by Purchaser, or ).
(f) Seller shall have delivered to Purchaser the right of the Purchaser to purchase documents and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting other deliveries set forth in concert with any of the foregoingSection 3.02.
Appears in 1 contract
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement Purchase shall be subject to the fulfillment or waiver, at on or prior to the Closing, Closing Date of each of the following conditions:
7.3.1. (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) All requisite corporate proceedings and approvals of Purchaser in connection with the consummation of the transactions contemplated to be consummated at Closing shall have been obtained on or prior to the Closing Date;
(c) Each of the representations and warranties of Sellers the Company contained in Section 3 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 the date hereof and as of the Closing as though restated on and as of such date) and the Company shall have delivered to the Purchaser a certificate, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of dated the Closing Date shall be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained and signed by the Company to the effect set forth in such representations and warranties shall be disregarded for this purposeSection 4.1(c). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the (d) The Company in all material respects shall have performed, satisfied and complied with each of its covenants and obligations contained agreements set forth in this Agreement to be performed, satisfied and complied with by Sellers on prior to or before at Closing;
(e) Purchaser and the Closing (including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) Company shall have been complied with in all material respects;
7.3.3. there executed a mutually acceptable registration rights agreement that shall be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect the right of the Sellers to sell, transfer or assign to the Purchaser, or the right of grant the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoing.opportunity to
Appears in 1 contract
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be are subject to the satisfaction or fulfillment or waiver, at or prior to the Closing, of each Closing of the following conditions, any of which may be waived in whole or in part by the Purchaser in writing:
7.3.1. the (a) All representations and warranties of Sellers the Seller contained in Section 3 this Agreement shall be true and correct in all material respects at and as of the Closing with the same effect as though such representations and warranties were made at and as of the Closing (other than any representation or warranty that is expressly made as of a specified date, which shall be true and correct in all material respects as of the such specified date hereof only).
(b) The Seller shall have performed and as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies complied in such representations and warranties as of the Closing Date shall be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have material respects with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. all the covenants and obligations contained in agreements required by this Agreement to be performed or complied with by Sellers on it at or before prior to the Closing Closing.
(including, without limitation, all obligations which Sellers would be required to perform at c) All applicable waiting periods (and any extensions thereof) under the Closing if the transactions contemplated hereby were consummated) HSR Act shall have expired or otherwise been complied with in all material respects;terminated.
7.3.3. there (d) There shall be in effect no action, suit, proceeding Law or investigation injunction issued by a court of competent jurisdiction making illegal or before any court, administrative agency otherwise prohibiting or other Governmental Authority, to restrain, prohibit or invalidate restraining the consummation of the transactions contemplated by this Agreement, or which may affect .
(e) The Seller shall have delivered to the right Purchaser all of the Sellers certificates, instruments and other documents required to sell, transfer be delivered by the Seller at or assign prior to the Purchaser, or Closing pursuant to Section 3.2 hereof.
(f) The FCC shall have granted its consent to the right FCC Applications.
(g) All required consents to the assignment of the Purchaser Primary Television Affiliation Agreement dated December 20, 1996, between the Seller and American Broadcasting Companies, Inc., as amended, with respect to purchase television station KAKE-TV shall have been obtained.
(h) The Seller shall be the holder of the Station Licenses and assumeall other material government licenses, permits and other authorizations listed on Schedule 4.21, and there shall not have been any modification of any of such licenses, permits and other authorizations which has a Material Adverse Effect. No proceeding shall be pending (other than rule making proceedings of general applicability to the Assets television broadcast industry, applications at the FCC that propose to make changes to broadcast facilities other than the Stations in the markets where the Stations are located or any material portion thereof, at application that could result in the Closing, which has not been initiated by addition of video services in those markets or could have an impact on the Purchaser or its Affiliates, family members, representatives or any party acting in concert with broadcast signal of the any of the foregoingStations) which seeks or the effect of which could be to revoke, cancel, fail to renew, suspend or modify adversely in a material way the Station Licenses or any other material government licenses, permits or other authorizations.
Appears in 1 contract
Samples: Asset Purchase Agreement (Benedek Communications Corp)
Conditions to Obligations of the Purchaser. The obligations obligation of the Purchaser to consummate the transactions contemplated by this Agreement shall be are subject to the fulfillment satisfaction, on or waiver, at or prior to before the ClosingClosing Date, of each of the following conditions, any or all of which may be waived in whole or in part by the Purchaser:
7.3.15.2.1. No action or proceeding shall have been brought or threatened before any court or administrative agency to prevent the consummation or to seek damages in a material amount by reason of the transactions contemplated hereby, and no governmental authority shall have asserted that the within transactions shall constitute a violation of law or give rise to material liability on the part of the Selling Shareholder or the Company; and
5.2.2. The representations and warranties of Sellers contained in Section 3 of this Agreement and in any certificate, instrument, schedule, agreement or other writing delivered by or on behalf of the Selling Shareholder and the Company in connection with the transactions contemplated by this Agreement shall be true and correct in all material respects as of the date hereof (except for representations and warranties which are by their terms qualified by materiality, which shall be true, correct and complete in all respects) when made and shall be deemed to be made again at and as of the Closing as though restated on Date and shall be true at and as of such date, provided that solely time in all material respects (except for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date which are by their terms qualified by materiality, which shall be disregarded if true, correct and complete in all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purposerespects); and
5.2.3. The foregoing Selling Shareholder and the Company shall not be in limitation of any rights have performed and remedies, including under Section 9 hereof, that the Purchaser may have complied with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants all material agreements and obligations contained in conditions required by this Agreement to be performed or complied with by Sellers the Selling Shareholder and the Company prior to or on or before the Closing (including, without limitation, all obligations which Sellers would be required to perform at Date; and
5.2.4. The Selling Shareholder and the Closing if the transactions contemplated hereby were consummated) Company shall have been complied with in all material respects;executed this Agreement and delivered the same to Purchaser; and
7.3.35.2.5. there The Company shall be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect the right of the Sellers to sell, transfer or assign have provided to the Purchaser, or Purchaser a certificate of good standing from the right secretary of state from the Purchaser to purchase and assume, state in which the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoingCompany is incorporated.
