Conditions to Purchaser’s Obligation to Close. The obligation of Purchaser to consummate the transactions provided for hereby is subject to the satisfaction, on or prior to the Closing Date, of the following conditions (any of which may, in Purchaser's sole discretion, be waived in whole or in part): (1) the terms of the debt owed by Seller to National Bank, as of the Closing Date (the "National Bank Debt"), shall have been amended to allow for assumption of the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all representations and warranties of Seller and Shareholder contained in this Agreement shall be true and correct in all respects at and as of the Closing Date, and Seller and Shareholder shall have performed all agreements and covenants required hereby be performed by them prior to and at the Closing Date; (4) all consents, approvals and waivers necessary to permit Seller to transfer the Acquired Assets to Purchaser shall have been obtained; (5) no proceeding by any person shall have been instituted or threatened which questions the validity or legality of the transactions contemplated hereby; (6) Seller and Shareholder shall have furnished Purchaser with such certificates of its officers as may be reasonably requested by Purchaser to evidence compliance with the conditions set forth in this Section 4.05; (7) Purchaser shall have received from Seller resolutions adopted by the board of directors and shareholders of Seller approving this Agreement and the transactions contemplated hereby; (8) the closing of the transactions contemplated by the Note Purchase Agreement shall have occurred; and (9) Seller and Shareholder shall have made the deliveries required pursuant to Section 4.03 of this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Ideal Accents Inc), Asset Purchase Agreement (Ideal Accents Inc)
Conditions to Purchaser’s Obligation to Close. The obligation of (a) Purchaser shall not be obligated to consummate the transactions provided for hereby is subject to the satisfaction, on or prior to proceed with the Closing Date, unless and until each of the following conditions (any of which may, in Purchaser's sole discretion, be has been either fulfilled or waived in whole or in part): writing by Purchaser:
(1) the terms of the debt owed by Seller to National Bank, as of the Closing Date (the "National Bank Debt"), This Agreement shall not have been amended previously terminated pursuant to allow for assumption of the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; any other provision hereof;
(2) Purchaser's due diligence examination of the Business Seller shall have delivered to Title Insurer all instruments and the Acquired Assets shall documents to be acceptable delivered to Purchaser in its sole discretion; at the Closing pursuant to Section 14 and Section 16 or any other provision of this Agreement;
(3) all The representations and warranties of Seller and Shareholder the Property contained in this Agreement Section 6(a) shall be true and correct as of Closing in all respects at and as of the Closing Date, and material respects;
(4) Seller and Shareholder shall have performed in all material respects all of its agreements and covenants obligations required hereby by this Agreement to be performed by them at or prior to and at the Closing Date; Closing;
(45) all consents, approvals and waivers necessary to permit Seller to transfer the Acquired Assets The Title Insurer shall issue to Purchaser the Title Policy (as hereinafter defined), pursuant to Section 13(b) hereof; REAL ESTATE SALE AGREEMENT XXX XXXXXXXXXX XX XXXXXXXX XXXXXXXX (AURORA, ILLINOIS)
(6) All property management services provided to the Premises under any property management agreement shall have been obtained; terminated on or prior to the Closing, as conclusively evidenced by delivery of an executed termination to Purchaser at or prior to the Closing;
(7) Seller shall have filed a Notice of Sale, Purchase, or Transfer of Business Assets (Form CBS-1) with the Illinois Department of Revenue with respect to the transaction contemplated by this Agreement and received written evidence that no tax, penalty or interest is assessed against Seller but remains unpaid that is satisfactory to Purchaser acting reasonably and in good faith (provided that, if no such written evidence has been obtained by Seller at or prior to Closing, Purchaser may extend the Closing Date for five (5) no proceeding business days to allow Seller to obtain such written evidence). If any tax, penalty or interest is owing by any person Seller, Purchaser may direct such amounts to be paid to the applicable governmental authority from the Purchase Price; and
(8) The FVFSC Certificate shall have been instituted issued to Purchaser (provided that, if the FVFSC Certificate has not been issued at or threatened which questions the validity or legality prior to Closing, Purchaser may require Seller to assign its agreement with FVFSC to Purchaser at Closing and provide Purchaser with a credit at Closing equal to FVFSC’s estimate of the transactions contemplated hereby; (6) Seller and Shareholder shall have furnished Purchaser with such certificates of its officers as may be reasonably requested by Purchaser cost to evidence compliance with the conditions set forth in this Section 4.05; (7) Purchaser shall have received from Seller resolutions adopted by the board of directors and shareholders of Seller approving this Agreement and the transactions contemplated hereby; (8) the closing of the transactions contemplated by the Note Purchase Agreement shall have occurred; and (9) Seller and Shareholder shall have made the deliveries required pursuant to Section 4.03 of this Agreementcomplete all remaining work).
