Conditions to Obligations to Close. (a) The obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions: (1) The representations and warranties set forth in Section 4 above shall be true and correct in all material respects at and as of the Closing Date. (2) Each of Seller and Andrxxx xxxll have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above. (3) Seller shall have procured all of the third party consents specified in this Agreement. (4) No action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (C) affect adversely the right of Buyer to own the Assets and to operate the Business. (5) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in this Section 6(a)(1)-(4) is satisfied in all respects. (6) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect. (7) Buyer shall have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement and the consummation of the transactions contemplated hereby. (8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi. (9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing. (10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing. (b) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions: (1) The representations and warranties set forth in Section 5 above shall be true and correct in all material respects at and as of the Closing Date. (2) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above. (3) No action, suit or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation. (4) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect. Seller or Andrxxx xxx waive any condition specified in this Section 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligations to Close. (a) Conditions to Obligations of Universal. The obligations -------------------------------------- of Universal set forth in this Merger Agreement (including, without limitation, the obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is Merger) are subject to satisfaction of the following conditions:
(1i) This Merger Agreement shall have been adopted and approved and the Merger shall have been approved by more than 50% of the stockholders of Universal and by more than 50% of the shareholders of BF;
(ii) The representations and warranties set forth in Section 4 above Sections 7 and 8 shall be true and correct in all material respects at and as of the Closing Date.;
(2iii) Each of Seller and Andrxxx xxxll BF shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.respects;
(3) Seller shall have procured all of the third party consents specified in this Agreement.
(4iv) No action, suit suit, or proceeding shall be pending or threatened against BF before any court or quasi-judicial or administrative agency of any federalFederal, state, local local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Merger Agreement, or (B) cause of any of the transactions contemplated by this Merger Agreement to be rescinded following consummation or (C) affect adversely the right of Buyer to own the Assets and to operate the Business.consummation;
(5v) Seller BF shall have delivered to Buyer Universal a certificate to the effect of BF's Secretary attaching, and certifying that each such attachment is true, correct, complete and in effect on the Closing Date: (A) resolutions of the conditions specified above in this Section 6(a)(1)-(4) is satisfied in all respects.
(6) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect.
(7) Buyer shall have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and BF with respect to all transactions contemplated by Andrxxx xxxroving this Agreement; (B) resolutions or minutes of meeting of BF shareholders adopting this Merger Agreement and approving the consummation Merger; and (C) a good standing certificate for BF issued by the Secretary of State of the transactions contemplated hereby.State of Florida dated not more than five days prior to the Closing Date; and
(8) SanTi vi) No State or Federal securities regulator (including the Securities and Exchange Commission) shall have entered into issued a Shareholders' Agreement stop order with Andrxxx xxx with John X. Xxxxxx xx respect to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer trading of any shares of BF capital stock or shall have obtained on terms and conditions satisfactory commenced any inquiry with respect to it all of the financing it needs in order any filing made by BF with any such regulator or shall have commenced any investigation with respect to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory in form and substance to BuyerBF. Buyer Universal may waive any condition specified in this Section 6(a17(a) if it executes a writing so stating at or prior to the Closing.
(b) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1) The representations and warranties set forth in Section 5 above shall be true and correct in all material respects at and as of the Closing Date.
(2) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3) No action, suit or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation.
(4) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect. Seller or Andrxxx xxx waive any condition specified in this Section 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligations to Close. (a) 5.1. The obligation of Buyer Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1a) The representations and warranties set forth in Section 4 above 2.1 above, shall be true and correct in all material respects respects, and all agreements and covenants contained in this Agreement shall have been performed or complied with by Seller, in each case, at and as of the Closing Date.;
(2) Each of Seller and Andrxxx xxxll have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3b) Seller shall have procured all delivered to Purchaser its certificate to the effect that to Seller's actual knowledge, each of the third party consents conditions specified above in this Agreement.Section 5.1(a) is satisfied in all respects and that Section 5.1(k) is accurate;
(4c) No action, suit or proceeding Purchaser shall have been provided with all due diligence materials that it has reasonably requested;
(d) There shall not be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent in effect preventing consummation of any of the transactions contemplated by this Agreement, ;
(Be) cause any Purchaser shall have received (i) an Assignment of Interest and Withdrawal as Member of the transactions Company in form and substance reasonably acceptable to Purchaser; (ii) such other documents or instruments, as Purchaser may reasonably require to effect the transfer of the Membership Interests and/or any other transaction contemplated by under this Agreement Agreement; and (iii) a Non-Foreign Person Affidavit in form and substance reasonably acceptable to be rescinded following consummation or (C) affect adversely the right of Buyer to own the Assets and to operate the Business.Purchaser;
(5f) Purchaser shall have received good standing certificates of the Company and FWCD from the Secretary of State of the State of Missouri and any other jurisdiction in which Company and/or FWCD does business or is authorized to do business;
(g) Seller shall have delivered received or Purchaser shall have waived the consents set forth in Schedule 2.1(d) and provided same to Buyer a certificate to the effect that each of the conditions specified above in this Section 6(a)(1)-(4) is satisfied in all respects.Purchaser;
(6h) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect.
(7) Buyer Purchaser shall have received copiesevidence that all franchise and other taxes and fees have been paid in full to the State of Missouri and any other jurisdiction in which the Company and/or FWCD does business or is authorized to do business, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement and the consummation of the transactions contemplated hereby.all on terms satisfactory to Purchaser;
(8) SanTi i) Purchaser shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms received duly executed UCC-3 termination statements and conditions satisfactory to SanTi.
such other release and termination instruments (9or copies thereof) Buyer as Purchaser shall have obtained on terms and conditions satisfactory to it all of the financing it needs reasonably request in order to consummate confirm the transactions contemplated hereby Company's and to fund FWCD's ownership of their assets free and clear of all liens, encumbrances and security interests;
(j) Seller shall have caused the working capital requirements long term liabilities of the Business after Company including the Closing.current portion of such long term liabilities to be satisfied in full; and
(10k) All actions to be taken by Seller Purchaser shall have received duly executed copies of all agreements and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory set forth in form and substance to BuyerArticle 6 hereof. Buyer Purchaser may waive any condition specified in this Section 6(a) 5.1 if it executes a writing so stating at or prior to the Closing.
(b) 5.2. The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1a) The representations and warranties set forth in Section 5 3.1 above shall be true and correct in all material respects respects, and all agreements and covenants contained in this Agreement shall have been performed or complied with by Purchaser, in each case, at and as of the Closing Date.;
(2b) Buyer Purchaser shall have performed and complied with all delivered to Seller an officer’s certificate to the effect that each of its covenants hereunder the conditions specified above in Section 5.2(a) is satisfied in all material respects through and that Section 5.2(f) is accurate;
(c) Minutes of the meeting, or written consent, of Directors and Shareholders of Purchaser approving the purchase as contemplated by this Agreement, attested by the Secretary or Assistant Secretary of the corporation as of the date of Closing, including but not limited to those set forth have been duly called, held, and to be presently in Section 2 above.force and effect;
(3d) No actionSeller shall have received the Cash Purchase Price, suit or proceeding the Purchase Price Shares and the Promissory Note;
(e) There shall not be pending before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent in effect preventing consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation.Agreement; and
(4f) The relevant parties Seller shall have entered into, received duly executed copies of all agreements and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to instruments set forth in Section 2 above, and the same shall be in full force and effectArticle 6 hereof. Seller or Andrxxx xxx may waive any condition specified in this Section 6(b) 5.2 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Meridian Waste Solutions, Inc.)
Conditions to Obligations to Close. (a) A. Conditions to Obligations of ALPP, A4TI, and Merger Sub. The obligation obligations of Buyer each of ALPP, A4TI, and Merger Sub to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:, unless otherwise waived in writing by ALPP, A4TI, and Merger Sub prior to Closing;
(1) The representations and warranties of Company set forth in Section 4 above shall will be true and correct in all material respects as if made at and as of the Closing Date.Closing, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Adverse Effect” or “Adverse Change,” in which case such representations and warranties as so written, including the term “material” or “Material,” will be true and correct in all respects at and as of the Closing;
(2) Each of Seller and Andrxxx xxxll Company will have performed and complied with all of its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Adverse Effect” or “Adverse Change,” in which case Company will have performed and complied with all of such covenants as so written, including but not limited to those set forth the term “material” or “Material,” in Section 2 above.all respects through the Closing;
(3) Seller shall have procured all of the third party consents specified in this Agreement.
(4) No action, suit or proceeding shall There will not be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling decree or charge injunction in effect that would (Aa) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (C) affect adversely the right of Buyer to own the Assets and to operate the Business.
(5) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in this Section 6(a)(1)-(4) is satisfied in all respects.
(6) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect.
(7) Buyer shall have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement and the consummation of the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
(b) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1) The representations and warranties set forth in Section 5 above shall be true and correct in all material respects at and as of the Closing Date.
(2) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3) No action, suit or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation., (c) adversely affect the right of A4TI to own the capital stock of Surviving Corporation and to control Surviving Corporation and its Subsidiaries, or (d) adversely affect the right of any of Surviving Corporation and its Subsidiaries to own its assets and to operate its business;
(4) The relevant parties shall Merger will have entered into, executed been duly approved by the Company’s Board of Directors and by holders of the Company Shares representing at least eighty percent (80%) of the Company Shares (the “Required Company Vote”);
(5) Company will have delivered to ALPP and A4TI a certificate to the Noncompetition Agreement, Sublease, Release and effect that each of the other agreements referred to in Section 2 above, and the same shall be in full force and effect. Seller or Andrxxx xxx waive any condition conditions specified in this Section 6(bSections 2.A(1)-(4) if it executes a writing so stating at or prior is satisfied in all respects;
(6) Company will have delivered to ALPP and A4TI an executed counterpart of the Merger Certificate; and
(7) Company will have delivered to ALPP and A4TI the resignations, effective as of the Closing, of each director and officer of Company excluding Xxxxxx Xxxx.