Appears in 1 contract
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or the Purchaser’s waiver, at or prior to the Closing, of each of the following conditions:
7.3.1. (a) Other than the Fundamental Representations, the representations and warranties of the Sellers contained in Section 3 this Agreement shall be true and correct in all respects on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects) except where the failure of such representations and warranties to be true and correct (in each case disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. The Fundamental Representations shall be true and correct in all material respects as of the date hereof on and as of the Closing Date with the same effect as though restated on made at and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such date (except those representations and warranties that address matters only as of a specified date, the Closing Date accuracy of which shall be disregarded if determined as of that specified date in all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect respects).
(it being understood that any materiality qualification contained b) The Sellers shall have duly performed and complied in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have all material respects with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the all covenants and obligations contained in required by this Agreement to be performed or complied with by Sellers them prior to or on or before the Closing Date.
(including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummatedc) No Action shall have been complied with in all material respects;commenced against the Purchaser, any Seller, the Sellers’ Representative or any Group Company, which would prevent the Closing.
7.3.3. (d) From the Effective Date, there shall be no actionnot have occurred any Material Adverse Effect.
(e) Except as set forth on Section 8.2(e) of the Disclosure Schedule, suitthe Sellers shall have delivered evidence of the termination of all Related Party Contracts, proceeding effective as of the Closing, without any further Liability or investigation obligation on the part of the Purchaser or any Group Company, in form and substance reasonably satisfactory to the Purchaser.
(f) The Purchaser shall have received a certificate, dated the Closing Date and signed by or before any courtthe Sellers and the Sellers’ Representative, administrative agency or other Governmental Authoritythat each of the conditions set forth in Section 8.2(a) and Section 8.2(b) have been satisfied.
(g) The Purchaser shall have obtained consents of its lender(s), and such equity and debt financing, on terms and conditions satisfactory to restrainthe Purchaser, prohibit or invalidate as the Purchaser shall, in its reasonable discretion, deem necessary to enable the Purchaser to consummate the transactions contemplated by this AgreementAgreement and the Ancillary Agreements on the terms and subject to the conditions set forth herein and therein, or which may affect the right and to enable it to make all payments under Section 2.5 and pay all of the Sellers Purchaser’s and its Affiliates’ fees and expenses associated with the transactions contemplated by this Agreement and the Ancillary Agreements.
(h) The Purchaser shall have received a revised Employee Census Report, updated as of the last payroll date immediately prior to sellthe Closing Date.
(i) Each of Xxxxxx X. Xxxxxx, transfer or assign Xxxx Xxxxxx and Xxxxxxx X. XxXxxxxxx, III shall have entered into an Employment Agreement with Banker Steel, in form and substance reasonably satisfactory to the Purchaser, or the right effective as of the Purchaser Closing Date.
(j) The Sellers shall have delivered (or caused to purchase be delivered) the items set forth in Section 2.4.
(k) Banker Family Trust and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any shall have agreed upon a final form of the foregoingTrust Note.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Hc2 Holdings, Inc.)
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or the Purchaser's waiver, at or prior to the Closing, of each of the following conditions:
7.3.1. (a) Each of the representations and warranties of Sellers the Seller contained in Section 3 this Agreement, the Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality) or in all material respects (in the case of any representation or warranty not qualified by materiality) on and as of the date hereof and as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all with the same effect as though made at and as of such inaccuracies, considered collectively, do not constitute a Material Adverse Effect date (it being understood that any materiality qualification contained in such except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be disregarded for this purposedetermined as of that specified date in all respects). .
(b) The foregoing Seller shall not be have duly performed and complied in limitation of any rights and remediesall material respects with all agreements, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in conditions required by this Agreement and each of the Transaction Documents to be performed or complied with by Sellers the Seller prior to or on or before the Closing Date.
(including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummatedc) No Action shall have been complied with in all material respects;
7.3.3commenced against the Seller or Corporation which would prevent the Closing. there No injunction or restraining order shall be no action, suit, proceeding or investigation have been issued by or before any court, administrative agency or other Governmental Authority, to restrainand be in effect, prohibit which restrains or invalidate prohibits any transaction contemplated hereby.
(d) The Purchaser shall have received a certificate, dated the transactions contemplated Closing Date and signed by this Agreementthe Seller, or which may affect the right that each of the Sellers to sellconditions set forth in Section 6.2(a) and Section 6.2(b) have been satisfied.
(e) The arrangements between the Corporation, transfer or assign to on the Purchaserone hand, and any Affiliate of the Corporation or the right Seller (including Monroe Capital, LLC), on the other hand, shall have been terminated.
(f) The Purchaser shall have received from the Seller each of the Purchaser other items to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated be delivered by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoingSeller pursuant to Section 2.2(c).
Appears in 1 contract
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by under this Agreement shall be are subject to the fulfillment satisfaction or waiver, waiver in writing at or prior to the Closing, of each Closing Date of the following conditions:
7.3.1. the (a) The representations and warranties made by each of the Sellers contained and the Company in Section 3 this Agreement shall be true and correct in all material respects respects, except that the representations and warranties made in Sections 3.2, 3.3 and 4.1 and those representations, warranties, covenants and agreements made by each of the Sellers and the Company in this Agreement that are qualified or limited by materiality or Company Material Adverse Effect which shall be true and correct, in each case as of the date hereof of this Agreement and as of the Closing Date with the same effect as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in if such representations and warranties had been made at and as of the Closing Date without giving effect to any Supplemental Disclosures that were delivered by the Company or the Sellers' Representative to the Purchaser prior to Closing in accordance with Section 6.7. Each of the Sellers and the Company shall have performed and complied in all material respects with all obligations required to be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for performed or complied with by them under this purpose)Agreement at or prior to the Closing Date. The foregoing Purchaser shall not have received a certificate signed by the Sellers' Representative and by the Chief Executive Officer and the Chief Financial Officer of the Company to the effect of this Section 8.2(a).