Appears in 1 contract
Samples: Real Estate Sale Agreement
Conditions to Purchaser’s Obligation to Close. The In addition to any other conditions and/or contingencies set forth in this Agreement, Purchaser’s obligation to close the purchase of Purchaser to consummate the transactions provided for hereby Purchased Assets is subject to the satisfaction, on or prior to the Closing Date, each and all of the following conditions precedent (any or express written waiver thereof by Purchaser):
(i) All of which may, in Purchaser's sole discretion, be waived in whole or in part): (1) the terms of the debt owed by Seller to National Bank, as of the Closing Date (the "National Bank Debt"), shall have been amended to allow for assumption of the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all Seller’s representations and warranties of Seller and Shareholder contained in this Agreement shall be true and correct in all respects at and as of the Closing Datein all material respects, other than the representations and Seller and Shareholder shall have performed all agreements and covenants required hereby be performed by them prior to and at the Closing Date; (4) all consents, approvals and waivers necessary to permit Seller to transfer the Acquired Assets to Purchaser shall have been obtained; (5) no proceeding by any person shall have been instituted or threatened which questions the validity or legality of the transactions contemplated hereby; (6) Seller and Shareholder shall have furnished Purchaser with such certificates of its officers as may be reasonably requested by Purchaser to evidence compliance with the conditions warranties set forth in Section 10(a)(i), Section 10(a)(ii), Section 10(a)(iv), Section 10(a)(viii)(1), and Section 10(a)(xi), which shall be true and correct in all non-de minimis respects;
(ii) All obligations of Seller in this Section 4.05; (7) Agreement that were to have been performed on or before the Closing Date have been timely and duly performed in all material respects, and Purchaser shall have received a certificate in the form attached hereto as Exhibit J from an officer of Seller resolutions adopted (the “Seller Certificate”) to the effect of Section 6(b)(i) and Section 6(b)(ii) and certifying that no Material Casualty has occurred prior to the Closing Date that is not reasonably capable of remedy by the board of directors date that is three (3) months after the Outside Date;
(iii) The Seller Bankruptcy Court shall have entered the Settlement and shareholders of Seller approving this Agreement Sale Order and the transactions contemplated herebySettlement and Sale Order shall not be subject to any stay and shall not have been vacated or modified;
(iv) The Purchaser Bankruptcy Court shall have entered the Settlement and Purchase Order and the Settlement and Purchase Order shall not be subject to any stay and shall not have been vacated or modified;
(v) The Title Company shall be prepared to issue the Title Policy at the Closing; and
(8) the closing vi) No condemnation, eminent domain or similar proceeding (collectively, a “Taking”) shall have been commenced against (A) any material portion of the transactions contemplated by the Note Purchase Agreement shall have occurred; and Property (9) Seller and Shareholder shall have made the deliveries required pursuant to Section 4.03 it being agreed that, for purposes of this AgreementSection 6(b)(vi) only, any Taking of the substation, any building or foundation, or lines distributing power to any building or foundation, or any of the Land on which any of the foregoing is situated shall be deemed to be “material”, without limiting what else may constitute “material”, for these purposes) or (B) any portion of the Property which, after giving effect to such Taking, shall be reasonably likely to materially and adversely affect the value of the Property from and after the Effective Date (it being understood that the fact that a Taking may have arisen, been discovered, or come into existence prior to the Effective Date, or may otherwise relate to a period prior to the Effective Date, shall not preclude such Taking from affecting the value of the Property from and after the Effective Date) or the ability to develop or use the Property, in each case, as a cryptocurrency mining facility.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Core Scientific, Inc./Tx)
Conditions to Purchaser’s Obligation to Close. The Purchaser's obligation of Purchaser to purchase the Property and consummate the transactions provided for hereby contemplated under this Agreement is subject to expressly conditioned on the satisfaction, on or prior to following being satisfied as of the Closing Date, unless such conditions are waived in writing by Purchaser, and, absent satisfaction of same on the Closing Date, Purchaser may terminate this Agreement and thereafter no party shall have any further obligations to the other hereunder, except as otherwise provided herein, and Winmar Co., as agent for Sellers, shall promptly direct Escrow Agent to return the Deposit to Purchaser.
(a) The Title Insurer shall be irrevocably committed to issue the Title Policies.
(b) No suit, action or other proceeding shall be pending or threatened which seeks, nor shall there exist any judgment the effect of which is, to restrain or impose damages in connection with the purchase and sale of a Shopping Center or the Joint Venture Interest or the transfer of any other material portion of the following conditions Property.
(any of which may, in Purchaser's sole discretion, be waived in whole or in part): (1c) the terms of the debt owed by Seller to National Bank, as of the Closing Date (the "National Bank Debt"), shall have been amended to allow for assumption of the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all Sellers' representations and warranties of Seller and Shareholder contained in this Agreement set forth herein shall be true and correct in all respects at and as of the Closing Date, and Seller and Shareholder .
(d) Sellers shall have performed all of their covenants and agreements hereunder in all material respects.
(e) Purchaser and covenants required hereby Purchaser's permitted assignees and designees, if any, shall have received all items to be performed by them prior to and at the Closing Date; (4) all consents, approvals and waivers necessary to permit Seller to transfer the Acquired Assets delivered to Purchaser shall have been obtained; and Purchaser's permitted assignees and designees under Section 12(b) above.
(5) no proceeding by any person shall have been instituted or threatened which questions the validity or legality of the transactions contemplated hereby; (6) Seller and Shareholder shall have furnished Purchaser with such certificates of its officers as may be reasonably requested by Purchaser to evidence compliance with the conditions set forth in this Section 4.05; (7f) Purchaser shall have received from Seller resolutions adopted by all Purchaser's Required Consents and Sellers shall have received all Seller's Required Consents with respect to the board assignment and assumption of directors and shareholders of Seller approving this Agreement the Ground Leases and the transactions contemplated herebyAT&T Wireless Leases.
(i) Each Anchor shall be in occupancy of its store in a Shopping Centers, shall be open for business and shall not have given any Seller written notice of its intention to terminate its Lease (or Oxmoor Lease) or its obligations under an REA (or an Oxmoor REA), as the case may be, which notice has not been rescinded or withdrawn; (8) ii) the closing square footage of each of Xxxxxxx Town Center, Oxmoor Center Mall, and the Shopping Centers identified on Exhibit A as "Washington Square," "Kitsap Mall" and "Cascade Mall" occupied by tenants (other than Anchors) who are open for business and who have not given a Seller written notice of the transactions contemplated exercise of a right under a Lease to terminate such Lease (which notice has not been rescinded or withdrawn) shall not have declined by more than five percent (5%) from the Note Purchase Agreement shall square footage occupied by such tenants on the Effective Date (excluding tenants whose Leases (or Oxmoor Leases) have occurredexpired in accordance with their terms); and (9iii) the square footage of each of the Shopping Centers other than those identified in clause (ii) occupied by tenants (other than Anchors) who are open for business and who have not given a Seller and Shareholder written notice of the exercise of a right under a Lease to terminate such Lease (which notice has not been rescinded or withdrawn) shall not have made declined by more than ten percent (10%) from the deliveries required pursuant to Section 4.03 of this Agreementsquare footage occupied by PURCHASE AND SALE AGREEMENT PAGE 45 such tenants on the Effective Date (excluding tenants whose Leases (or Oxmoor Leases) have expired in accordance with their terms).
Appears in 1 contract
Conditions to Purchaser’s Obligation to Close. The obligation of (a) Purchaser shall not be obligated to consummate the transactions provided for hereby is subject to the satisfaction, on or prior to proceed with the Closing Date, unless and until each of the following conditions (any of which may, in Purchaser's sole discretion, be has been either fulfilled or waived in whole or in part): writing by Purchaser:
(1) the terms of the debt owed by Seller to National Bank, as of the Closing Date (the "National Bank Debt"), This Agreement shall not have been amended previously terminated pursuant to allow for assumption of the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; any other provision hereof.