Appears in 1 contract
Conditions to Obligations to Close. (a) A. Conditions to ALPP’s and Merger Sub’s Obligations. The obligation obligations of Buyer each of ALPP and Merger Sub to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:, unless otherwise waived in writing by ALPP and Merger Sub prior to Closing;
(1) The representations and warranties of Company set forth in Section 4 above shall will be true and correct in all material respects as if made at and as of the Closing Date.Closing, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Adverse Effect” or “Adverse Change,” in which case such representations and warranties as so written, including the term “material” or “Material,” will be true and correct in all respects at and as of the Closing;
(2) Each of Seller and Andrxxx xxxll Company will have performed and complied with all of its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Adverse Effect” or “Adverse Change,” in which case Company will have performed and complied with all of such covenants as so written, including but not limited to those set forth the term “material” or “Material,” in Section 2 above.all respects through the Closing;
(3) Seller shall have procured all of the third party consents specified in this Agreement.
(4) No action, suit or proceeding shall There will not be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling decree or charge injunction in effect that would (Aa) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (C) affect adversely the right of Buyer to own the Assets and to operate the Business.
(5) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in this Section 6(a)(1)-(4) is satisfied in all respects.
(6) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect.
(7) Buyer shall have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement and the consummation of the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
(b) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1) The representations and warranties set forth in Section 5 above shall be true and correct in all material respects at and as of the Closing Date.
(2) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3) No action, suit or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation., (c) adversely affect the right of ALPP to own the capital stock of Surviving Corporation and to control Surviving Corporation and its Subsidiaries, or (d) adversely affect the right of any of Surviving Corporation and its Subsidiaries to own its assets and to operate its business;
(4) The relevant parties shall Merger will have entered into, executed been duly approved by the Company’s Board of Directors and delivered by holders of the Noncompetition Agreement, Sublease, Release and Company Shares representing at least eighty percent (80%) of the other agreements referred to in Section 2 aboveCompany Shares (the “Required Company Vote”);
(5) The Company must open an escrow account with Bank of America (the “Escrow Account”), and either ALPP or the same shall be in full force and effect. Seller or Andrxxx xxx waive any condition Company must fund the Escrow Account with $72,000, representing the amount of the PPP loan to the Company.
(6) Company will have delivered to ALPP a certificate to the effect that each of the conditions specified in this Section 6(bSections 2.A(1)-(4) if it executes a writing so stating at or prior is satisfied in all respects;
(7) Company will have delivered to ALPP an executed counterpart of the Merger Certificate; and
(8) Company will have delivered to ALPP the resignations, effective as of the Closing, of each director and officer of Company excluding Xxxxxx Xxxxxx.
Appears in 1 contract
Conditions to Obligations to Close. (a) A. Conditions to EAI's Obligation. The obligation of Buyer each of EAI and Merger Sub to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:;
(1) The representations and warranties of Company set forth in Section 4 above shall will be true and correct in all material respects as if made at and as of the Closing Date.Closing, except to the extent that such representations and warranties are qualified by the term "material," or contain terms such as "Adverse Effect" or "Adverse Change," in which case such representations and warranties as so written, including the term "material" or "Material," will be true and correct in all respects at and as of the Closing;
(2) Each of Seller and Andrxxx xxxll Company will have performed and complied with all of its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term "material," or contain terms such as "Adverse Effect" or "Adverse Change," in which case Company will have performed and complied with all of such covenants as so written, including but not limited to those set forth the term "material" or "Material," in Section 2 above.all respects through the Closing;
(3) Seller shall have procured all of the third party consents specified in this Agreement.
(4) No action, suit or proceeding shall There will not be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling decree or charge injunction in effect that would (Aa) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (C) affect adversely the right of Buyer to own the Assets and to operate the Business.
(5) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in this Section 6(a)(1)-(4) is satisfied in all respects.
(6) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect.
(7) Buyer shall have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement and the consummation of the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
(b) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1) The representations and warranties set forth in Section 5 above shall be true and correct in all material respects at and as of the Closing Date.
(2) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3) No action, suit or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation., (c) adversely affect the right of EAI to own the capital stock of Surviving Corporation and to control Surviving Corporation and its Subsidiaries, or (d) adversely affect the right of any of Surviving Corporation and its Subsidiaries to own its assets and to operate its business;
(4) Company and its Subsidiaries will not have engaged in any practice, taken any action, or entered into any transaction outside the Ordinary Course of Business which results in a Material Adverse Effect;
(5) The relevant parties shall Merger will have entered into, been duly approved by the requisite number of Company Stockholders;
(6) Company will have delivered to EAI a certificate to the effect that each of the conditions specified in Sections 2.A(l )-(5) is satisfied in all respects; and
(7) Company will have delivered to EAI an executed counterpart of the Merger Certificate. EAI and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect. Seller or Andrxxx xxx Merger Sub may waive any condition specified in this Section 6(b) 2.A if it executes or they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligations to Close. (a) VI.1 Conditions to Obligation of OCOA, Sellers and the Physician Owners. The obligation of Buyer OCOA, Sellers and the Physician Owners to consummate the transactions to be performed contemplated by it in connection with the Closing this Agreement is subject to satisfaction of the following conditions:
(1a) The the transactions contemplated by this Agreement shall be approved by OCOA's partners and the Requisite OCOA Approval shall have been obtained;
(b) the representations and warranties set forth in Section 4 ARTICLE III above shall be true and correct in all material respects at and as of the Closing Date.;
(2c) Each of Seller and Andrxxx xxxll have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3) Seller shall have procured all of the third party consents specified in this Agreement.
(4) No no action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, or (C) affect adversely the right rights of Buyer OCOA or the Physician Owners to own the Assets and to operate the Business.Purchased Assets;
(5d) Seller shall have delivered all actions to Buyer a certificate to the effect that each of the conditions specified above be taken by SCN in this Section 6(a)(1)-(4) is satisfied in all respects.
(6) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect.
(7) Buyer shall have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement and connection with the consummation of the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinionsinstruments, instruments agreements and other documents required to effect the transactions contemplated hereby, will be have been taken or delivered to OCOA, the Physician Owners and/or the Sellers and are satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.substance;
(be) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1) The representations and warranties set forth in Section 5 above shall be true and correct in all material respects at and as of the Closing Date.
(2) Buyer SCN shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.; and
(3f) No actionneither surrender of the SCN Shares by OCOA, suit the Physician Owners or proceeding shall be pending before any court the Sellers, nor the issuance of the OCOA Note will violate federal securities laws or quasi-judicial or administrative agency the securities laws of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any state of the transactions contemplated by this Agreement or (B) cause any of United States. OCOA, the transactions contemplated by this Agreement to be rescinded following consummation.
(4) The relevant parties shall have entered intoPhysician Owners, executed and delivered and/or the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect. Seller or Andrxxx xxx Sellers may waive any condition specified in this Section 6(b) if it executes SECTION 6.1 by executing a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligations to Close. (a) 8.1 Conditions to Obligation of Each Party to Close. The obligation respective obligations of Buyer each party to consummate effect the transactions contemplated hereby shall be subject to be performed by it in connection with the satisfaction or waiver at or prior to the Closing is subject to satisfaction Date of the following conditions:
(1a) The No statute, rule, regulation, executive order, decree, ruling, injunction or other order ("Order") shall have become effective restraining, enjoining or otherwise prohibiting or making illegal the consummation of the transactions contemplated hereby; and
(b) Seller shall have obtained all Required Governmental and Stockholder Approvals.
8.2 Conditions to Purchaser's Obligation to Close. Purchaser's obligation to effect the transactions contemplated hereby shall be subject to the satisfaction or waiver on or prior to the Closing Date of all of the following conditions:
(a) Each of the representations and warranties set forth of Seller and the Selling Subs contained in Section 4 above this Agreement shall be true and correct in all material respects at respects, as of the date hereof and as of the Closing Date.Date as though made on and as of the Closing Date immediately prior to the Closing, except (i) that those representations and warranties that address matters only as of a particular date shall remain true and correct as of such particular date and (ii) where the failure to be so true and correct would not have a Material Adverse Effect;
(2b) Each The covenants and agreements of Seller and Andrxxx xxxll the Selling Subs to be performed on or before the Closing Date in accordance with this Agreement shall have performed been duly performed, except where the failure to so perform would not have a Material Adverse Effect;
(c) Purchaser shall have received at the Closing a certificate, dated as of the Closing Date and complied validly executed on behalf of Seller and each Selling Sub by an officer of Seller and each Selling Sub, to the effect that the conditions specified in Section 8.2(a) and Section 8.2(b) have been satisfied;
(d) There shall not have occurred any Material Adverse Effect (or any development that, insofar as reasonably can be foreseen, is reasonably likely to result in any Material Adverse Effect); and
(e) Receipt of Form 2530 clearance by Purchaser with respect to all of its covenants hereunder in all material respects through the Closing, including but not limited to those 2530 Entities as set forth in Section 2 above5.19 hereof.
(3) Seller shall have procured all of the third party consents specified in this Agreement.
(4) No action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement 8.3 Conditions to be rescinded following consummation or (C) affect adversely the right of Buyer to own the Assets and to operate the Business.
(5) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in this Section 6(a)(1)-(4) is satisfied in all respects.
(6) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release Seller's and the other agreements referred Selling Subs' Obligation to in Section 2 above, and the same shall be in full force and effect.
(7) Buyer shall have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors Close. The obligations of Seller and by Andrxxx xxxroving this Agreement and the consummation of the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required Selling Subs to effect the transactions contemplated hereby, will hereby shall be satisfactory in form and substance subject to Buyer. Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at the satisfaction or waiver on or prior to the Closing.
(b) The obligation Closing Date of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction all of the following conditions:
(1a) The Each of the representations and warranties set forth of Purchaser contained in Section 5 above this Agreement shall be true and correct in all material respects at respects, as of the date hereof and as of the Closing Date.Date as though made on and as of the Closing Date immediately prior to the Closing, except (i) that those representations and warranties that address matters only as of a particular date shall remain true and correct as of such particular date and (ii) where the failure to be so true and correct would not have a Material Adverse Effect;
(2b) Buyer The covenants and agreements of Purchaser to be performed on or before the Closing Date in accordance with this Agreement shall have been duly performed and complied with all of its covenants hereunder in all material respects through except where the Closingfailure to so perform would not have a Material Adverse Effect; and
(c) Seller and the Selling Subs shall have received at the Closing a certificate, including but not limited dated the Closing Date and validly executed on behalf of Purchaser by an officer of Purchaser to those set forth the effect that the conditions specified in Section 2 above8.3(a) and Section 8.3(b) have been satisfied.