(b) Each document, certificate or other delivery required to be in limitation delivered pursuant to Section 2.2 must have been delivered, and each of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the other covenants and obligations contained in this Agreement required to be performed or complied with by Sellers the Company or any Seller on or before prior to Closing set forth in Article 6 must have been performed and complied with in all respects.
(c) Immediately after satisfaction by the Closing (including, without limitationPurchaser of Section 6.15 hereof, all obligations which Sellers would be required outstanding indebtedness for borrowed money of the Company shall have been repaid or satisfied in full, and any Liens on the assets of the Company shall have been released except for those Liens set forth on Schedule 2.2(b)(iv), on terms satisfactory to perform at the Closing if Purchaser, and the transactions contemplated hereby were consummatedPurchaser shall have received evidence thereof reasonably satisfactory to the Purchaser and its counsel.
(d) Subject to Section 6.16, all consents and waivers set forth on Schedule 3.11(c) shall have been complied with received from the applicable third party, in all material respects;
7.3.3. there shall be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect the right of the Sellers to sell, transfer or assign form and substance reasonably satisfactory to the Purchaser, without any loss of benefits or rights to the right Company, it being understood however that any such consent or waiver shall not be deemed satisfactory or acceptable if (i) any such consent or waiver requires the payment of additional costs, expenses or fees, which, individually or in the aggregate, are not immaterial, and (ii) any such consent or waiver contains a provision, term or condition which would (A) in the Purchaser's reasonable judgment, be deemed to be excessive or unfair or (B) reasonably be deemed to have adversely affected the benefits expected to be obtained by the Purchaser from the transactions contemplated hereby.
(e) The Management Sellers and MS shall have executed and delivered the New Employment Agreements as of the Closing Date.
(f) Subject to the delivery of the Option Cash Out Amount by the Purchaser to purchase the Company, all Options shall have been cashed out as contemplated in Section 2.3(a)(v), all Warrants shall have been canceled and/or cashed out in accordance with Section 3.2(b) and assume, the Assets or any material portion thereof, at the Closing, which has not Company's 1999 Plan shall have been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert terminated.
(g) Executed signature pages with any respect to this Agreement shall have been received from each of the foregoingNew Sellers.
Appears in 1 contract
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be are subject to the satisfaction or fulfillment or waiver, at or prior to the Closing, of each Closing of the following conditions, any of which may be waived in whole or in part by the Purchaser in writing:
7.3.1. the (a) All representations and warranties of Sellers Lee-XXXC and any Acquired Company contained in Section 3 this Agreement shall be true and correct in all material respects at and as of the Closing with the same effect as though such representations and warranties were made at and as of the Closing (except for changes permitted or contemplated by this Agreement and except for any representation or warranty that is expressly made as of a specified date, which shall be true and correct in all material respects as of the such specified date hereof only).
(b) Lee-XXXC and as of the Closing as though restated on each Acquired Company shall have performed and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies complied in such representations and warranties as of the Closing Date shall be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have material respects with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. all the covenants and obligations contained in agreements required by this Agreement to be performed or complied with by Sellers on it at or before prior to the Closing Closing.
(includingc) All applicable waiting periods (and any extensions thereof) under the HSR Act shall have expired or otherwise been terminated.
(d) The FCC shall have granted its consent to the FCC Transfer Application, without limitationsuch consent shall have become a Final Order, all obligations which Sellers would and any conditions set forth in such consent shall have been satisfied.
(e) There shall be required to perform at in effect no Law or injunction issued by a court of competent jurisdiction making illegal or otherwise prohibiting or restraining the Closing if consummation of the transactions contemplated hereby were consummatedby this Agreement.
(f) Lee-XXXC and each Acquired Company shall have been complied with in delivered to the Purchaser all material respects;of the certificates, instruments and other documents required to be delivered by such company at or prior to the Closing pursuant to Section 3.2 hereof.
7.3.3. there (g) Lee-XXXC shall be no action, suit, proceeding have obtained prior to Closing the written consents or investigation by or before any court, administrative agency or other Governmental Authority, waivers to restrain, prohibit or invalidate the transactions contemplated by this Agreement, in form reasonably satisfactory to Purchaser's counsel and without any modification or which may affect the right of the Sellers condition materially adverse to sell, transfer or assign to the Purchaser, or the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoingLee-XXXC Stations or Acquired Companies' Stations, which are required under (i) each Material Contract for each transmitter, antenna (including each satellite and translator antenna or transmitter), office and studio site, (ii) unless waived under or by reason of the provisions of Section 6.16, the network affiliation agreement for each of the Lee-XXXC Stations and each of the Acquired Companies' Stations, and (iii) the programming agreements identified on SCHEDULE 7.1(g).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Emmis Communications Corp)
Conditions to Obligations of the Purchaser. The obligations obligation of the Purchaser to consummate effect the transactions contemplated by this Agreement shall be Closing is subject to the fulfillment satisfaction or waiver, at or prior waiver delivered to the Closing, Sellers of each of the following conditionsconditions precedent:
7.3.1. (a) The representations and warranties of the Sellers set forth in this Agreement and in the Seller Documents that are qualified as to materiality shall be true and correct and the representations and warranties of the Sellers contained in Section 3 that are not qualified as to materiality shall be true and correct in all material respects as of the date hereof and respects, in each case, as of the Closing as though restated on made as of the Closing; 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 date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as .