(2) Purchaser's due diligence examination of the Business and the Acquired Assets Seller shall be acceptable prepared to deliver or cause to be delivered to Purchaser in its sole discretion; (3) all representations instruments and warranties of Seller and Shareholder contained in this Agreement shall documents to be true and correct in all respects at and as of the Closing Date, and Seller and Shareholder shall have performed all agreements and covenants required hereby be performed by them prior delivered to and Purchaser at the Closing Date; (4) all consents, approvals and waivers necessary to permit Seller to transfer the Acquired Assets to Purchaser shall have been obtained; (5) no proceeding by any person shall have been instituted or threatened which questions the validity or legality of the transactions contemplated hereby; (6) Seller and Shareholder shall have furnished Purchaser with such certificates of its officers as may be reasonably requested by Purchaser to evidence compliance with the conditions set forth in this Section 4.05; (7) Purchaser shall have received from Seller resolutions adopted by the board of directors and shareholders of Seller approving this Agreement and the transactions contemplated hereby; (8) the closing of the transactions contemplated by the Note Purchase Agreement shall have occurred; and (9) Seller and Shareholder shall have made the deliveries required pursuant to Section 4.03 14 or any other provision of this Agreement.
(3) Seller shall have delivered to Purchaser a Tenant Estoppel dated not earlier than the date of this Agreement from IFG. The Tenant Estoppel shall not (A) assert the existence of a material default by the landlord under the IFG Lease, (B) assert the existence of a material agreement between the landlord and IFG not reflected in the IFG Lease, or (C) disclose any other matter which materially and adversely affects the Property, unless in each case, prior to Closing, Seller shall have submitted to Purchaser written evidence reasonably acceptable to Purchaser indicating that any such unpermitted matter has been resolved. The completed form of Tenant Estoppel shall be prepared by Seller and submitted to Purchaser and Purchaser's counsel for their review and approval prior to distribution to IFG. If Purchaser fails to deliver any comments to such form within two (2) business days following receipt, such form will be deemed approved by Purchaser and its counsel. Purchaser agrees that it will accept any Tenant Estoppel which contains language which qualifies the statements set forth therein as being within the "knowledge", "best knowledge", "actual knowledge" or any words of similar import or effect of the party that executes and delivers such Tenant Estoppel.
(4) Lender has consented to the defeasance of the Loan and Seller and Lender have negotiated and agreed to, each in their sole absolute discretion, the terms of appropriate instruments evidencing same (such instruments, including without limitation a pledge agreement, a defeasance security agreement, an instruction letter, a comfort letter, and such other certificates, opinions, documents or instruments as are required in connection therewith, are referred to herein collectively as the "LOAN DEFEASANCE DOCUMENTS").
Appears in 1 contract
Samples: Purchase and Sale Agreement (Capital Lease Funding Inc)
Conditions to Purchaser’s Obligation to Close. The Satisfaction of --------------------------------------------- the following obligations will be a condition precedent to Purchaser's obligation to close unless waived by Purchaser:
(a) Each of Purchaser the representations and warranties of Sellers set forth in this Agreement, without regard (solely for the purposes of this Section 7.1(a)) to consummate the transactions provided for hereby is subject references to the satisfactionMaterial Adverse Effect in such representations and warranties, on or prior to shall be true and correct as of the Closing Date, of the following conditions (any of which may, in Purchaser's sole discretion, be waived in whole or in part): (1) the terms of the debt owed by Seller to National Bank, Date as if such representations and warranties were made on and as of the Closing Date (or, in the "National Bank Debt"case of any representation and warranty made as of a specified date, as of such date), shall have been amended except where the failure to allow for assumption of the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all representations and warranties of Seller and Shareholder contained in this Agreement shall be true and correct would not, individually or in the aggregate, have a Material Adverse Effect; all respects at and as covenants of the Closing Date, and Seller and Shareholder shall have performed all agreements and covenants required hereby Sellers with respect to matters to be performed by them them, or any of them, prior to Closing shall have been complied with in all material respects; and Purchaser shall have received a certificate at Closing from an officer of DMPC attesting to the Closing Date; foregoing;
(4b) all consents, approvals and waivers necessary to permit Seller to transfer the Acquired Assets The provision to Purchaser of partnership resolutions of DMPC and DuPont Pharma and a limited liability company resolution of Endo approving this Agreement and the subject transactions, certified by appropriate officers of Sellers;
(c) No order, stay, judgment or decree shall have been issued and no action, suit or proceeding shall be pending before any court or any federal, state or local governmental authority, and no investigation of any governmental authority shall have been commenced (and be pending) seeking to restrain, enjoin, invalidate or delay (or questioning the validity or legality of) the transactions contemplated by this Agreement or seeking material damages in connection therewith;
(d) If applicable, all waiting periods under the HSR Act shall have expired or been terminated;
(e) All Required DEA/NYBCS Permits shall have been obtained; ;
(5f) no proceeding by any person All items to be delivered pursuant to Section 7.5 shall have been instituted or threatened so delivered;
(g) The Business shall not have suffered a Material Adverse Effect, including, solely for purposes of this Section 7.1(g), any change in results of operations that is materially adverse to the Business taken as a whole (excluding the effects of trends in the Business of which questions the validity or legality Purchaser has been made aware);
(h) Each of the transactions contemplated hereby; (6) Seller and Shareholder Ancillary Agreements shall have furnished Purchaser with been executed and delivered by each party thereto, including, as applicable, DuPont Pharma, and such certificates of its officers as may Agreements shall be reasonably requested by Purchaser to evidence compliance with the conditions set forth in this Section 4.05; full force and effect;
(7i) Purchaser shall have received an opinion or opinions from Seller resolutions adopted by counsel to Sellers (which may be or include staff counsel) to the board of directors and shareholders of Seller approving this Agreement and the transactions contemplated hereby; (8) the closing effect of the transactions contemplated by the Note Purchase Agreement matters set forth in Schedule 7.1(i); and
(j) On or prior to Closing, Purchaser shall have occurred; and (9) Seller and Shareholder shall have made received the deliveries required pursuant to Section 4.03 proceeds of this Agreementthe Bank Financing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Endo Pharmaceuticals Holdings Inc)
Conditions to Purchaser’s Obligation to Close. The In addition to the conditions set forth elsewhere in this Contract, the following condition(s) shall be conditions precedent to the obligation of Purchaser to consummate purchase the transactions Interests on the Closing Date as provided for hereby is herein:
6.2.1 The Title Company shall be prepared to issue, upon payment of applicable premiums and fees, its ALTA Owner's Policy of Title Insurance in the amount of the Purchase Price showing fee simple title vested in the applicable Company subject only to the satisfactionPermitted Encumbrances. If there is a title exception other than a Permitted Encumbrance which precludes the Title Company from issuing such policy, on then Sellers shall have the right to substitute as the Title Company either Chicago Title Insurance Company or prior another major title insurance company which is prepared to issue such policy, provided that Purchaser has approved in its reasonable judgment any affirmative insurance or endorsements with respect to the title exception in question.