(3) No action8.4 Conditions to Seller's, suit or proceeding shall be pending before any court or quasi-judicial or administrative agency the Selling Subs' and Purchaser's Obligations to Effect the HUD TPA Closing. The obligations of any federalSeller, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the Selling Subs and Purchaser to consummate the transactions contemplated by this Agreement to be consummated at each HUD TPA Closing is subject to satisfaction or (B) cause any waiver of the transactions contemplated by this Agreement to be rescinded following consummation.conditions on or before each HUD TPA Closing Date:
(4a) The relevant parties No Order shall have entered intobecome effective restraining, enjoining or otherwise prohibiting or making illegal the consummation of the applicable HUD TPA Closing;
(b) TPA Approval shall have been obtained; and
(c) Purchaser shall have received a certificate, dated as of the respective HUD TPA Closing Date and validly executed on behalf of Seller and delivered each Selling Sub by an officer of Seller and each Selling Sub, to the Noncompetition Agreement, Sublease, Release and effect that the other agreements referred to conditions specified in Section 2 above, 8.4(a) and the same shall be in full force and effect. Seller or Andrxxx xxx waive any condition specified in this Section 6(b8.4(b) if it executes a writing so stating at or prior to the Closinghave been satisfied.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Municipal Mortgage & Equity LLC)
Conditions to Obligations to Close. (a) Conditions to Obligation of the Parent and Sub. The obligation of Buyer the Parent and Sub to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver of the following conditions:
(1i) The the representations and warranties of the Shareholders as set forth in Section 4 above shall 6(a) and of the Elerath Shareholders as set forth in Section 7 must be true true, correct and correct complete in all material Material respects at and as of the Closing Date.Date as evidenced by the delivery by the Shareholders to the Parent at Closing of the Shareholders' Closing Certificate to the effect that the representations and warranties of the Shareholders as set forth in Section 6(a) and of the Elerath Shareholders as set forth in Section 7 are true, correct and complete in all Material Respects as of the Closing Date to be attached to this Agreement as Exhibit F;
(2ii) Each of Seller and Andrxxx xxxll the Shareholders shall have performed and complied with all of its their covenants hereunder in this Agreement in all material Material respects through the Closing, including but not limited to those set forth in Section 2 above.;
(3iii) Seller the Target and its Subsidiaries shall have procured all of the necessary third party consents specified in this Agreement.Section 8(b);
(4iv) No no action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling stipulation, injunction, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, or (C) affect adversely the right of Buyer the Parent to own own, operate, or control the Assets Shares or the Target and to operate the Business.its Subsidiaries (and no such judgment, order, decree, stipulation, injunction, or charge shall be in effect);
(5v) Seller the Shareholders shall have delivered to Buyer a certificate the Parent the Shareholders' Closing Certificate (without qualification as to knowledge or Materiality or otherwise) to the effect that each of the conditions specified above in this Section 6(a)(1)-(410(a)(i)-(iv) is satisfied in all respects.respects to be attached to this Agreement as Exhibit F;
(6vi) The relevant parties the acquisition by the Parent of the Shares must represent all of the issued and outstanding capital stock of the Target and its Subsidiaries and all of the Shares must be free and clear of any Security Interests or other liens, claims or encumbrances of any nature whatsoever;
(vii) the Parties, the Target and its Subsidiaries must have received all other authorizations, consents and approvals of Governmental Bodies including such authorizations, consents or approvals required under the HSR Act, if any, and set forth in the Disclosure Schedules;
(viii) the Parent must have received from counsel to the Elerath Shareholders an opinion with respect to the matters set forth in Sections 6(a)(i), 6(a)(ii), 6(a)(iv), 7(a)-(e), 7(q) and 7(v) addressed to the Parent and dated as of the Closing Date in substantially the form attached to this Agreement as Exhibit G;
(ix) the Parent must have received the resignations, effective as of the Closing, of each officer and director of the Target and each Manager of Reflex and NextWave;
(x) no Material adverse change shall have entered intooccurred in the Target or its Subsidiaries' Business or their future prospects;
(xi) all funded indebtedness of the Target other than that assumed by the Parent must have been paid in full prior to or at the Closing and all Security Interests except Permitted Liens must have been fully released of record to the satisfaction of the Parent and all mortgages and Uniform Commercial Code financing statements covering such funded indebtedness must have been terminated or the Parent must be reasonably satisfied that all Security Interests will be fully released of record within ten (10) days after the Closing Date;
(xii) except as set forth in the Disclosure Schedules, executed since the Effective Date the Target and its Subsidiaries must not have transferred, conveyed, disposed of and/or sold any of Material assets, except in the Ordinary Course of Business;
(xiii) the Target and its Subsidiaries must have delivered to the Parent a certificate from the Target's treasurer stating that from the Effective Date to the Closing Date there has been no change in the capitalization of the Target and its Subsidiaries or any Material adverse change in its financial condition or assets;
(xiv) the Shareholders must have delivered to the Parent certificates representing the Shares, which shall be cancelled and exchanged for the Merger Consideration, and otherwise must have satisfied fully all of their obligations required by this Agreement to be satisfied before or at Closing;
(xv) the Target and its Subsidiaries must not be in a bankruptcy, reorganization or insolvency proceeding nor any such proceeding contemplated;
(xvi) Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx, Xx. and Xxxx X. Xxxxxx, Xx. must have signed and delivered the Noncompetition AgreementEmployment Agreements (Exhibits X-0, Sublease, Release X-0 and the other agreements referred to in Section 2 above, and the same shall be in full force and effect.E-3) with attached Confidentiality Agreements;
(7xvii) Buyer shall the Shareholders must have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement and the consummation of the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx delivered to the SanTi StockParent Certificates of Good Standing from the State of New Mexico and Florida, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of as the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
case may be, dated within ten (10) All actions days prior to be taken by Seller the Closing Date, certifying that the Target and Andrxxx xx connection with consummation each of its Subsidiaries is in good standing in the State of New Mexico and Florida, as the case may be;
(xviii) the Shareholders must have delivered to the Parent the Release attached to this Agreement as Exhibit H and dated as of the transactions contemplated herebyClosing Date, whereby the Shareholders release the Target and its Subsidiaries from any and all claims and causes of action they may have against the Target and its Subsidiaries as of the Closing Date;
(xix) the Shareholders must have delivered to the Parent all minutes related to the Target and its Subsidiaries for the past three (3) years;
(xx) the Shareholders must have delivered to the Parent, Officer, Directors and Significant Employee Questionnaires as prepared by the Parent and completed by Xxxxxxx X. Xxxxxxx, Xxxxx X. Xxxx, Xxxxxx X. Xxxxxx, Xx. and Xxxx X. Xxxxxx, Xx.;
(xxi) the Shareholders must have delivered to the Parent (A) evidence that they have repaid the Target and its Subsidiaries all amounts owed the Target and its Subsidiaries by them, and all certificates(B) a copy of the promissory note evidencing the Target's loan to Laser Wireless, opinions, instruments Inc.; and
(xxii) The Reflex and other NextWave documents required set forth as Exhibits K-1 through K-4 must be signed and delivered to effect the transactions contemplated hereby, will be satisfactory in form and substance to BuyerTarget. Buyer The Parent may waive any condition specified in this Section 6(a10(a) if it executes a writing so stating at or prior to the Closing.
(b) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1) The representations and warranties set forth in Section 5 above shall be true and correct in all material respects at and as of the Closing Date.
(2) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3) No action, suit or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation.
(4) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect. Seller or Andrxxx xxx waive any condition specified in this Section 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligations to Close. (a) The obligation obligations of Buyer Purchaser to consummate the transactions to contemplated herein shall be performed by it in connection with the Closing is subject to satisfaction the fulfillment of the following conditionsconditions (“Purchaser’s Conditions”), any of which may be waived by Purchaser in its sole and absolute discretion:
(1) 10.1 The representations and warranties set forth in Section 4 above of Seller made herein shall be true and correct in all material respects respects, Seller shall have performed all covenants and agreements made herein and Seller shall have delivered to Purchaser all of the closing documents required pursuant to Section 11.1 hereof.
10.2 Purchaser’s receipt of the Required Tenant Executed Estoppels (as hereinafter defined).
10.3 An unconditional and irrevocable agreement by the Title Company to issue the Title Policy.
10.4 Delivery of possession of the Property to Purchaser subject only to the Permitted Exceptions and to the rights of Tenants under the Leases, as tenants only.
10.5 If there are REAs which affect the Property, receipt of an executed estoppel certificate from the other parties to the REAs in the form of Exhibit “C-8” attached hereto and made a part hereof (collectively, the “REA Estoppels”); provided, however that if the REA Estoppels have not been received on or before Closing, Seller agrees to provide Purchaser at Closing with a REA Estoppel executed by Seller for each party that Seller does not provide Purchaser with a REA Estoppel (collectively, the “Required Seller Estoppels”). Seller agrees to forward any REA Estoppels received by Seller from any party to the REAs to Purchaser within three (3) business days after Seller’s receipt of same. This Section 10.5 shall survive Closing.
10.6 As of the Closing Date, no Tenant shall have (a) filed a petition in bankruptcy, (b) been adjudicated insolvent or bankrupt, (c) petitioned a court for the appointment of any receiver of or trustee for it or any substantial part of its property, (d) commenced any proceeding under any reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect, (e) become the subject of an involuntary bankruptcy petition, (f) vacated its leased premises, or (g) had its Lease terminated. There shall not have been commenced and be pending against any Tenant any proceeding of the nature described in the first sentence of this subparagraph. No order for relief shall have been entered with respect to any Tenant under the Federal Bankruptcy Code.
10.7 Delivery to Purchaser of evidence that any existing management agreement and/or leasing agreement entered into by Seller with respect to the Property has been terminated.
10.8 Delivery to Purchaser of copies of any existing warranties for the Property, which warranties shall be re-issued in Purchaser’s name, at Seller’s sole cost and expense, if Seller does not have the right to assign same without the consent of the applicable warranty companies; provided, however that if the warranties have not been received or have not been re-issued in Purchaser’s name on or before Closing, Seller shall thereafter diligently and in good faith endeavor to obtain and deliver to Purchaser the warranties which shall be re-issued in Purchaser’s name. This Section 10.8 shall survive Closing.