(b) Each of the Closing Date shall be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in this Agreement to be complied with by Sellers on or before the Closing (including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) shall have been complied with performed and complied, in all material respects;
7.3.3. there shall , with its agreements and covenants (in each case, disregarding any materiality qualifiers contained therein) required to be no action, suit, proceeding performed or investigation by complied with under this Agreement as of or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect the right of the Sellers to sell, transfer or assign prior to the Purchaser, or the right of the Purchaser to purchase and assume, the Assets or any material portion thereofClosing.
(c) The Title Company shall, at the Closing, be irrevocably and unconditionally committed to issue each of the Title Policies upon payment of the premium and the application of the Purchase Price to the repayment of any Indebtedness encumbering the Assets , and such Title Policies shall not contain any exceptions to title other than the standard preprinted exceptions (unless the Purchaser pays for extended coverage, in which has case the standard preprinted exceptions shall not been initiated by appear in the Title Policy) and the Permitted Liens.
(d) Each of the Sellers shall have executed and delivered to the Purchaser or its Affiliates, family members, representatives or any party acting the Title Company their respective Seller Documents and provided the Purchaser the items listed in concert with any of the foregoingSection 9.2(a).
Appears in 1 contract
Conditions to Obligations of the Purchaser. The obligations obligation of the Purchaser to consummate the transactions contemplated by this Agreement shall be is subject to the fulfillment satisfaction (or waiver, at or prior to wavier by the Closing, of each Purchaser) of the following additional conditions:
7.3.1. (a) Other than the representations and warranties of the Sellers and the Principals contained in Section 3 5.1, Section 5.2, Section 5.6 and Section 5.21, the representations and warranties of the Sellers and the Principals set forth in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any 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 as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all with the same effect as though made at and as of such inaccuracies, considered collectively, do not constitute a Material Adverse Effect date (it being understood that any materiality qualification contained in such except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be disregarded for this purposedetermined as of that specified date). The foregoing representations and warranties of the Sellers and the Principals contained in Section 5.1, Section 5.2, Section 5.6 and Section 5.21 shall not be true and correct in limitation all respects on and as of any rights the date hereof and remedieson and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, including under Section 9 hereofthe accuracy of which shall be determined as of that specified date in all respects).
(b) The Sellers and the Principals shall have duly performed and complied in all material respects with all agreements, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by Sellers on it as of or before prior to the Closing Date.
(including, without limitationc) The Sellers and the Principals shall have obtained at their own expense (and shall have provided executed copies thereof to the Purchaser) all Required Consents, all obligations of which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) shall have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding in full force and effect.
(d) No Legal Proceeding (i) challenging or investigation by or before any court, administrative agency or other Governmental Authority, seeking to restrain, prohibit or invalidate prevent the consummation of the transactions contemplated by this Agreement, or which may affect (ii) that would cause the right of the Sellers transactions contemplated by this Agreement to sell, transfer or assign to the Purchaserbe rescinded following consummation, or (iii) that would affect adversely the right of the Purchaser to purchase and assumeown, operate or control any of the Assets Purchased Assets, or any material portion thereofto conduct the Business as currently conducted, at following the Closing, and no such judgment, order, decree, stipulation or injunction shall be in effect.
(e) No Material Adverse Effect shall have occurred, and no event or circumstance shall have occurred or arisen that would reasonably be expected to result in a Material Adverse Effect.
(f) No data breach or compromise of any Seller’s information security systems shall have occurred.
(g) The Sellers and the Principals shall have duly executed and delivered each Transaction Document (other than this Agreement) to which has not been initiated it is a party and such other documents or deliverables required of it in connection with the Closing under Section 4.2.
(h) The Purchaser shall have received all Permits that are necessary for it to conduct the Business as conducted by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any Sellers as of the foregoingClosing Date.
(i) The Sellers shall have delivered to the Purchaser payoff letters with respect to all indebtedness of the Sellers and documents evidencing the release or termination of all Liens on the Purchased Assets, and copies of UCC termination statements to be filed upon the Closing with respect to all UCC financing statement evidencing Liens.
(j) The Sellers shall have terminated the Franchise Agreements and delivered evidence of such terminations to the Purchaser.
(k) The Sellers shall have filed the Application for Use of Management Company with the Pennsylvania Liquor Control Board and the parties shall have entered into an Interim Management Agreement for each Pennsylvania location, the form of which is attached hereto as Exhibit D.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ruths Hospitality Group, Inc.)
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or the Purchaser’s waiver, at or prior to the Closing, of each of the following conditions:
7.3.1. (a) The Company shall have received all consents, authorizations, orders and approvals from the representations Commission and warranties any other Governmental Authorities necessary for the consummation of Sellers contained the transactions contemplated hereby, in each case, in form and substance reasonably satisfactory to the Purchaser, and no such consent, authorization, order and approval shall have been revoked.
(b) This Agreement and each of the other Transaction Documents required to be delivered pursuant to Section 3 2.3(b) above shall have been executed and delivered by the Company and the other parties thereto and true and complete copies thereof shall have been delivered to the Purchaser.
(c) The Purchaser shall have completed its due diligence review, including a legal and financial review of the Company and its business, which review shall be satisfactory to the Purchaser in its sole and absolute discretion.