6.2.2 The Closing Date, Balance Sheet of the following conditions each Company shall show no assets other than (any of which may, in Purchaser's sole discretion, be waived in whole or in part): (1x) the terms Center owned by such Company (including receivables attributable to unpaid rents, if any), (y) utility and similar deposits and (z) any reserves then outstanding under the Loan Documents, and no liabilities other than (i) obligations shown on the Balance Sheet attached hereto as Exhibit P, (ii) the Loan, (iii) payables that have been prorated in accordance with the provisions of this Contract and (iv) liabilities covered by insurance. For avoidance of doubt, the debt owed by Seller to National Bank, parties agree that the annotated balance sheets attached hereto as Exhibit P reflect the intended status of each line item as of the Closing Date (Closing.
6.2.3 Lender shall have approved in writing the "National Bank Debt"), sale of the Interests to Purchaser in accordance with Section 9.3 hereof.
6.2.4 The representations and warranties made by Sellers in Section 5.1 shall have been amended to allow for assumption true and correct in all material respects as of the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business Effective Date, and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all representations and warranties of Seller and Shareholder contained made by Sellers in this Agreement Section 5.2 shall be true and correct in all material respects at and as of the Closing Date, Effective Date and Seller and Shareholder shall have performed all agreements and covenants required hereby be performed by them prior to and at the Closing Date; (4) all consents, approvals and waivers necessary to permit Seller to transfer the Acquired Assets to Purchaser shall have been obtained; (5) no proceeding by any person shall have been instituted or threatened which questions the validity or legality of the transactions contemplated hereby; (6) Seller and Shareholder shall have furnished Purchaser with such certificates of its officers as may be reasonably requested by Purchaser to evidence compliance with the conditions set forth in this Section 4.05; (7) Purchaser shall have received from Seller resolutions adopted by the board of directors and shareholders of Seller approving this Agreement and the transactions contemplated hereby; (8) the closing of the transactions contemplated by the Note Purchase Agreement shall have occurred; and (9) Seller and Shareholder shall have made the deliveries required pursuant to Section 4.03 of this Agreement.
Appears in 1 contract
Samples: Contract of Sale and Purchase (Ramco Gershenson Properties Trust)
Conditions to Purchaser’s Obligation to Close. The In addition to the conditions set forth elsewhere in this Contract, the following conditions shall be conditions precedent to the obligation of Purchaser to consummate purchase the transactions provided for hereby is subject to the satisfaction, Property on or prior to the Closing Date, Date as provided herein (and any of the following conditions (any of which may, in Purchaser's sole discretion, can be waived only in whole or in part): (1) the terms writing by Purchaser):
6.1.1 Each of the debt owed by Seller to National Bank, as of the Closing Date (the "National Bank Debt"), shall have been amended to allow for assumption of the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all Sellers’ representations and warranties of Seller and Shareholder contained in this Agreement shall be true and correct in all material respects at as if made on and as of the Closing Date, and Seller and Shareholder .
6.1.2 Sellers shall have performed and complied in all agreements material respects with all covenants and covenants conditions required hereby by this Contract to be performed or complied with by them Sellers at or prior to Closing.
6.1.3 If, and only if Purchaser has provided the Purchaser’s Pro Forma to Sellers prior to the end of the Inspection Period, at Closing, the Closing Date; Title Company shall issue to the Purchaser or be irrevocably committed to issue to the Purchaser an extended coverage ALTA owner’s policy of title insurance or an endorsement to the Company’s existing owner’s policy (4) all consentsthe “Title Policy”), approvals in the form of the Purchaser’s Pro Forma subject only to the Permitted Exceptions and waivers necessary other standard terms and conditions, provided, however that the Purchaser acknowledges that despite the inclusion of endorsements in the Purchaser’s Pro Forma, neither the receipt of any endorsements nor the failure of the Title Company to permit Seller remove any other standard terms and conditions shall be conditions to transfer the Acquired Assets Purchaser’s obligations under this Agreement, nor shall the failure to Purchaser obtain same result in any reduction or set off against the Purchase Price or delay the Closing. Notwithstanding anything to the contrary, nothing set forth in the previous sentence shall excuse Sellers’ performance of its obligations pursuant to Section 4.4 or Section 7.2.1 hereof.
6.1.4 The existing Management Agreement and the Property Contracts other than the Assumed Contracts shall have been obtained; (5) terminated at no proceeding by any person shall have been instituted cost or threatened which questions the validity or legality of the transactions contemplated hereby; (6) Seller and Shareholder shall have furnished Purchaser with such certificates of its officers as may be reasonably requested by Purchaser expense to evidence compliance with the conditions set forth in this Section 4.05; (7) Purchaser.
6.1.5 Purchaser shall have received from Seller resolutions adopted by Franchisor Consent and, if applicable, Franchisor shall be ready, willing and able to enter into the board New Franchise Agreement with Purchaser at Closing. Purchaser shall be entitled to attempt to negotiate the terms of directors and shareholders the New Franchise Agreement (including, without limitation, the PIP) for the Hotel, however, it shall not be a condition of Seller approving this Agreement and the transactions contemplated hereby; (8) the closing of Purchaser’s obligation to close on the transactions contemplated by the Note Purchase Agreement this Contract that any of Purchaser’s requested terms be accepted by Franchisor.
6.1.6 Sellers shall have occurred; delivered all of the other documents and (9) Seller and Shareholder shall have made all of the other deliveries required from it pursuant to Section 4.03 of this Agreement7.2 hereof.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Procaccianti Hotel Reit, Inc.)