10.9 Completion by Seller on or before the Closing Date of the Parking Lot Repairs (as defined in the First Amendment [as defined in the Lease Schedule]) in accordance with the terms of the First Amendment. In the event Seller has failed to complete the Parking Lot Repairs by the originally scheduled Closing Date, Purchaser shall have the right to extend the Closing Date to any business day up to and including July 2, 2012, by delivery of written notice to Seller and Title Company no later than two (2) business days prior to the originally scheduled Closing Date. If Purchaser has exercised its right to extend the Closing Date as provided in the preceding sentence, but the Parking Lot Repairs remain incomplete as of July 2, 2012, Seller shall deliver to Purchaser a post-closing escrow holdback agreement (the “Post-Closing Agreement”) executed by Seller pursuant to which Purchaser and Seller agree to, among other things, (a) require Seller to diligently complete the Parking Lot Repairs; and (b) escrow an amount equal to One Hundred Fifteen Percent (115%) of the estimated cost to complete the Parking Lot Repairs, which cost shall be estimated by Seller’s general contractor or architect, subject to Purchaser’s reasonable approval, with the escrowed funds to be utilized by the party which actually completes the Parking Lot Repairs. The parties shall negotiate the form of the Post-Closing Agreement in good faith prior to the extended Closing Date, and in the event the Post-Closing Agreement is not finalized as of the extended Closing Date, either party may further extend the Closing Date for up to ten (10) days to allow for the full negotiation of the Post-Closing Agreement. In the event any of the Purchaser’s Conditions shall not be satisfied as of the Closing Date.
(2) Each of , Purchaser shall have the right to terminate this Agreement by giving written notice to Seller and Andrxxx xxxll have performed receive a return of the Deposit and complied with all of its covenants hereunder in all material respects through the Closingany amount owing under Section 16.2 hereof, including but not limited to those set forth in Section 2 above.
(3) Seller whereupon neither party shall have procured all any further rights or obligations hereunder except for any provisions of the third party consents specified in this Agreement.
(4) No action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (C) affect adversely the right of Buyer to own the Assets and to operate the Businessthat expressly survive termination.
(5) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in this Section 6(a)(1)-(4) is satisfied in all respects.
(6) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect.
(7) Buyer shall have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement and the consummation of the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
(b) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1) The representations and warranties set forth in Section 5 above shall be true and correct in all material respects at and as of the Closing Date.
(2) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3) No action, suit or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation.
(4) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect. Seller or Andrxxx xxx waive any condition specified in this Section 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Credit Property Trust Iv, Inc.)
Conditions to Obligations to Close. (a) 7.1. Conditions to Obligation to Close of Uniphase Parties to be Satisfied at each Closing. The obligation of Buyer the Uniphase Parties to consummate the transactions to be performed by them in connection with the Closings is subject to satisfaction (or waiver in writing in Uniphase's sole and absolute discretion) of the following conditions:
(i) the representations and warranties set forth in Section 5 shall be true and correct in all material respects at and as of each Closing Date, as if made on such dates;
(ii) Philips shall have performed and complied with all of its covenants to be performed prior to each Closing; and
(iii) Philips shall have received all of the authorizations, consents and approvals of governments and governmental agencies identified on Schedule 5.4 as required to be obtained by Philips prior to each Closing; and
(iv) Philips shall have obtained in form and substance reasonably satisfactory to Uniphase all Permits the obtaining of which is material to the continuation of the Activity as presently conducted and which are identified in Schedule 5.13 as being material by designation with an asterisk.
7.2. Conditions to Obligation to Close of Philips. The obligations of Philips to consummate the transactions to be performed by it in connection with the Closing Closings is subject to satisfaction (or waiver in writing in Philips' sole and absolute discretion) of the following conditions:
(1i) The the representations and warranties set forth in Section 4 above shall be true and correct in all material respects at and as of the each Closing Date., as if made on such dates;
(2ii) Each of Seller and Andrxxx xxxll the Uniphase Parties shall each have performed and complied with all of its their respective covenants hereunder in all material respects through the to be performed prior to each Closing, including but not limited to those set forth in Section 2 above.; and
(3iii) Seller shall have procured all of the third party consents specified in this Agreement.
(4) No action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (C) affect adversely the right of Buyer to own the Assets and to operate the Business.
(5) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in this Section 6(a)(1)-(4) is satisfied in all respects.
(6) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect.
(7) Buyer Uniphase Parties shall have received copiesthe authorizations, certified consents and approvals of governments and governmental agencies required to be obtained by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement and the consummation of such Persons in connection with the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
(b) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1) The representations and warranties set forth in Section 5 above shall be true and correct in all material respects at and as of the Closing Date.
(2) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3) No action, suit or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation.
(4) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect. Seller or Andrxxx xxx waive any condition specified in this Section 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligations to Close. (a) The obligation obligations of Buyer Purchaser to consummate the transactions to contemplated herein shall be performed by it in connection with the Closing is subject to satisfaction the fulfillment of the following conditionsconditions ("Purchaser's Conditions"), any of which may be waived by Purchaser in its sole and absolute discretion:
(1) The representations and warranties set forth in Section 4 above of Seller made herein shall be true and correct in all material respects at respects, Seller shall have performed all covenants and as agreements made herein and Seller shall have delivered to Purchaser all of the Closing Dateclosing documents required pursuant to Section 11.1 hereof.
(2) Each Purchaser's receipt of Seller the Required Tenant Executed Estoppels and Andrxxx xxxll have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 aboveREA Estoppels (each as hereinafter defined).
(3) Seller shall have procured all of An unconditional agreement by the third party consents specified in this AgreementTitle Company to issue the Title Policy.
(4) No action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency Delivery of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any possession of the transactions contemplated by this Agreement, (B) cause any of Property to Purchaser subject only to the transactions contemplated by this Agreement to be rescinded following consummation or (C) affect adversely the right of Buyer to own the Assets Permitted Exceptions and to operate the Businessrights of Tenants under the Leases, as tenants only.
(5) Seller shall have delivered to Buyer a certificate to the effect that each As of the conditions specified above in this Section 6(a)(1)-(4) is satisfied in all respects.
(6) The relevant parties shall have entered intoClosing, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same there shall be in full force no default (and effect.
(7no event or circumstance that, with the passage of time and/or giving of notice, could be a default) Buyer shall have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement and the consummation of the transactions contemplated hereby.
(8) SanTi shall have entered into under any Lease with a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the ClosingMajor Tenant.
(b) The obligation obligations of Seller to consummate the transactions to contemplated herein shall be performed by it in connection with the Closing is subject to satisfaction the fulfillment of the following conditions:
conditions (1) "Seller's Conditions"), any of which may be waived by Seller in its sole and absolute discretion: The representations and warranties set forth in Section 5 above of Purchaser made herein shall be true and correct in all material respects at respects, Purchaser shall have performed all covenants and agreements made herein and Purchaser shall have delivered to Seller all of the closing documents required pursuant to Section 11.3 hereof. In the event any of the Purchaser's Conditions shall not be satisfied as of the Closing Date.
(2) Buyer , Purchaser shall have performed the right to terminate this Agreement by giving written notice to Seller and complied with all receive a return of its covenants the Deposit, whereupon neither party shall have any further rights or obligations hereunder in all material respects through except for any provisions of this Agreement that expressly survive termination. In the Closingevent that the Seller's Condition shall not be satisfied as of the Closing Date, including but Seller shall have the right to terminate this Agreement by giving written notice to Purchaser, whereupon the Deposit shall be returned to Purchaser and neither party shall have any further rights or obligations hereunder except for any provisions of this Agreement that expressly survive termination. In the event that any of Seller’s Conditions are not limited to those satisfied as a result of a default by Purchaser, then Seller shall have the remedies set forth in Section 2 above.
(3) No action, suit or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of 16.1 hereof. In the event that any of the transactions contemplated Purchaser’s Conditions are not satisfied as a result of a default by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation.
(4) The relevant parties Seller, then Purchaser shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to remedies set forth in Section 2 above, and the same shall be in full force and effect. Seller or Andrxxx xxx waive any condition specified in this Section 6(b) if it executes a writing so stating at or prior to the Closing16.2 hereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital - Retail Centers of America, Inc.)
Conditions to Obligations to Close. (a) Conditions to Obligation of Seller and Parent. The obligation obligations of Buyer Seller and Parent to consummate the transactions to be performed by it them in connection with the Closing is subject to satisfaction of the following conditions:
(1i) The the representations and warranties of Buyer set forth in Section 4 3(b) above shall be true and correct in all material respects at and as of the Closing Date.;
(2ii) Each of Seller and Andrxxx xxxll Buyer shall have performed and complied with all of its agreements and covenants hereunder and under each of the other Transaction Documents in all material respects through the Closing, including but not limited to those set forth in Section 2 above.;
(3iii) Seller no Law (whether temporary, preliminary or permanent) shall have procured all been enacted, entered, promulgated or enforced by any Governmental Authority of competent jurisdiction and no other legal restraint or prohibition shall be in effect which prohibits, restrains, enjoins or restricts the consummation of the third party consents specified in this Agreement.transactions contemplated by the Transaction Agreements;
(4iv) No no action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator Governmental Authority wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreementruling, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (C) affect adversely the right of Buyer to own the Assets and to operate the Business.
(5) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in this Section 6(a)(1)-(4) is satisfied in all respects.
(6) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect.
(7) Buyer shall have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement and the consummation of the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
(b) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1) The representations and warranties set forth in Section 5 above shall be true and correct in all material respects at and as of the Closing Date.
(2) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3) No action, suit or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or under the other Transaction Agreements, or (B) cause any of the transactions contemplated by this Agreement or under the other Transaction Documents to be rescinded following consummation.;
(4v) The relevant parties the waiting period (including any extensions thereof) applicable to the consummation of the transactions contemplated by this Agreement required pursuant to the HSR Act, to the extent necessary, shall have entered into, executed expired or been terminated;
(vi) Buyer shall have delivered to Seller and delivered Parent the Noncompetition Agreement, Sublease, Release closing deliveries set forth in Section 2(d); and
(vii) all actions to be taken by Buyer or any Affiliate of Buyer in connection with consummation of the transactions contemplated hereby and under the other agreements referred to in Section 2 aboveTransaction Documents and all certificates, instruments, and other documents required to effect the same shall transactions contemplated hereby and under the other Transaction Documents will be satisfactory in full force form and effect. substance to Seller or Andrxxx xxx waive any condition specified in this Section 6(b) if it executes a writing so stating at or prior to the Closingand Parent.