(d) The Purchaser shall have received a certificate of the Secretary (or equivalent officer) of the Company certifying:
(i) that attached thereto are true and correct in complete copies of all material respects as resolutions and other consents adopted by the board of directors of the date hereof Company authorizing and as approving the execution, delivery, filing and performance of this Agreement and the other Transaction Documents and the consummation of the Closing as though restated on transactions contemplated hereby and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in this Agreement to be complied with by Sellers on or before the Closing thereby (including, without limitation, a resolution of the board of directors to recommend to the stockholders of the Company that they approve the Charter Amendment, to call a special meeting of the stockholders for purposes of approving the Charter Amendment and to approve all obligations which Sellers would be required to perform at filings and notifications with the Commission, any Trading Market or any other Governmental Authority necessary in connection with the approval of the Charter Amendment), and that all such resolutions and consents are in full force and effect as of the Closing if and are all the resolutions and consents adopted in connection with the transactions contemplated hereby were consummatedand thereby;
(ii) that attached thereto are true and complete copies of the certificate of incorporation and by-laws of the Company, each as amended and in effect as of the date thereof, and that such organizational documents are in full force and effect as of the Closing; and
(iii) the names and signatures of the officers of the Company authorized to sign this Agreement, the other Transaction Documents and the other documents to be delivered hereunder and thereunder.
(e) The Purchaser shall have executed a resolution, effective as of the Closing Date, appointing five (5) of the seven (7) members of the board of directors of the Company.
(f) The Company shall have duly adopted the Certificate of Designation, which shall have been filed with the Secretary of State of Delaware and become effective under the Delaware General Corporation Law on or prior to the Closing and which shall remain in full force and effect as of the Closing, and the Purchaser shall have received a certificate of the Secretary of State of Delaware certifying that the Certificate of Designation has been filed and is effective. The Certificate of Designation shall provide, among other things, that each share of Series D Preferred Stock shall be convertible into 1,222 shares of Common Stock, as more particularly set forth in the Certificate of Designation.
(g) The Company shall have duly adopted the Charter Amendment, which shall have been filed with the Secretary of State of Delaware and become effective under the Delaware General Corporation Law on or prior to the Closing and which shall remain in full force and effect as of the Closing, and the Purchaser shall have received a certificate of the Secretary of State of Delaware certifying that the Charter Amendment has been filed and is effective.
(h) Each executive officer and director of the Company (and their respective family members and Affiliates to the extent they hold shares of capital stock of the Company) shall have executed and delivered to the Purchaser a letter agreement pursuant to which such Person agrees to vote all of his or her respective shares of Common Stock beneficially owned in favor of the Charter Amendment.
(i) All shares of Series C Preferred Stock held by any officer, director or executive of the Company (or their respective Affiliates and family members) shall have been complied with converted to shares of Common Stock at a conversion price of $0.05 per share and the Company shall have delivered evidence (satisfactory to the Purchaser) of such conversion to the Purchaser.
(j) Any sales or consulting arrangements between the Company and any officer, director, executive or other insider (inclusive of Mxx Xxxxxx) or any Affiliate or family member thereof shall have been terminated, at no cost to the Company, by the mutual written agreement of the Company and the party(ies) thereto and evidence of such terminations (satisfactory to the Purchaser) shall have been delivered to the Purchaser.
(k) Any amendments or terminations of existing employment arrangements between the Company and any officer, director, executive, or other insider or any Affiliate or family member required by the Purchaser shall have been completed upon terms and conditions acceptable to the Purchaser and evidence of such amendments or terminations (satisfactory to the Purchaser) shall have been delivered to the Purchaser.
(l) The Company shall have delivered to the Purchaser a good standing certificate (or its equivalent) for the Company from the Secretary of State of Delaware.
(m) The Company shall have delivered, or caused to be delivered, to the Purchaser each of the following, each in all material respectsform and substance satisfactory to the Purchaser:
(i) stock certificates evidencing the Shares;
7.3.3. there shall be no action(ii) an opinion of legal counsel to the Company, suitdated as of the Closing Date;
(iii) an executed Indemnification Agreement, proceeding dated as of the Closing Date, substantially in the form Exhibit B attached hereto (“D&O Indemnification Agreement”), for each of the Purchaser’s representatives designated to the board of directors of the Company; and
(iv) such other documents or investigation by or before any court, administrative agency or other Governmental Authority, instruments as the Purchaser reasonably requests and are reasonably necessary to restrain, prohibit or invalidate consummate the transactions contemplated by this Agreement.
(n) The Company shall have fully complied with, or which may affect obtained appropriate consents or waivers with respect to, its obligations pursuant to any outstanding rights of first refusal, rights of first offer, pre-emptive rights or anti-dilution rights or redemption or repurchase rights.
(o) The Company shall have paid the right of the Sellers to sell, transfer or assign to the Purchaser, or the right fees and expenses of the Purchaser pursuant to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any terms of the foregoingSection 7.1 below.
Appears in 1 contract
Samples: Securities Purchase Agreement (GRANDPARENTS.COM, Inc.)