Conditions to Purchaser’s Obligation to Close. The Purchaser’s obligation of Purchaser to consummate purchase the transactions provided for hereby is Shares from the Company at the Closing shall be subject to the satisfactionfollowing conditions, any one or more of which may be waived by the Purchaser at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) receipt by the Purchaser of the Certificate;
(b) the representations and warranties of the Company set forth in Section 4 hereof shall be true and correct in all material respects as of the date hereof and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date (which shall be true and correct in all material respects as of such date)), and the Company shall have performed, satisfied and complied with in all material respects the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company on or prior to the Closing Date, of the following conditions ;
(any of which may, in Purchaser's sole discretion, be waived in whole or in part): (1c) the terms of the debt owed by Seller to National Bank, as of the Closing Date (the "National Bank Debt"), Company shall have been amended to allow for assumption of the debt by Purchaser and payment thereof on delivered a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all representations and warranties of Seller and Shareholder contained in this Agreement shall be true and correct in all respects at and as of certificate, dated the Closing Date, and Seller and Shareholder duly executed on behalf of the Company by its Chief Executive Officer to the effect set forth in clause (b) above;
(d) the Company shall have performed all agreements and covenants required hereby be performed by them prior to and at delivered a certificate, dated the Closing Date; (4) all consents, approvals and waivers necessary to permit Seller to transfer duly executed by its Secretary or Assistant Secretary or other appropriate officer, certifying that the Acquired Assets to Purchaser shall have been obtained; (5) no proceeding by any person shall have been instituted or threatened which questions the validity or legality attached copies of the transactions contemplated hereby; (6) Seller Company’s Articles of Incorporation, By-laws and Shareholder shall have furnished Purchaser with such certificates the resolutions of its officers as may be reasonably requested by Purchaser to evidence compliance with the conditions set forth in this Section 4.05; (7) Purchaser shall have received from Seller resolutions adopted by Board of Directors or Executive Committee of the board Board of directors and shareholders of Seller Directors approving this Agreement and the transactions contemplated hereby, are all true, complete and correct and remain unamended in full force and effect;
(e) receipt by the Purchasers of an opinion letter of Jones, Walker, Waechter, Poitevent, Carrère & Xxxxxxx, L.L.P., special counsel to the Company, dated the Closing Date, with respect to such matters and in such form as shall be agreed upon between such counsel and counsel for the Placement Agents;
(f) on the Closing Date, the “lock-up” agreements between the Placement Agents and officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, executed and delivered to the Placement Agents on or before the date hereof, shall be in full force and effect; and
(8) g) on the closing of Closing Date, no legal action, suit or proceeding shall be pending or overtly threatened which seeks to restrain or prohibit the transactions contemplated by the Note Purchase Agreement shall have occurred; and (9) Seller and Shareholder shall have made the deliveries required pursuant to Section 4.03 of this Agreement.
Appears in 1 contract
Conditions to Purchaser’s Obligation to Close. The obligation of Purchaser to consummate the transactions provided for hereby Close under this Agreement is subject to the satisfaction, on or prior to the Closing Date, each of the following conditions (any one of which may, in at the option of Purchaser's sole discretion, be waived in whole writing by Purchaser) existing on the Closing Date, or in part): (1) such earlier date as the terms context may require.
5.01. Each of the debt owed by Seller to National Bank, as of the Closing Date (the "National Bank Debt"), shall have been amended to allow for assumption of the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all representations and warranties of Seller and Shareholder in this Agreement, the disclosures contained in the exhibits to this Agreement, and all other information delivered under this Agreement shall be true and correct in all material respects at and as of the Closing DateDate as though each representation, warranty, and Seller disclosure were made and Shareholder shall have performed all agreements delivered at and covenants required hereby be performed by them prior to and at as of the Closing Date; (4) all consents, approvals and waivers necessary to permit .
5.02. Seller to transfer the Acquired Assets shall deliver to Purchaser shall have been obtained; (5) no proceeding by any person shall have been instituted or threatened which questions the validity or legality an opinion of counsel addressed to Purchaser and dated as of the transactions contemplated hereby; (6) Seller and Shareholder shall have furnished Purchaser with such certificates of its officers as may be reasonably requested by Purchaser to evidence compliance with Closing Date in substantially the conditions form set forth in Exhibit 23, which is attached hereto and by this Section 4.05; (7) Purchaser reference incorporated for all purposes herein.
5.03. The Company and Seller shall have received from Seller resolutions adopted by the board of directors each comply with and shareholders of Seller approving perform all agreements, covenants and conditions in this Agreement required to be performed and the transactions contemplated hereby; complied with by each of them. All requisite action (8) the closing corporate and otherwise) in order to consummate this Agreement shall be properly taken by Company and Seller.
5.04. No suit or proceeding, legal or administrative, relating to any of the transactions contemplated by the Note Purchase this Agreement shall be overtly threatened or commenced that, in the sole discretion of Purchaser and its counsel, would make it inadvisable for Purchaser to Close this transaction.
5.05. All necessary government approvals and filings regarding this transaction shall be received or made prior to the Closing Date in substantially the form applied for to the reasonable satisfaction of Purchaser and its counsel. Any applicable waiting period for the approvals and filings shall have occurred; expired.
5.06. All corporate and (9) stockholder action necessary to consummate the transactions contemplated in this Agreement shall be properly taken by Seller and Shareholder the Company. Purchaser shall have made receive copies of all appropriate resolutions of the deliveries required pursuant Company’s and Seller’s boards of directors and shareholders relating to Section 4.03 of this Agreement. The resolutions shall be certified by the Company’s and Seller’s respective corporate secretaries.
Appears in 1 contract
Conditions to Purchaser’s Obligation to Close. The Each Purchaser's obligation of to purchase and pay for the Notes to be sold to that Purchaser to consummate at the transactions provided for hereby Closing is subject to the fulfillment to the Purchaser's satisfaction, on or prior to or at the Closing Date, of the following conditions conditions:
(any of which may, in Purchaser's sole discretion, be waived in whole or in part): (1a) the terms of the debt owed by Seller to National Bank, as of the Closing Date (the "National Bank Debt"), shall have been amended to allow for assumption of the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all The representations and warranties of Seller and Shareholder contained the Company in this Agreement shall be true and correct in all material respects at and as of the Closing Date, and Seller and Shareholder shall have performed all agreements and covenants required hereby be performed by them prior to when made and at the Closing Date; time of the Closing, as applicable.
(4b) all consentsThe Company shall have delivered the Note, approvals the Pledge Agreement and waivers necessary the Subordinated Guaranty duly executed by the Company and Coastal, as applicable.