Appears in 1 contract
Conditions to Obligations to Close. (a) Conditions to Obligation of the Parent and Sub. The obligation of Buyer the Parent and Sub to consummate the transactions to be performed by it them in connection with the Closing is subject to satisfaction or waiver of the following conditions:
(1i) The the representations and warranties of the Shareholders as set forth in Section 4 above shall Sections 6(a) and 7 must be true true, correct and correct complete in all material Material respects at and as of the Closing Date.Date as evidenced by the delivery by the Shareholders to the Parent at Closing of the Shareholders' Closing Certificate to the effect that the representations and warranties of the Xxxxxx Shareholders and the Xxxxxxx Shareholders, as the case may be, as set forth in Sections 6(a) and 7 are true, correct and complete in all Material Respects as of the Closing Date to be attached to this Agreement as Exhibit G;
(2ii) Each of Seller and Andrxxx xxxll the Shareholders shall have performed and complied with all of its their covenants hereunder in this Agreement in all material Material respects through the Closing, including but not limited to those set forth in Section 2 above.;
(3iii) Seller the Target shall have procured all of the necessary third party consents specified in this Agreement.Section 7(c), if any, reasonably requested by Parent in connection with the matters pertaining to the Target disclosed or required to be disclosed in the Disclosure Schedules and each of the Shareholders shall have taken any additional action (and the Xxxxxx Shareholders shall have caused the Target to take any additional action) that may be necessary, proper, or advisable in connection with any other notices to, filings with, and authorizations, consents, and approvals of Governmental Bodies, and third parties that he, she or it may be required to give, make or obtain;
(4iv) No no action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling stipulation, injunction, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, or (C) affect adversely the right of Buyer the Parent or Sub to own own, operate, or control the Assets Shares or the Target (and to operate the Business.no such judgment, order, decree, stipulation, injunction, or charge shall be in effect);
(5v) Seller the Shareholders shall have delivered to Buyer a certificate the Parent the Shareholders' Closing Certificate (without qualification as to knowledge or Materiality or otherwise) to the effect that each of the conditions specified above in this Section 6(a)(1)-(49(a)(i)-(iv) is satisfied in all respects.respects to be attached to this Agreement as Exhibit G;
(6vi) The relevant parties the Shares must represent all of the issued and outstanding capital stock of the Target and all of the Shares must be free and clear of any Security Interests or other liens, claims or encumbrances of any nature whatsoever;
(vii) the Parties and the Target must have received all other authorizations, consents and approvals of Governmental Bodies including such authorizations, consents or approvals required under the HSR Act, if any, and set forth in the Disclosure Schedules;
(viii) the Parent must have received from counsel to the Xxxxxx Shareholders an opinion with respect to the matters set forth in Sections 6(a)(i) and 7(a)-(d) addressed to the Parent and dated as of the Closing Date in substantially the form attached to this Agreement as Exhibit H;
(ix) the Parent must have received the resignations, effective as of the Closing, of each officer and director of the Target;
(x) no Material adverse change shall have entered intooccurred in the Target's Business or its future prospects;
(xi) any debt listed on Disclosure Schedule 9(a)(xi) has been paid in full;
(xii) except as set forth in the Disclosure Schedules, executed since the date of the Most Recent Financial Statement the Target must not have transferred, conveyed, disposed of and/or sold any of Material assets, except in the Ordinary Course of Business;
(xiii) the Target must have delivered to the Parent a certificate from the Target's treasurer stating that from the date of the Most Recent Financial Statement to the Closing Date there has been no change in the capitalization of the Target or any Material adverse change in its financial condition or assets;
(xiv) the Shareholders must have delivered to the Parent certificates representing the Shares, which shall be cancelled and exchanged for the Merger Consideration, and otherwise must have satisfied fully all of their obligations required by this Agreement to be satisfied before or at Closing;
(xv) the Target must not be in a bankruptcy, reorganization or insolvency proceeding nor shall any such proceeding be contemplated;
(xvi) Xxxxxx X. Xxxxxx (A) must have secured complete ownership and control of United States Patent Number 5,105,672 (the "Patent") by securing all of the right, title and interest of his co-patent holder in and to the Patent and must have assigned the Patent to the Sub using the Assignment attached to this Agreement as Exhibit M, and (B) must have secured complete ownership and control of United States Trademark Registration No. 1347219 for ROTO-LOK(R) and must have assigned it to the Sub using the Assignment attached to this Agreement as Exhibit N, and (C) must assign to the Sub all interest he may have to the unregistered trademark for "Technology in Harmony with Native" and related solar system logo using the Assignment attached to this Agreement as Exhibit O;
(xvii) Xxxxxx X. Xxxxxx must have signed and delivered the Noncompetition Consulting Agreement (Exhibit E) with attached Confidentiality Agreement;
(xviii) August Xxxxxxx must have signed and delivered the Employment Agreement (Exhibit F) with attached Confidentiality Agreement;
(xix) the Xxxxxx Shareholders must have delivered to the Parent a Certificate of Good Standing from the State of New Mexico, Subleasedated within five (5) business days prior to the Closing Date, certifying that the Target is in good standing in the State of New Mexico;
(xx) the Shareholders must have delivered to the Parent the Release attached as Exhibit I and dated as of the Closing Date, whereby the Shareholders release the Target from any and all claims and causes of action they may have against the Target as of the Closing Date;
(xxi) the Xxxxxx Shareholders must have delivered to the Parent and the other agreements referred Sub all minutes related to in Section 2 above, and the same shall be in full force and effect.Target for the past three years; and
(7xxii) Buyer shall the Xxxxxx Shareholders and August Xxxxxxx must have received copiesdelivered to the Parent, certified Officer, Directors and Significant Employee Questionnaires as prepared by the President of SellerParent and completed by Xxxxxx X. Xxxxxx, of resolutions adopted by the Board of Directors of Seller Xxxxx Xxxxxx and by Andrxxx xxxroving this Agreement and the consummation of the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory in form and substance to BuyerAugust Xxxxxxx. Buyer The Parent may waive any condition specified in this Section 6(a9(a) if it executes a writing so stating at or prior to the Closing.
(b) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1) The representations and warranties set forth in Section 5 above shall be true and correct in all material respects at and as of the Closing Date.
(2) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3) No action, suit or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation.
(4) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect. Seller or Andrxxx xxx waive any condition specified in this Section 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligations to Close. (a) The 7.1 Conditions to Parent’s Obligation. Parent’s obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1a) The the representations and warranties set forth in Section 4 3 above shall be true and correct in all material respects at and as of the Closing Date.
(2) Each of Seller and Andrxxx xxxll have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3) Seller shall have procured all of the third party consents specified in this Agreement.
(4) No action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (C) affect adversely the right of Buyer to own the Assets and to operate the Business.
(5) Seller shall have delivered to Buyer a certificate except to the effect extent that each of the conditions specified above in this Section 6(a)(1)-(4) is satisfied in all respects.
(6) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect.
(7) Buyer shall have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement and the consummation of the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
(b) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1) The such representations and warranties set forth are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in Section 5 above which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all material respects at and as of the Closing Date.;
(2b) Buyer the Company shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case The Company shall have performed and complied with all of such covenants (as so written, including but not limited to those set forth the term “material” or “Material”) in all respects through the Closing;
(c) the Company shall have procured all of the third-party consents specified in Section 2 3.3 above.;
(3d) No no action, suit suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local local, or foreign jurisdiction or before (or that could come before) any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (Ai) prevent consummation of any of the transactions contemplated by this Agreement or Agreement, (Bii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation., (iii) adversely affect in any material way the right of Parent to own and control the Company, or (iv) adversely affect the right of the Company to own its assets and to operate its business (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(4e) The relevant parties the Company shall have entered intodelivered to Parent a certificate to the effect that each of the conditions specified above in Section 7.1(a)-(d) is satisfied in all respects;
(f) the Company shall have received all other authorizations, executed consents, and delivered the Noncompetition Agreement, Sublease, Release approvals of governments and the other agreements governmental agencies referred to in Section 2 above3.3;
(g) Company Members representing at least 80% of the Class B Historical Percentage Interests (as defined in the Company Operating Agreement) shall have entered into Agent Reseller Agreements with the Surviving Company;
(h) all actions to be taken by the Company in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the same transactions contemplated hereby shall be satisfactory in full force form and effect. Seller substance to Parent;
(i) the Company shall have obtained and delivered to Parent a written consent for the assignment of each of the Leases, and, if requested by Parent’s lender, a waiver of landlord liens, collateral assignment of lease or Andrxxx xxx leasehold mortgage from the landlord or other party whose consent thereto is required under such Lease (the “Lease Consents”), in form and substance satisfactory to Parent and Parent’s lender;
(j) the Company shall deliver to Parent a non-foreign affidavit dated as of the Closing Date, sworn under penalty of perjury and in form and substance required under the Treasury Regulations issued pursuant to Code §1445 stating that the Company is not a “Foreign Person” as defined in Code §1445 (the “FIRPTA Affidavit”);
(k) the Company shall have delivered to Parent copies of the certificate of organization of the Company on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of the Company;
(l) the Company shall have delivered to Parent copies of the certificate of good standing of the Company issued on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of the Company and of each jurisdiction in which the Company is qualified to do business;
(m) the Company shall have delivered to Parent a certificate of the secretary of the Company, dated the Closing Date, in form and substance reasonably satisfactory to Parent, as to: (i) no amendments to the certificate of organization (or formation) of the Company since the date specified in clause (xvii) above; (ii) the operating agreement (or other governing documents) of the Company; (iii) the resolutions of the voting members or the Company board of directors or other authorizing body (or a duly authorized committee thereof) of the Company, authorizing the execution, delivery, and performance of this Agreement and the transactions contemplated hereby; and (iv) incumbency and signatures of the officers of the Company executing this Agreement or any other agreement contemplated by this Agreement;
(n) Parent may waive any condition specified in this Section 6(b) 7.1 if it executes a writing so stating at or prior to the Closing;
(o) Parent shall have received from counsel to the Company and the Company members, an opinion, dated the Closing Date, in a form reasonably acceptable to Parent;
(p) Parent shall have received a waiver of NPC’s right of first refusal or written communication from NPC stating its intention to pass on the right of first refusal with respect to the transaction set forth in this Agreement;
(q) Parent shall have received approval for the transactions contemplated by this Agreement from holders of Parent’s convertible notes, or such convertible notes are paid in full in connection with the Closing;
(r) Within ten (10) days of the date of this Agreement, the Company’s Class A Members shall have approved this Agreement and the transactions contemplated hereby by the requisite vote.