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be are subject to the fulfillment or waiver, at or prior to the Closing, of each satisfaction of the following conditions, any one or more of which may be waived in writing by the Purchaser:
7.3.1. (a) all necessary filings with and consents, approvals, licenses, permits, and orders of any Governmental Authority required by Law for the consummation of the transactions contemplated in this Agreement shall have been made and obtained;
(b) (i) the representations set forth in Sections 3.01, 3.02, 3.04, 3.06, 3.07 and warranties of Sellers contained in Section 3 3.11 shall be true and correct in all material respects as of the date hereof of this Agreement and as of the Closing Closing, as though restated on if made at and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in time (other than such representations and warranties that expressly address matters only as of a certain date, which need only be true as of such certain date) and (ii) all other representations and warranties of EEP contained in this Agreement shall be true and correct in all respects (disregarding all qualifications as to materiality and qualifications of similar import contained therein) as of the Closing Date shall be disregarded date of this Agreement and as of the Closing, as if all such inaccuracies, considered collectively, do not constitute a Material Adverse Effect made at and as of that time (it being understood that any materiality qualification contained in other than such representations and warranties shall that expressly address matters only as of a certain date, which need only be disregarded for this purposetrue as of such certain date). The foregoing shall , except where the failure of such representations, individually or in the aggregate, to be true and correct would not reasonably be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may expected to have with respect to any such inaccuracies whether or not they constitute a EEP Material Adverse Effect;
7.3.2. (c) EEP shall have performed or complied in all material respects with all of the covenants and obligations contained in agreements required by this Agreement to be performed or complied with by Sellers EEP on or before the Closing Closing;
(includingd) EEP shall have delivered to Purchaser a certificate, without limitation, all obligations which Sellers would be required to perform at dated the Closing if Date, certifying that the transactions contemplated hereby were consummatedconditions specified in Sections 6.02(b) shall have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect the right of the Sellers to sell, transfer or assign to the Purchaser, or the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoing.6.02
Appears in 1 contract
Samples: Purchase Agreement
Conditions to Obligations of the Purchaser. The obligations of Parent and the Purchaser to consummate the transactions contemplated by under this Agreement shall be are subject to the fulfillment or waiversatisfaction, at or prior to the ClosingClosing Date, of each of the following conditions, unless waived by the Purchaser in writing:
7.3.1. (a) The Sellers shall have performed and complied in all material respects with their obligations under this Agreement required to be performed by them at or prior to the Closing Date.
(b) The representations and warranties of the Sellers contained in Section 3 this Agreement shall be true and correct in all material respects (except for representations and warranties qualified as to materiality, which shall be true in all respects), in each case as of the date hereof of this Agreement and at and as of the Closing Date as though restated on if made at and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as .
(c) The Purchaser shall have received a certificate signed by each of the Closing Date shall be disregarded if all such inaccuraciesSellers to the effect of Sections 6.2(a) and 6.2(b).
(d) The conditions set forth in Sections 7.1 and 7.2 of the Merger Agreement (other than Sections 7.1(a), considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations 7.2(c) and warranties shall be disregarded for this purpose7.2(e). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in this Agreement to be complied with by Sellers on or before the Closing (including, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) shall have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding fulfilled or investigation waived by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect the right of the Sellers to sell, transfer or assign to the Purchaser.
(e) The Sellers shall have made the deliveries required by Section 2.2.
(f) The Bankruptcy Court Approval shall have been obtained, or shall contain the right provisions set forth in Section 5.5(a) and shall have become a Final Order; provided, however, that (i) if the Bankruptcy Court will not grant the declaration and injunction described in Section 5.5(a)(xi) and (ii) the Bankruptcy Court approves the Sellers' indemnification of the Purchaser Indemnified Parties for such Claims or Losses as described in the proviso of Section 5.5(a), then the failure of the Bankruptcy Court Approval to purchase contain the declaration and assumeinjunction set forth in Section 5.5(a)(xi) shall not be a condition of Closing. "Final Order" shall mean an order or judgment of the Bankruptcy Court as to which (a) the time to appeal, petition for certiorari, or motion for reargument or rehearing has expired and as to which no appeal, petition for certiorari, or move for reargument or rehearing shall then be pending or, (b) in the Assets event that an appeal, writ of certiorari, reargument or any material portion thereofrehearing thereof has been sought, at such order of the Closing, which has not Bankruptcy Court shall have been initiated affirmed by the Purchaser highest court to which such order was appealed, or its Affiliatescertiorari has been denied, family membersor from which reargument or rehearing was sought, representatives and the time to take any further appeal, petition for certiorari or any party acting in concert with any move for reargument or rehearing shall have expired; provided, that no order shall fail to be a Final Order solely because of the foregoingpossibility that a motion pursuant to Rule 60 of the Federal Rules of Civil Procedure or Rule 7024 of the Federal Rules of Bankruptcy Procedure may be filed with respect to such order.
Appears in 1 contract
Conditions to Obligations of the Purchaser. The obligations obligation of the Purchaser to consummate the transactions contemplated by this Agreement shall be is subject to the fulfillment satisfaction (or waiver, at or prior to wavier by the Closing, of each Purchaser) of the following additional conditions:
7.3.1. (a) Other than the representations and warranties of Sellers the Seller and the Principals contained in Section 3 5.1, Section 5.2, Section 5.6 and Section 5.21, the representations and warranties of the Seller and the Principals set forth in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Seller Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Seller Material Adverse Effect) on and as of the date hereof and as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as of the Closing Date shall be disregarded if all with the same effect as though made at and as of such inaccuracies, considered collectively, do not constitute a Material Adverse Effect date (it being understood that any materiality qualification contained in such except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be disregarded for this purposedetermined as of that specified date). The foregoing representations and warranties of the Seller and the Principals contained in Section 5.1, Section 5.2, Section 5.6 and Section 5.21 shall not be true and correct in limitation all respects on and as of any rights the date hereof and remedieson and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, including under Section 9 hereofthe accuracy of which shall be determined as of that specified date in all respects).
(b) The Seller and the Principals shall have duly performed and complied in all material respects with all agreements, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by Sellers on it as of or before prior to the Closing Date.
(including, without limitationc) The Seller and the Principals shall have obtained at their own expense (and shall have provided executed copies thereof to the Purchaser) all Required Consents, all obligations of which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) shall have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding in full force and effect.
(d) No Legal Proceeding (i) challenging or investigation by or before any court, administrative agency or other Governmental Authority, seeking to restrain, prohibit or invalidate prevent the consummation of the transactions contemplated by this Agreement, or which may affect (ii) that would cause the right of the Sellers transactions contemplated by this Agreement to sell, transfer or assign to the Purchaserbe rescinded following consummation, or (iii) that would affect adversely the right of the Purchaser to purchase and assumeown, operate or control any of the Assets Purchased Assets, or any material portion thereofto conduct the Business as currently conducted, at following the Closing, and no such judgment, order, decree, stipulation or injunction shall be in effect.