(c) The Registration Statement for the shares of the Company's common stock to permit Seller be issued pursuant to transfer the Acquired Assets to Purchaser Plan of Exchange shall have been obtained; (5) no proceeding by any person declared effective and the exchange of shares pursuant to the Plan of Exchange shall have been instituted consummated.
(d) The Registration Statement for the shares of the Company's common stock to be issued in the Subscription Offering shall have been declared effective, the Subscription Offering shall have closed.
(e) All conditions precedent to the obligations of UAC restructured noteholders to deliver and sell their UAC restructured and accrual notes to the Company in connection with the Noteholder Buyout pursuant to the noteholder tender agreements in effect on the date hereof shall have been met.
(f) There shall not be pending by or threatened which questions before any court or governmental authority any suit, action or proceeding challenging or seeking to restrain or prohibit, or to obtain material damages in respect of the validity Transactions contemplated herein and the Registration Statement or legality that has had or may have, in the reasonable judgment of the Purchaser, a Material Adverse Effect on the Company or Coastal.
(g) All conditions precedent to the Closing of the transactions contemplated hereby; (6) Seller and Shareholder in the Coastal Purchase Agreement shall have furnished Purchaser with such certificates of its officers as may been satisfied or shall be reasonably requested by Purchaser prepared to evidence compliance be satisfied simultaneously with the conditions set forth in this Section 4.05; Closing.
(7h) Purchaser The Company shall have received from Seller resolutions adopted by the board of directors and shareholders of Seller approving this Agreement and paid Purchasers a $150,000 cash facility fee related to the transactions contemplated hereby; .
(8) i) Barnes & Thornburg LLP, legal counsel to the closing of the transactions contemplated by the Note Purchase Agreement Company, shall have occurred; and delxxxxxx xx opinion to the Purchasers in the form of Exhibit 4.
(9j) Seller and Shareholder Holders of Coastal's outstanding subordinated notes shall have made agreed to subordinate Coastal's obligations under such subordinated notes to Coastal's guaranty obligations to Purchaser under the deliveries required pursuant to Section 4.03 Subordinated Guaranty in the form of this AgreementExhibit 5.
Appears in 1 contract
Conditions to Purchaser’s Obligation to Close. The Purchaser’s obligation of Purchaser to consummate the transactions provided for hereby to be performed by it in connection with Closing is subject to the satisfaction, on or prior to the Closing Date, satisfaction of the following conditions (any of which may, in Purchaser's sole discretion, be waived in whole at or in part): prior to Closing:
(1) There has been no Material Adverse Change on the terms of the debt owed by Seller to National Bank, as of the Closing Date (the "National Bank Debt"), shall have been amended to allow for assumption of the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; Business;
(2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all The representations and warranties of Seller and Shareholder contained set forth in this Agreement Article 4 shall be true and correct in all respects at and as of the Closing Date, ;
(3) All actions to be taken by Seller in connection with consummation of the Contemplated Transactions and Seller documents required to effect the Contemplated Transactions shall be reasonably satisfactory in form and Shareholder shall have performed all agreements and covenants required hereby be performed by them prior substance to and at the Closing Date; Purchaser;
(4) all consents, approvals Seller shall execute and waivers necessary to permit Seller to transfer the Acquired Assets to deliver those closing deliverables referenced in Section 3.2(a);
(5) Purchaser shall have been obtained; (5) no proceeding , or be in the process of obtaining, all licenses and permits necessary to own, operate and otherwise conduct the Business, including but not limited to any and all consents or approvals necessitated by any person shall have been instituted or threatened which questions the validity or legality of the transactions contemplated hereby; Contemplated Transaction;
(6) Seller and Shareholder the Due Diligence Period (defined below) shall have furnished expired without Purchaser with such certificates delivering written notice of its officers as may be reasonably requested by Purchaser termination to evidence compliance with the conditions set forth in this Seller pursuant to Section 4.05; 3.4(c)(ii);
(7) Purchaser shall have received from Seller resolutions adopted by have, with respect to the board Business Location, either assumed the Lease or entered into a new Sub-lease with lessee of directors such Business Location which is written on terms and shareholders of Seller approving this Agreement and the transactions contemplated hereby; conditions satisfactory to Purchaser;
(8) Purchaser shall have obtained the closing of the Ownership Approval (defined below). The transactions contemplated by this Agreement require privilege licensing and approvals by certain regulatory authorities (“Regulatory Authorities”) including, without limitation, the Note Purchase Agreement Nevada Cannabis Compliance Board (“CCB”) and Nxx County, Nevada (collectively “Ownership Approval”). Purchaser and Seller shall have occurred; submit applications for the Ownership Approval within fifteen (15) days of the Effective Date. Seller shall prepare, complete and submit to legal counsel for Purchaser any and all reasonable information and documents requested by the Regulatory Authorities to effectuate the Ownership Approval within three (3) business days of such request. All costs and obligations related to the Ownership Approval shall be borne by Purchaser.
(9) Seller and Shareholder shall have made entered into a management agreement with Purchaser granting Purchaser the deliveries required pursuant right to Section 4.03 of this Agreementoperate the Company.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (MJ Holdings, Inc.)
Conditions to Purchaser’s Obligation to Close. The following shall be conditions to Purchaser’s obligations to close the Second Purchase and the Third Purchase, respectively:
(i) The Second Closing Trigger or the Third Closing Trigger, as applicable, shall have occurred.
(ii) Subject to Section 1.6(a)(iii), all conditions to Purchaser’s obligation of Purchaser to consummate close the transactions provided for hereby is subject to the satisfactionSecond Investment Tranche or Third Investment Tranche, on or prior to the Closing Date, of the following conditions (any of which mayas applicable, in Purchaser's sole discretion, be waived in whole or in part): (1) accordance with the terms of the debt owed by Seller to National BankSeries C Purchase Agreement shall have been satisfied (other than the concurrent closing of the Second Purchase or Third Purchase, as applicable, hereunder), and evidence, in form and substance satisfactory to Purchaser, that, assuming the satisfaction of all conditions to Seller’s obligation to close, the Second Investment Tranche or Third Investment Tranche, as applicable, will close prior to, or concurrently with, the Second Closing Date (the "National Bank Debt")or Third Closing, as applicable, shall have been amended received by the Purchaser.