Appears in 1 contract
Samples: Merger Agreement (Pipeline Data Inc)
Conditions to Obligations to Close. (a) 7.1 Buyer’s Conditions The obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver of the following conditions, provided that Buyer may waive any condition specified in this Section 7.1 only if Buyer executes a writing so stating at or before the Closing:
(1a) Covenants, Representations and Warranties The respective representations and warranties of Seller set forth in Section 4 above shall Article III must be true and correct in all material respects (except for those representations and warranties that contain an express materiality qualification, which must be true and correct in all respects) on the date made and at and as of the Closing Date.
(2) Each of , and Seller and Andrxxx xxxll must have performed and complied with all of its covenants hereunder in all material respects through the ClosingClosing Date, including but not limited and Buyer must have received a certificate in form and substance satisfactory to those set forth Buyer dated as of the Closing Date on behalf of Seller by the president of Seller or an equivalent officer to such effect.
(b) Consents Seller must have procured all Required Consents and must have provided evidence of such Required Consents and notices in Section 2 aboveform and substance reasonably satisfactory to Buyer. Buyer must have received all Governmental Authorizations as are necessary to allow Buyer to operate the Mac Nut Business and the Leased Assets and Purchased Assets from and after the Closing Date.
(c) Documents to Be Delivered By Seller The following documents, in form and substance satisfactory to Buyer, must be delivered to Buyer at Closing by Seller:
(1) xxxx of sale, duly executed by Seller;
(2) assignment and assumption agreements, duly executed by Seller, in a form mutually agreeable to both parties;
(3) Seller shall have procured all assignment of Seller’s Intellectual Property described in Schedule 2.1(j), in due form for recordation with the third party consents specified in this appropriate Governmental Authority and the License Agreement., each duly executed by Seller;
(4) No actionvehicle titles and assignments sufficient to transfer title to the Owned and Leased Vehicles to Buyer;
(5) orchard lease agreement in the form of Exhibit A-1 hereto (the “Orchard Lease Agreement”), suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would duly executed by Seller;
(A6) prevent consummation of any memorandum of the transactions contemplated Orchard Lease Agreement in the form of Exhibit A-2 hereto (the “Memorandum of Lease”), duly executed by this Seller;
(7) processing plant lease agreement in the form of Exhibit B-1 hereto (the “Processing Plant Lease Agreement”), duly executed by Seller;
(8) memorandum of the Processing Plant Lease Agreement in the form of Exhibit B-2 hereto (the “Memorandum of Plant Lease”), duly executed by Seller;
(9) the Registration Rights Agreement duly executed by Seller;
(10) reserved;
(11) originals (to the extent available) or copies of the Acquired Contracts and Seller Permits;
(12) if applicable, executed non-foreign certificates in accordance with Section 1445 of the Code and the regulations issued thereunder;
(13) State of Hawaii Department of Taxation Form G-8A, Report of Bulk Sale or Transfer, duly executed by Seller, together with the attached certificate of the Director of Taxation of the State of Hawaii, bearing an issuance date no earlier than ten (10) days before Closing;
(14) Tax Clearance Certificate (Form A-6) issued by the Hawaii State Department of Taxation no earlier than fifteen (15) days before Closing;
(15) Hawaii State Tax Form N-289, duly executed by Seller;
(16) Conveyance Tax Certificates relating to the Orchard Lease Agreement and Processing Plant Lease Agreement, duly executed by Seller;
(B17) cause the Required Consents (as listed in Exhibit F);
(18) payoff and release letters relating to liens on the Purchased Assets;
(19) the Books and Records;
(20) certificate of Secretary of Seller duly executed by Seller;
(21) originals of lien releases, including Uniform Commercial Code Termination Statements, executed by Rabobank in connection with any Security Interests on the Purchased Assets in favor of Rabobank;
(22) stock powers and assignment of membership interests, as applicable, relating to NewCo1 and NewCo2, duly-executed by Seller; and
(23) such other certificates, instruments of sale, transfer, conveyance, and assignment or other documents reasonably requested by Buyer and as otherwise necessary or appropriate to transfer the Purchased Assets and Assumed Liabilities, or as Buyer may reasonably request to consummate the transactions contemplated by this Agreement to be rescinded following consummation or (C) affect adversely and the right of Buyer to own the Assets Related Agreements and to operate vest in Buyer full and complete title to the BusinessPurchased Assets, free and clear of all encumbrances.
(5d) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in this Section 6(a)(1)-(4) is satisfied in all respects.
(6) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect.
(7) Buyer shall have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement and the consummation of the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
(b) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction Financial Condition Each of the following conditionsmust be true and complete as of the Closing Date:
(1) The representations and warranties set forth in Section 5 above All respective Security Interests securing debts of Seller relating to the Purchased Assets shall be true and correct paid in all material respects at and as of full before, or at, the Closing Date.Closing; and
(2) Buyer shall have performed No unsatisfied liens for the failure to pay Taxes (except for liens for any current real and complied with personal property taxes and all non-delinquent installments of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3assessments or bonds) No action, suit or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of nature whatsoever exist concerning the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummationMac Nut Business.
(4) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect. Seller or Andrxxx xxx waive any condition specified in this Section 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligations to Close. (a) 9.1 Conditions to Aspec's Obligation to Close. The obligation obligations of Buyer Aspec to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1a) The the representations and warranties of SIS and the Majority Shareholders set forth in Section 4 5 above shall be true and correct in all material respects at and as of the Closing Date.;
(2b) Each of Seller SIS and Andrxxx xxxll the Majority Shareholders shall have performed and complied with all of its their respective covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.;
(3c) Seller SIS shall have procured all obtained such of the third party consents specified in this Agreement.listed on Section 5.4 of the SIS Disclousre Schedule as may be mutually agreed to by Aspec and SIS;
(4d) No no action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local local, or foreign jurisdiction or before any arbitrator (other than such an action initiated by Aspec or Merger Sub) wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, or (C) affect materially and adversely the right of Buyer Aspec or Merger Sub to own control SIS following the Assets Effective Time of the Merger, and no law, statute, ordinance, rule, regulation or order shall have been enacted, enforced or entered which has caused or will likely cause any of the effects under clause (A), (B) or (C) of this Section 9.1(d) to operate the Businessoccur.
(5e) Seller the President and the Chief Financial Officer of SIS and the Majority Shareholders shall have delivered to Buyer Aspec a certificate to the effect that each of the conditions specified above in this Section 6(a)(1)-(49.1(a) to 9.1(d) (inclusive) is satisfied in all material respects.;
(6f) The relevant parties No Material Adverse Effect shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred occurred with respect to in Section 2 above, and the same shall be in full force and effect.SIS;
(7g) Buyer Aspec shall have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement from counsel to SIS and the consummation of the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory Majority Shareholders an opinion in form and substance to Buyer. Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
(b) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1) The representations and warranties as set forth in Section 5 above shall be true Exhibit E attached hereto, addressed to Aspec, and correct in all material respects at and dated as of the Closing Date;
(h) this Agreement and the Merger shall have been approved by the vote of the holders of at least 90% of the outstanding shares of Common Stock of SIS.
(2i) Buyer certain outstanding indebtedness of SIS in the amount of $85,000 payable to a SIS shareholder shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.been repaid or canceled;
(3j) No actionall outstanding options, suit or proceeding shall be pending before any court or quasi-judicial or administrative agency convertible securities and other Stock Rights to purchase securities of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation.
(4) The relevant parties SIS shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect. Seller been exercised or Andrxxx xxx waive any condition specified in this Section 6(b) if it executes a writing so stating at or prior to the Closing.canceled; and
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Aspec Technology Inc)
Conditions to Obligations to Close. (a) Conditions to Obligations of Theater. The obligations of Theater set forth in this Agreement (including, without limitation, the obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is Merger) are subject to satisfaction of the following conditions:
(1i) This Agreement shall have been adopted and approved and the Merger shall have been approved by more than 50% of the stockholders of Theater and by more than 50% of the stockholders of BF;
(ii) The representations and warranties set forth in Section 4 above 7 and the representations and warranties of Messrs. Xxxxxxx and Xxxx set forth in Section 9 shall be true and correct in all material respects at and as of the Closing Date.Effective Time;
(2iii) Each of Seller and Andrxxx xxxll BF shall have performed and complied with all of its covenants hereunder in all material respects through required to be performed at or prior to the Closing, including but not limited to those set forth in Section 2 above.Effective Time;
(3iv) Seller BF shall have procured all no more than 1,250,000 shares of its common stock outstanding and shall not have any shares of its preferred stock outstanding as of the third party consents specified in this Agreement.Effective Time;
(4v) No action, suit suit, or proceeding shall be pending or threatened against BF before any court or quasi-judicial or administrative agency of any federalFederal, state, local local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (C) affect adversely the right of Buyer to own the Assets and to operate the Business.
(5) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in this Section 6(a)(1)-(4) is satisfied in all respects.
(6) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect.
(7) Buyer shall have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement and the consummation of the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
(b) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1) The representations and warranties set forth in Section 5 above shall be true and correct in all material respects at and as of the Closing Date.
(2) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3) No action, suit or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause of any of the transactions contemplated by this Agreement to be rescinded following consummation.;
(4vi) The relevant parties BF shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 aboveTheater a certificate of BF's Secretary attaching, and certifying that each such attachment is true, correct, complete and in effect on the same shall be in full force Closing Date: (A) resolutions of the Board of Directors of BF with respect to all transactions contemplated by this Agreement; (B) resolutions or minutes of meeting of BF stockholders adopting this Agreement and effect. Seller or Andrxxx xxx waive any condition specified in this Section 6(bapproving the Merger; and (C) if it executes a writing so stating at or good standing certificate for BF issued by the Secretary of State of the State of Florida dated not more than fifteen days prior to the ClosingClosing Date;
(vii) No state or federal securities regulator (including the Securities and Exchange Commission) shall have issued a stop order with respect to the trading of any shares of BF capital stock or shall have commenced any inquiry with respect to any filing made by BF with any such regulator or shall have commenced any investigation with respect to BF.