(e) No Seller Material Adverse Effect shall have occurred, and no event or circumstance shall have occurred or arisen that would reasonably be expected to result in a Seller Material Adverse Effect.
(f) The Seller and the Principals shall have duly executed and delivered each Transaction Document (other than this Agreement) to which has not been initiated it is a party and such other documents or deliverables required of it in connection with the Closing under Section 4.2.
(g) The Purchaser shall have received all Permits that are necessary for it to conduct the Business as conducted by the Seller as of the Closing Date.
(h) The Seller shall have delivered to the Purchaser payoff letters with respect to all indebtedness of the Seller and documents evidencing the release or termination of all Liens on the Purchased Assets, and copies of UCC termination statements to be filed upon the Closing with respect to all UCC financing statement evidencing Liens.
(i) The Purchaser or its AffiliatesIDSY shall have obtained the Acquisition Financing.
(j) The Shares comprising the Equity Payment, family memberstogether with shares of IDSY’s common stock to be issued in connection with the Acquisition Financing (if the Acquisition Financing is not a “public offering” as such term is defined by NASDAQ Listing Rule 5635), representatives or any party acting in concert with any shall not exceed 19.99% of IDSY’s outstanding shares of common stock as of the foregoingClosing Date.
(k) The Purchaser shall have received all governmental and other approvals necessary in the reasonable discretion of the Purchaser to proceed with the Closing.
(l) IDSY shall have received from the Seller the Audited Financials.
(m) Tibbo shall have executed and delivered to the Purchaser the Master Agreement between Tibbo and the Purchaser in form mutually agreeable to the parties thereto.
(n) Each of the Key Employees shall have executed and delivered to the Purchaser an offer letter and severance agreement in form mutually agreeable to the parties thereto.
(o) IDSY shall have received any and all consents required under that certain Loan and Security Agreement, dated as of December 18, 2015, among Siena Lending Group LLC, as lender, IDSY and Asset Intelligence, LLC, as borrowers, and the other loan party obligors party thereto from time to time.
(p) IDSY shall have received from the Seller the results of an inventory count of the Business as of the date immediately prior to the Closing Date.
(q) The Seller shall have terminated, at no cost to IDSY or the Purchaser, all compensation arrangements (whether written or oral) with Gxx Xxxxx and Rxxx Xxxxxx, including but not limited to the Executive Agreement between the Seller and Gxx Xxxxx, and delivered evidence, satisfactory to the Purchaser, of such termination to the Purchaser.
Appears in 1 contract
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment fulfillment, or waiverthe Purchaser’s waiver in its sole discretion, at or prior to the Closing, of each of the following conditions:
7.3.1. the (a) The representations and warranties of Sellers the Seller and the Partners contained in Section 3 Article III and Article IV shall be have been true and correct in all material respects as of the date hereof and as of the Closing as though restated on shall be true and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies correct in such representations and warranties all material respects as of the Closing Date as though made on and as of the Closing Date (except those representations and warranties that address matters only as of a specified date, which shall be disregarded if true and correct in all such inaccuraciesmaterial respects as of that specified date), considered collectively, do not constitute a except that Section 3.10(a) and those representations and warranties that by their terms are already qualified by materiality or Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). true and correct in all respects.
(b) The foregoing Seller and the Partners shall not be have duly performed and complied in limitation of any rights and remediesall material respects with all agreements, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in conditions required by this Agreement to be performed or complied with by Sellers on each of them at or before prior to the Closing Date.
(includingc) The Purchaser shall have received a certificate from each of the Seller and the Partners, without limitation, all obligations which Sellers would be required to perform at dated as of the Closing if Date and signed by an authorized representative of each of the transactions contemplated hereby were consummatedSeller and the Partners, certifying that each of the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied with respect to each of them, as applicable.
(d) The Seller and the Partners shall have been complied with in all material respects;
7.3.3. there delivered, or shall have caused to be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authoritydelivered, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect the right Purchaser each of the Sellers to sell, transfer or assign to the Purchaser, or the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting items set forth in concert with any of the foregoingSection 8.1.
Appears in 1 contract
Samples: Asset Purchase Agreement (Smith Douglas Homes Corp.)
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or the Purchaser’s waiver, at or prior to the Closing, of each of the following conditions:
7.3.1. (a) Each of (i) the representations and warranties of (other than the Seller Fundamental Reps) made by the Sellers contained in this Agreement that are not qualified by Material Adverse Effect and similar qualifications contained therein shall be true and correct as of the date hereof and as of the Closing Date as though such representations and warranties were made on and as of such dates (except to the extent such representations and warranties by their terms speak as of a different date, in which case they shall be true and correct as of such date), except where the failure to be so true and correct would not reasonably be expected to have a Material Adverse Effect, (ii) the representations and warranties (other than the Seller Fundamental Reps) made by the Sellers contained in this Agreement that are qualified by Material Adverse Effect shall be true and correct in all respects as of the date hereof and as of the Closing Date as though such representations and warranties were made on and as of such dates (except to the extent such representations and warranties by their terms speak as of a different date, in which case they shall be true and correct in all respects as of such date), (iii) the Seller Fundamental Reps shall be true and correct in all material respects (other than the Seller Fundamental Reps in Section 3 4.06, which shall be true and correct in all respects) as of the date hereof and as of the Closing Date as though such representations were made on and as of such date (except to the extent such representations and warranties by their terms speak as of a different date, in which case they shall be true and correct in all material respects as of such date) and (iv) the Seller Fundamental Reps that are qualified by Material Adverse Effect shall be true and correct in all respects as of the date hereof and as of the Closing Date as though restated such representations were made on and as of such date, provided that solely for dates (except to the purpose of this Section 7.3.1 any inaccuracies in extent such representations and warranties by their terms speak as of a different date, in which case they shall be true and correct in all material respects as of such date).