(iii) Notwithstanding Sections 1.6(a)(ii), if an Established Development Company Acquisition has occurred but Seller has not exercised its termination right pursuant to allow for assumption of Section 1.8(e), the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all representations and warranties of Seller and Shareholder contained in this Agreement shall be true and correct in all respects at and as of the Closing Date, and Seller and Shareholder shall have performed all agreements and covenants required hereby be performed by them prior to and at the Closing Date; (4) all consents, approvals and waivers necessary to permit Seller to transfer the Acquired Assets to Purchaser shall have been obtained; (5) no proceeding by any person shall have been instituted or threatened which questions the validity or legality of the transactions contemplated hereby; (6) Seller and Shareholder shall have furnished Purchaser with such certificates of its officers as may be reasonably requested by Purchaser to evidence compliance with the closing conditions set forth in this Sections 1.6(a)(ii) shall be deemed satisfied in respect of the Second Closing or Third Closing, as applicable, upon Purchaser’s receipt of the applicable amount set forth in Section 4.05; 1.8(h) (7which receipt and deemed satisfaction shall occur concurrently with such closing), notwithstanding that, following such Established Development Company Acquisition, Seller no longer has the right to require the Series C Purchasers to purchase the Second Closing Shares or Third Closing Shares, as applicable, and Purchaser no longer has any right or obligation to make any such purchase following such Established Development Company Acquisition.
(iv) Purchaser Subject to the notice and cure provisions of Section 1.8(c), (A) Seller shall not have received from Seller resolutions adopted by the board committed a material Breach of directors and shareholders of Seller approving this Agreement and (B) all of Seller’s representations in Sections 3.1(a), (b), (c) (the transactions contemplated hereby; first part of the first sentence, ending with the phrase “as presently carried on by Seller”, and the last sentence), (8) d), (e), (f) (substituting “Second Closing” or “Third Closing,” as applicable, for “First Closing”), (g), (h), (n), (p), (r) and (s) would be, if made as of the Second Closing Date or Third Closing Date, as applicable, true, and all of Seller’s representations in Sections 3.1(j)(ii) through (viii), (k) and (l)(ii) through (vii) would be, if made as of the Second Closing Date or Third Closing Date, as applicable, true, except as would not reasonably be expected to have a Material Adverse Effect. If any of the foregoing conditions in this Section 1.6(a)(iv) are not satisfied following the occurrence of the Second Closing Trigger or the Third Closing Trigger, as applicable, then Seller shall have the right, following written notice by Purchaser to Seller thereof, to satisfy such condition as set forth in Section 1.8(c).
(v) No termination of Purchaser’s obligation to consummate the Second Purchase or the Third Purchase, as applicable, shall have occurred pursuant to Section 1.8.
(vi) If a determination has been made pursuant to Section 1.9 that clearance under the HSR Act is required prior to the closing of the transactions contemplated by Second Purchase and/or the Note Second Investment Tranche or the Third Purchase Agreement and/or the Third Investment Tranche, as applicable, such clearance has been obtained (or deemed obtained upon the expiration of the applicable waiting period).
(vii) Seller shall have occurred; obtained all [**], and (9) Seller provided evidence, in form and Shareholder shall substance satisfactory to Purchaser, that [**] have made the deliveries required pursuant to Section 4.03 of this Agreementbeen obtained.
Appears in 1 contract
Conditions to Purchaser’s Obligation to Close. The obligation of Purchaser hereunder to consummate the transactions provided for hereby contemplated by this Agreement is subject to the satisfaction, on satisfaction (or prior to the Closing Date, waiver) of each of the following conditions conditions:
(any of which may, in Purchaser's sole discretion, be waived in whole or in part): (1a) the terms Each of the debt owed by Seller to National Bank, as of the Closing Date (the "National Bank Debt"), shall have been amended to allow for assumption of the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all representations and warranties of Seller and Shareholder contained in this Agreement Section 3 shall be true and correct in all material respects at on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date.
(b) Seller shall in all material respects have performed, satisfied and Seller and Shareholder shall have performed complied with all of its covenants, agreements and covenants conditions contained in this Agreement that are required hereby to be performed performed, satisfied or complied with by them prior to and at it on or before the Closing Date; .
(4c) all consentsSince the date of this Agreement, approvals and waivers necessary to permit Seller to transfer the Acquired Assets to Purchaser no statute, regulation, executive order, decree, ruling or injunction shall have been obtained; (5) no proceeding enacted, entered, promulgated or endorsed by any person court or governmental authority of competent jurisdiction and shall have been instituted or threatened which questions be continuing that prohibits the validity or legality consummation of the transactions contemplated hereby; (6) Seller and Shareholder shall have furnished Purchaser with such certificates of its officers as may be reasonably requested by Purchaser to evidence compliance with the conditions set forth in this Section 4.05; (7) Purchaser shall have received from Seller resolutions adopted by the board of directors and shareholders of Seller approving this Agreement and the transactions contemplated hereby; (8) the closing any of the transactions contemplated by the Note Purchase Agreement shall have occurred; and (9) Seller and Shareholder shall have made the deliveries required pursuant to Section 4.03 of this Agreement.
(d) Purchaser shall have entered into binding purchase agreements to acquire such number of shares of Series D Preferred Stock equal to at least 51% of the issued and outstanding shares of Series D Preferred Stock on the Closing Date.
(e) The Company shall have caused the Certificates of Designations to be amended and restated in substantially the form attached hereto as Exhibit A.
(f) The Company shall have issued and sold to Purchaser such number of Series A-1 Preferred Stock of the Company on such terms and conditions determined by the Company and Purchaser in their sole discretion.
(g) The Company shall have caused its board of directors to be comprised of a single director selected by Purchaser.
Appears in 1 contract
Samples: Stock Purchase Agreement (Pioneer Power Solutions, Inc.)
Conditions to Purchaser’s Obligation to Close. The Purchaser's obligation --------------------------------------------- to close this transaction is expressly conditioned upon the following, which, if not satisfied or waived by Purchaser on or before the Closing Date, shall permit Purchaser, to declare this Contract null and void and of no further force and effect by written notice to Seller; whereupon the Xxxxxxx Money shall be returned immediately to Purchaser, and neither the Seller nor the Purchaser to consummate the transactions provided for hereby is subject shall have any further obligations hereunder to the satisfaction, on or other. Xxxxxxx Mobile Home Park ________________
A. Seller shall have performed and complied with all of the covenants and agreements herein contained which are to be performed prior to the Closing Date, of ; and,
B. Seller shall have delivered the following conditions (any of which may, in Purchaser's sole discretion, be waived in whole or in part): (1) "marked down" Commitment from the terms of the debt owed by Seller to National Bank, as of title underwriter updated through the Closing Date (in the full amount of the Purchase Price subject only to the Permitted Exceptions and deleting the "National Bank Debt"), gap" exception from Schedule B-2; and,
C. The Property shall not have been amended to allow for assumption of the debt materially affected by Purchaser and payment thereof on a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all any moratorium, legislative or regulatory change, or any flood, accident, condemnation or other material adverse event.