Appears in 1 contract
Samples: Merger Agreement (Theater Xtreme Entertainment Group, Inc)
Conditions to Obligations to Close. (a) The obligation obligations of Buyer Purchaser to consummate the transactions to contemplated herein shall be performed by it in connection with the Closing is subject to satisfaction the fulfillment of the following conditionsconditions ("Purchaser's Conditions"), any of which may be waived by Purchaser in its sole and absolute discretion:
(1) 10.1 The representations and warranties set forth in Section 4 above of Seller made herein shall be true and correct in all material respects respects, Seller shall have performed all covenants and agreements made herein and Seller shall have delivered to Purchaser all of the closing documents required pursuant to Section 11.1 hereof.
10.2 Purchaser's receipt of the Required Tenant Executed Estoppels (as hereinafter defined).
10.3 An unconditional and irrevocable agreement by the Title Company to issue the Title Policy.
10.4 Delivery of possession of the Property to Purchaser subject only to the Permitted Exceptions and to the rights of Tenants under the Leases, as tenants only.
10.5 Receipt of an executed estoppel certificate from the other parties to the REAs in the form of Exhibit "C-8" attached hereto and made a part hereof or, as to Target, in such form as may be provided in the applicable Target REA (collectively, the "REA Estoppels").
10.6 As of the Closing Date, no Major Tenant shall have (a) filed a petition in bankruptcy, (b) been adjudicated insolvent or bankrupt, (c) petitioned a court for the appointment of any receiver of or trustee for it or any substantial part of its property, (d) commenced any proceeding under any reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect, (e) become the subject of an involuntary bankruptcy petition, (f) vacated its leased premises, or (g) had its Lease terminated. There shall not have been commenced and be pending against any Tenant any proceeding of the nature described in the first sentence of this subparagraph. No order for relief shall have been entered with respect to any Major Tenant under the Federal Bankruptcy Code. For purposes of this Agreement, the term Major Tenant shall be limited to Dollar Tree, PetSmart, Ross, Aarons, Rack Room, Jason’s Deli, Palm Beach Tan and Dickey’s.
10.7 Delivery to Purchaser of evidence that any existing management agreement and/or leasing agreement entered into by Seller with respect to the Property has been terminated.
10.8 Delivery to Purchaser of copies of any existing warranties for the Property, which warranties shall be re-issued in Purchaser's name, at Seller's sole cost and expense, if Seller does not have the right to assign same without the consent of the applicable warranty companies. In the event any of the Purchaser's Conditions shall not be satisfied as of the Closing Date.
(2) Each of , Purchaser shall have the right to terminate this Agreement by giving written notice to Seller and Andrxxx xxxll have performed receive a return of the Deposit and complied with all of its covenants hereunder in all material respects through the Closingany amount owing under Section 16.2 hereof, including but not limited to those set forth in Section 2 above.
(3) Seller whereupon neither party shall have procured all any further rights or obligations hereunder except for any provisions of the third party consents specified in this Agreement.
(4) No action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (C) affect adversely the right of Buyer to own the Assets and to operate the Businessthat expressly survive termination.
(5) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in this Section 6(a)(1)-(4) is satisfied in all respects.
(6) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect.
(7) Buyer shall have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement and the consummation of the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
(b) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1) The representations and warranties set forth in Section 5 above shall be true and correct in all material respects at and as of the Closing Date.
(2) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3) No action, suit or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation.
(4) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect. Seller or Andrxxx xxx waive any condition specified in this Section 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital - Retail Centers of America, Inc.)
Conditions to Obligations to Close. (a) The obligation of Buyer each party hereto to consummate the transactions to be performed by it in connection with the Closing set forth herein is subject to the satisfaction (or waiver (except for Sections 17(a), (b), (c) and (d) which cannot be waived)) prior to or at Closing of each of the following conditions:
(1a) Approval of the amendments to the Articles of Incorporation of Brunswick as set forth in the Articles of Amendment by the directors and shareholders of Brunswick as required by applicable South Dakota corporate law.
(b) Execution by all of the existing directors of Brunswick of the Writing in Lieu of Special Meeting of Directors as described in section 10 above and substantially in the form attached as Exhibit H hereto concerning an amendment to the By-Laws of Brunswick.
(c) Execution by the Shareholders of the Writing in Lieu of a Special Meeting of Shareholders as described in section 10 above and substantially in the form attached as Exhibit I hereto concerning the election of new directors of Brunswick.
(d) The approval of the amendments to the Articles of Incorporation of Brunswick set forth in the Articles of Amendment by a majority of the holders of the Existing Preferred Shares.
(e) Receipt of a Certificate of Amendment from the South Dakota Secretary of State evidencing the effectiveness of the Amendments to Articles of Incorporation.
(f) Execution by Xxxxx and receipt by Brunswick of the Xxxxx Agreement.
(g) Execution by TIC and receipt by Brunswick of the TIC Agreement.
(h) The Escrow Agreement shall have been executed in accordance with Section 5 hereof.
(i) Each of the representations and warranties of all other parties set forth in Section 4 above this Agreement shall be true and correct in all material respects at on and as of the Closing Date.
(2j) Each of Seller and Andrxxx xxxll have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3) Seller shall have procured all of the third party consents specified in this Agreement.
(4) No action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (C) affect adversely the right of Buyer to own the Assets and to operate the Business.
(5) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in this Section 6(a)(1)-(4) is satisfied in all respects.
(6) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect.
(7) Buyer shall have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement and the consummation of the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
(b) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1) The representations and warranties set forth in Section 5 above shall be true and correct in all material respects at and as of the Closing Date.
(2) Buyer parties hereto shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited obligations and conditions to those set forth in Section 2 abovebe performed or complied with by him or it hereunder.
(3k) Each of the other parties thereto shall have executed and delivered all other Transaction Documents.
(l) No actionstatute, suit rule, or proceeding regulation of any Regulatory Authority or any Order shall be pending before in effect which prohibits any court party hereto or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of to the other Transaction Documents from consummating the transactions contemplated by this Agreement hereby or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummationthereby.
(4) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect. Seller or Andrxxx xxx waive any condition specified in this Section 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Agreement Concerning Issuance of Shares (Inc Ubator Capital Inc)
Conditions to Obligations to Close. (a) 9.1 Conditions to Aspec's Obligation to Close. The obligation obligations of Buyer Aspec to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1a) The the representations and warranties of Verilux and the Majority Shareholders set forth in Section 4 5 above shall be true and correct in all material respects at and as of the Closing Date.;
(2b) Each of Seller Verilux and Andrxxx xxxll the Majority Shareholders shall have performed and complied with all of its their respective covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.;
(3c) Seller Verilux shall have procured all obtained such of the third party consents specified in this Agreement.listed on Section 5.4 of the Verilux Disclosure Schedule as may be mutually agreed to by Aspec and Verilux;
(4d) No no action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local local, or foreign jurisdiction or before any arbitrator (other than such an action initiated by Aspec or Merger Sub) wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, or (C) affect materially and adversely the right of Buyer Aspec or Merger Sub to own control Verilux following the Assets Effective Time of the Merger, and no law, statute, ordinance, rule, regulation or order shall have been enacted, enforced or entered which has caused or will likely cause any of the effects under clause (A), (B) or (C) of this Section 9.1(d) to operate the Businessoccur.
(5e) Seller the President and the Chief Financial Officer of Verilux and the Majority Shareholders shall have delivered to Buyer Aspec a certificate to the effect that each of the conditions specified above in this Section 6(a)(1)-(49.1(a) to 9.1(d) (inclusive) is satisfied in all material respects.;
(6f) The relevant parties No Material Adverse Effect shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred occurred with respect to in Section 2 above, and the same shall be in full force and effect.Verilux;
(7g) Buyer Aspec shall have received copiesfrom counsel to Verilux and the Majority Shareholders an opinion in form and substance as set forth in Exhibit E attached hereto, certified by addressed to Aspec, and dated as of the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving Closing Date;
(h) this Agreement and the consummation Merger shall have been approved by the vote of the transactions contemplated hereby.holders of 100% of the outstanding shares of Common Stock of Verilux;
(8) SanTi i) all outstanding options, convertible securities and other Stock Rights to purchase securities of Verilux shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.been exercised or canceled; and
(9j) Buyer Soo-Young Oh, Kuo-Hak Xxx, Xxn-Younx Xxxx, Xxng-Jun Kwon, and Hyun-Gan Xxx xxxll have accepted employment with the Surviving Corporation; and
(k) Aspec's Board of Directors shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory in form and substance to Buyerapproved this Agreement. Buyer Aspec may waive any condition (in whole or in part) specified in this Section 6(a) 9.1 if it executes a writing so stating at or prior to the Closing.
(b) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1) The representations and warranties set forth in Section 5 above shall be true and correct in all material respects at and as of the Closing Date.
(2) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3) No action, suit or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation.
(4) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect. Seller or Andrxxx xxx waive any condition specified in this Section 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligations to Close. (a) VI.1 Conditions to Obligation of MRS II and the Physician Owner. The obligation of Buyer MRS II and the Physician Owner to consummate the transactions to be performed contemplated by it in connection with the Closing this Agreement is subject to satisfaction of the following conditions:
(1a) The the Requisite MRS II Approval shall have been obtained;
(b) the representations and warranties set forth in Section 4 ARTICLE III above shall be true and correct in all material respects at and as of the Closing Date.;
(2c) Each of Seller and Andrxxx xxxll have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3) Seller shall have procured all of the third party consents specified in this Agreement.
(4) No no action, suit suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation consummation, or (C) affect adversely the right rights of Buyer MRS II or the Physician Owner to own the Assets and to operate the Business.Purchased Assets;
(5d) Seller shall have delivered all actions to Buyer a certificate to the effect that each of the conditions specified above be taken by SCN in this Section 6(a)(1)-(4) is satisfied in all respects.
(6) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect.
(7) Buyer shall have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement and connection with the consummation of the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinionsinstruments, instruments agreements, and other documents required to effect the transactions contemplated hereby, will be have been taken or delivered to MRS II and the Physician Owner and are satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.substance;
(be) The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(1) The representations and warranties set forth in Section 5 above shall be true and correct in all material respects at and as of the Closing Date.