(b) The Sellers 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 complied with by them prior to or on the Closing Date Date.
(c) No Proceeding shall have been commenced against the Parties, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Entity, and be disregarded if all such inaccuraciesin effect, considered collectivelywhich restrains or prohibits any transaction contemplated hereby.
(d) All approvals, do consents and waivers that are listed on Schedule 4.03 of the Disclosure Schedules, including, without limitation the approval of the requisite shareholders of Stella Diagnostics, shall have been received, and executed counterparts thereof shall have been delivered to the Purchaser at or prior to the Closing.
(e) From the date of this Agreement, there shall not constitute a have occurred any Material Adverse Effect (it being understood that Effect, nor shall any materiality qualification contained event or events have occurred that, individually or in such representations and warranties shall the aggregate, with or without the lapse of time, could reasonably be disregarded for this purpose). The foregoing shall not be expected to result in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;.
7.3.2. (f) The Sellers shall have delivered to the covenants Purchaser duly executed counterparts to the Ancillary Agreements and obligations contained such other documents and deliveries set forth in this Agreement to be complied with by Sellers on or before Section 2.02.
(g) The Purchaser shall have received a certificate, dated the Closing (includingDate and signed by a duly authorized officer of the Sellers, without limitationthat each of the conditions set forth in Section 9.02(a), all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummatedSection 9.02(b) shall and Section 9.02(e) have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect the right of the Sellers to sell, transfer or assign to the Purchaser, or the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoingsatisfied.
Appears in 1 contract
Conditions to Obligations of the Purchaser. The obligations obligation of the Purchaser to consummate the transactions contemplated by this Agreement shall be Closing is subject to the fulfillment or waiver, at or prior to the Closing, of each of the following conditions:conditions (except to the extent waived in writing by the Purchaser in its sole discretion):
7.3.1. (a) the representations and warranties of Sellers the Seller contained in Section 3 this Agreement (other than the Seller Fundamental Representations), disregarding all qualifications contained herein relating to materiality or Material Adverse Effect, shall be true and correct, in each case on and as of the date hereof and on and as of the Closing Date as though made at each such date (except, in either case, for such representations and warranties which by their express provisions are made as of an earlier date, in which case, as of such earlier date), except to the extent that the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, have a Material Adverse Effect; provided, that the Seller Fundamental Representations shall be true and correct in all material respects (except, in either case, for such representations and warranties which by their express provisions are made as of an earlier date, in which case, as of such earlier date) with the date hereof same force and effect as though such representations and warranties had been made on the Closing Date;
(b) the Seller shall have performed and complied, in all material respects, with the agreements, covenants and obligations required by this Agreement to be performed or complied with by the Seller at or before the Closing;
(c) the Purchaser shall have received from the Seller at the Closing an officer’s certificate, dated as of the Closing as though restated on and as of such dateDate, provided certifying that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties as each of the Closing Date conditions set forth in Sections 6.2(a) and (b) has been satisfied (the “Seller’s Bring Down Certificate”); and
(d) the Seller shall be disregarded if all such inaccuracieshave delivered, considered collectively, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in this Agreement caused to be complied with by Sellers on or before the Closing (includingdelivered, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) shall have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect the right each of the Sellers to sell, transfer or assign to the Purchaser, or the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting items set forth in concert with any of the foregoingSection 1.9(a).
Appears in 1 contract
Samples: Asset Purchase Agreement (Martin Midstream Partners Lp)
Conditions to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement hereby shall be subject to the fulfillment satisfaction or waiver, waiver at or prior to the Closing, Closing of each of the following conditions:
7.3.1. (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 contemplated hereby;
(b) The Company shall have performed in all material respects its covenants and agreements contained in this Agreement required to be performed at or prior to the Closing and the representations and warranties of Sellers the Company and its Subsidiaries contained in Section 3 this Agreement that are qualified as to a Material Adverse Effect shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct except where the failure to be true and correct individually or in all material respects as of the date hereof and aggregate could not reasonably be expected to have a Material Adverse Effect in each case, as of the Closing as though restated on and as of such date, provided that solely for the purpose of this Section 7.3.1 any inaccuracies in such representations and warranties if made as of the Closing Date (except to the extent that the representation or warranty is expressly limited by its terms to another date);
(c) The Company shall have executed and delivered the Registration Rights Agreement, and the Registration Rights Agreement shall be disregarded if all such inaccuraciesin full force and effect;
(d) The Purchaser shall have received an opinion of Riorxxx & XcKixxxx, considered collectivelyxxtside counsel to the Company, do not constitute a Material Adverse Effect (it being understood that any materiality qualification contained in such representations and warranties shall be disregarded for this purpose). The foregoing shall not be in limitation of any rights and remedies, including under Section 9 hereof, that the Purchaser may have with respect to any such inaccuracies whether or not they constitute a Material Adverse Effect;
7.3.2. the covenants and obligations contained in this Agreement to be complied with by Sellers on or before the Closing (includingdue incorporation, without limitation, all obligations which Sellers would be required to perform at the Closing if the transactions contemplated hereby were consummated) shall have been complied with in all material respects;
7.3.3. there shall be no action, suit, proceeding or investigation by or before any court, administrative agency or other Governmental Authority, to restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which may affect the right of the Sellers to sell, transfer or assign to the Purchaser, or the right of the Purchaser to purchase and assume, the Assets or any material portion thereof, at the Closing, which has not been initiated by the Purchaser or its Affiliates, family members, representatives or any party acting in concert with any of the foregoing.due
Appears in 1 contract
Samples: Stock Purchase Agreement (Water Pik Technologies Inc)