(2) Buyer SCN shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.; and
(3f) No actionneither the surrender of the SCN Shares by MRS II and/or the Physician Owner, suit nor the issuance of the MRS II Note will violate federal securities laws or proceeding shall be pending before any court or quasi-judicial or administrative agency the securities laws of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any state of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation.
(4) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release United States. MRS II and the other agreements referred to in Section 2 above, and the same shall be in full force and effect. Seller or Andrxxx xxx Physician Owner may waive any condition specified in this Section 6(b) if it executes SECTION 6.1 by executing a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligations to Close. (a) The obligation 10.1 In addition to any other condition precedent or contingencies in favor of Buyer Purchaser as may be expressly set forth elsewhere in this Agreement, the obligations of Purchaser to consummate the transactions to contemplated herein shall be performed by it in connection with the Closing is subject to satisfaction the fulfillment of the following conditions:
conditions (1the “Purchaser Conditions”), any of which may be waived by Purchaser in its sole and absolute discretion: (i) The the representations and warranties set forth in Section 4 above of Seller made herein shall be true and correct in all material respects as of the date made and shall remain and be true and correct as of the Closing Date in all material respects as though such representations and warranties were made at and as of the Closing Date.
, (2) Each of Seller and Andrxxx xxxll have performed and complied with all of its covenants hereunder in all material respects through the Closing, including but not limited to those set forth in Section 2 above.
(3ii) Seller shall have procured delivered all of the third party consents specified documents and other items required pursuant to this Agreement and Seller shall have performed all of its covenants, agreements and obligations hereunder, and at Closing, Seller shall be the sole fee owner of the entirety of the Property; (iii) Seller shall have caused Tenant to execute and deliver the Lease in this Agreement.
the form attached as Exhibit C-1, with any blanks completed, dates inserted and other changes (4if any) No actionwhich are mutually agreed upon by Seller and Purchaser, suit which Lease shall provide, inter alia, that (a) the Lease is a net lease, (b) the base annual rental payable under the Lease for the first lease year is not less than $3,375,418.99 (or $3,820,375,000.00, if the Battery Storage Property is included in the Property as provided in Section 2.4 above); (c) the base annual rental under the Lease shall increase by three percent (3%) annually, and (d) the Lease is for a twenty (20) year initial lease term, with three 10-year renewal options; (iv) Seller shall be solvent and not in receivership, and shall not have committed any act of bankruptcy or have made or suffered a fraudulent conveyance; (v) no action or proceeding shall be pending or contemplated by or against Seller under the federal bankruptcy code or any state law for the relief of debtors or for the enforcement of the rights of creditors, and no attachment, execution, lien, or levy shall have attached to, threatened before to be attached to, or have been issued with respect to Seller’s interest in any of the Property or any portion thereof (other than liens in existence as of the Effective Date and/or which are included in Seller’s Required Removal Items under this Agreement); (vi) the environmental, legal and physical condition of the Property on the Closing Date shall not be or have been materially and adversely impacted, changed or altered in any manner from as it existed on the expiration of the Inspection Period (and expressly excluding any impacts, changes or alterations caused solely by the acts of Purchaser); (vii) if requested by Purchaser, Purchaser’s receipt, no later than five (5) business days prior to the Closing, of the Tenant Executed Estoppel (as hereinafter defined), the SNDA (as hereinafter defined), that are satisfactory or deemed satisfactory to Purchaser; (ix) the state of title to the Property shall be as provided herein, and there shall be an unconditional and irrevocable agreement by the Title Company to issue the Title Policy; (x) delivery of possession of the Property to Purchaser subject only to the Permitted Exceptions and to the rights of Tenant under the Lease, as tenant only; (xi) no order or injunction of any court or quasi-judicial or administrative agency of competent jurisdiction, nor any federalstatute, staterule, local regulation or foreign jurisdiction executive order, in effect as of the Closing shall restrain or prohibit the transfer of the Property in accordance with the terms of this Agreement; (xii) no action, suit or other proceeding shall be pending which shall have been brought by any person or entity (other than Seller, Purchaser or Tenant) to restrain, prohibit or change in any material respect the purchase and sale of the Property in accordance with the terms of this Agreement; and (xiii) all conditions precedent elsewhere set forth in this Agreement shall have been satisfied or waived.
10.2 In the event that any of the Purchaser Conditions shall not be satisfied as of the Closing Date, Seller may, at Seller’s option, adjourn the Closing Date on a one-time basis for a period not exceeding sixty (60) days to allow Seller additional time to satisfy Purchaser Conditions. Notwithstanding the foregoing, if Seller does not elect to adjourn the Closing Date as provided above or Seller adjourns the Closing Date but is still unable to satisfy Purchaser Conditions, then Purchaser shall have the right to either (i) terminate this Agreement by written notice to Seller on or before the Closing Date, in which event the Deposit shall be promptly returned to Purchaser and neither party shall have any arbitrator wherein an unfavorable injunctionfurther rights against the other except for obligations which expressly survive the termination of this Agreement, judgmentor (ii) on a one-time basis, orderadjourn the Closing Date for a period not exceeding thirty (30) days to allow Seller additional time to satisfy such Purchaser Conditions, decreeor (iii) close on the purchase of the Property without any abatement or reduction of the Purchase Price or other liability on the part of Seller, ruling or charge would (Aiv) prevent consummation if the failure of any of the transactions contemplated Purchaser Conditions to be satisfied is the result of an intentional act by Seller, seek to enforce the sale of the Property by maintaining an action for specific performance of this Agreement. Seller’s extension right under this Section 10 shall be concurrent with, and shall not be cumulative of, any right of extension exercised by Seller pursuant to Section 4.1.3 hereof. In any instance in which either Purchaser or Seller has the right to extend the Closing Date as set forth above in this paragraph, the Closing Date shall occur within five (5) business days following the date upon which the condition in question is satisfied, notwithstanding that the maximum number of days for such extension may be greater than the date which is five (5) business days following the satisfaction of such condition.
10.3 In addition to any other condition precedent or contingencies in favor of Seller as may be expressly set forth elsewhere in this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (C) affect adversely the right of Buyer to own the Assets and to operate the Business.
(5) Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in this Section 6(a)(1)-(4) is satisfied in all respects.
(6) The relevant parties shall have entered into, executed and delivered the Noncompetition Agreement, Sublease, Release and the other agreements referred to in Section 2 above, and the same shall be in full force and effect.
(7) Buyer shall have received copies, certified by the President of Seller, of resolutions adopted by the Board of Directors of Seller and by Andrxxx xxxroving this Agreement and the consummation of the transactions contemplated hereby.
(8) SanTi shall have entered into a Shareholders' Agreement with Andrxxx xxx with John X. Xxxxxx xx to the SanTi Stock, which Shareholders' Agreement contains terms and conditions satisfactory to SanTi.
(9) Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated hereby and to fund the working capital requirements of the Business after the Closing.
(10) All actions to be taken by Seller and Andrxxx xx connection with consummation of the transactions contemplated hereby, and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby, will be satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 6(a) if it executes a writing so stating at or prior to the Closing.
(b) The obligation obligations of Seller to consummate the transactions to contemplated herein shall be performed by it in connection with the Closing is subject to satisfaction the fulfillment of the following conditions:
conditions (1the “Seller Conditions”), any of which may be waived by Seller in its sole and absolute discretion: (i) The the representations and warranties set forth in Section 5 above of Purchaser made herein shall be true and correct in all material respects as of the date made and shall remain and be true and correct as of the Closing Date in all material respects as though such representations and warranties were made at and as of the Closing Date.
, (2ii) Buyer Purchaser shall have delivered all of the documents and other items required pursuant to this Agreement and Purchaser shall have performed and complied with all of its covenants hereunder covenants, agreements and obligations hereunder; (iii) Purchaser shall have executed and delivered the Lease; (iv) Purchaser shall be solvent and not in all material respects through the Closingreceivership, including but and shall not limited to those set forth in Section 2 above.
have committed any act of bankruptcy or have made or suffered a fraudulent conveyance; (3v) No action, suit no action or proceeding shall be pending before or contemplated by or against Purchaser under the federal bankruptcy code or any state law for the relief of debtors or for the enforcement of the rights of creditors; (vi) no order or injunction of any court or quasi-judicial or administrative agency of competent jurisdiction, nor any federalstatute, staterule, local regulation or foreign jurisdiction executive order, in effect as of the Closing shall restrain or prohibit the transfer of the Property in accordance with the terms of this Agreement; (vii) no action, suit or other proceeding shall be pending which shall have been brought by any person or entity (other than Seller, Purchaser or Tenant) to restrain, prohibit or change in any material respect the purchase and sale of the Property in accordance with the terms of this Agreement; and (viii) all conditions precedent elsewhere set forth in this Agreement shall have been satisfied or waived.
10.4 In the event that any of the Seller Conditions shall not be satisfied as of the Closing Date, Purchaser may, at Purchaser’s option, adjourn the Closing Date on a one-time basis for a period not exceeding sixty (60) days to allow Purchaser additional time to satisfy Seller Conditions. Notwithstanding the foregoing, if Purchaser does not elect to adjourn the Closing Date as provided above or Purchaser adjourns the Closing Date but is still unable to satisfy Seller Conditions, then Seller shall have the right to either (i) terminate this Agreement by written notice to Purchaser on or before the Closing Date, in which event the Deposit shall be promptly returned to Purchaser and neither party shall have any arbitrator wherein an unfavorable injunctionfurther rights against the other except for obligations which expressly survive the termination of this Agreement, judgmentor (ii) on a one-time basis, orderadjourn the Closing Date for a period not exceeding thirty (30) days to allow Purchaser additional time to satisfy such Seller Conditions, decree, ruling or charge would (Aiii) prevent consummation if the failure of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement Seller Conditions to be rescinded following consummation.
(4) The relevant parties shall have entered intosatisfied is the result of an intentional act by Purchaser, executed and delivered Seller may exercise its remedies under Section 16.1 below. In any instance in which either Purchaser or Seller has the Noncompetition Agreement, Sublease, Release and right to extend the other agreements referred to in Section 2 above, and the same shall be in full force and effect. Seller or Andrxxx xxx waive any condition specified Closing Date as set forth above in this Section 6(bparagraph, the Closing Date shall occur within five (5) if it executes a writing so stating at or prior to business days following the Closingdate upon which the condition in question is satisfied, notwithstanding that the maximum number of days for such extension may be greater than the date which is five (5) business days following the satisfaction of such condition.
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