D. All representations and warranties of Seller and Shareholder contained as set forth in this Agreement Paragraph 8 next below, shall be substantially true and correct in all respects correct.
E. Purchaser may at and as any time or times before closing waive any of the foregoing conditions but only in writing signed by Purchaser and delivered to Seller. In the event any of the conditions are not waived by Purchaser prior to Closing Date, Purchaser my terminate this Contract and in such event Escrow Agent shall promptly return all Deposit monies and the interest thereon to Purchaser and, upon receipt of such refund, this Contract shall be null and void and neither Purchaser or Seller and Shareholder shall have performed all agreements and covenants required hereby be performed by them prior to and at the Closing Date; (4) all consents, approvals and waivers necessary to permit Seller to transfer the Acquired Assets to Purchaser shall have been obtained; (5) no proceeding by any person shall have been instituted further liabilities or threatened which questions the validity or legality of the transactions contemplated hereby; (6) Seller and Shareholder shall have furnished Purchaser with such certificates of its officers as may be reasonably requested by Purchaser to evidence compliance with the conditions set forth in this Section 4.05; (7) Purchaser shall have received from Seller resolutions adopted by the board of directors and shareholders of Seller approving this Agreement and the transactions contemplated hereby; (8) the closing of the transactions contemplated by the Note Purchase Agreement shall have occurred; and (9) Seller and Shareholder shall have made the deliveries required pursuant to Section 4.03 of this Agreementobligations hereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Meadows Preservation Inc)
Conditions to Purchaser’s Obligation to Close. The obligation of Purchaser to consummate the transactions provided for hereby is subject IN addition to the satisfactionother conditions set forth in this Agreement, on or prior to the Closing Date, of the following shall be conditions (any of which may, in precedent to Purchaser's sole discretion, be waived in whole or in part): obligation to close hereunder:
(1) the terms of the debt owed by Seller to National Bank, as of the Closing Date (the "National Bank Debt"), shall have been amended to allow for assumption of the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3a) all representations and warranties of Seller and Shareholder contained in this Agreement (as modified by any Variance pursuant to Section 12.02 hereof) shall be true and correct in all material respects as of the Closing Date and Seller shall have observed and performed in all material respects all covenants and obligations on its part to be observed or performed at or prior to Closing;
(b) Seller shall have obtained and delivered estoppel letters addressed to Purchaser from (i) each tenant under the Leases other than QWEST, and (ii) all third parties under any reciprocal easement agreement or operating agreement with respect to the Property, if any (any of the foregoing, a "REA"), confirming the material provisions of their respective Leases or REAs and setting forth no facts indicating any default by the landlord (or Seller, with respect to a REA) in the performance of its obligations thereunder (it being agreed that in lieu of any form of estoppel requested by Purchaser, the respective forms of estoppel letters required by the Leases or REAs, if any, and, absent a required form under any given Lease or REA, the form of estoppel letter normally utilized by any such tenant or REA party shall be acceptable to Purchaser);
(c) There will be no threatened or pending litigation relating to the Property at the time of closing other than any mechanics' lien or other litigation relating to matters for which any of the tenants are solely responsible pursuant to their respective Leases and such other matters as Purchaser may agree to accept;
(d) Seller and Purchaser shall have agreed by the end of the Inspection Period upon the form and substance of (i) the document to be attached to this Agreement as EXHIBIT H, as contemplated in Section 15.04(c), and (ii) the Access and Escrow Agreement, as contemplated in Section 10.01(h); and
(e) Title Insurer shall be prepared to issue a 3.1 zoning endorsement to the owner's title insurance policy to be delivered to Purchaser at the closing. If any representation or warranty of Seller is true and accurate in all material respects as of the date hereof, but due to a change in factual circumstances, Seller cannot certify that any representation or warranty of Seller contained in Section 12.01 is true and correct as of the Closing Date, or Seller is unable to obtain a required estoppel letter(s) from any tenant or the tenant estoppel letters are inconsistent with Sellers representations and Seller and Shareholder shall have performed all agreements and covenants required hereby be performed by them prior to and at the Closing Date; (4) all consentswarranties herein, approvals and waivers necessary to permit Seller to transfer the Acquired Assets to Purchaser shall have been obtained; (5) no proceeding by or any person shall have been instituted or threatened which questions the validity or legality of the transactions contemplated hereby; (6) Seller and Shareholder shall have furnished Purchaser with such certificates of its officers as may be reasonably requested by Purchaser to evidence compliance with the other conditions set forth in this Section 4.05; (7) 14.02 are not satisfied on or before the Closing Date, then Purchaser shall have received from Seller resolutions adopted by not be entitled to exercise the board of directors remedy set forth in Section 16.01 and shareholders of Seller approving Purchaser shall, as its sole and exclusive remedy, either waive such condition and proceed to closing or terminate this Agreement Agreement. Upon any such termination, the Deposit together with interest thereon, if any, shall forthwith be returned to Purchaser and the transactions contemplated hereby; (8) the closing all obligations of the transactions contemplated by the Note Purchase parties hereunder other than any Surviving Obligations shall cease and this Agreement shall have occurred; and (9) Seller and Shareholder shall have made no further force or effect except with respect to the deliveries required pursuant to Section 4.03 of this AgreementSurviving Obligations.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Inland Western Retail Real Estate Trust Inc)
Conditions to Purchaser’s Obligation to Close. The obligation of Purchaser to consummate close and make the transactions provided for hereby deliveries set forth in SECTION 10 is subject to the satisfaction, on satisfaction of the following conditions at or prior to the Closing, any or all of which may be waived by Purchaser in writing:
(a) All representations and warranties of Sellers in this Agreement will be true and correct in all material respects on and as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date. At Closing, of Sellers shall certify to Purchaser that all such representations and warranties are true and correct in all material respects on the following conditions (Closing Date or disclose any of which may, in Purchaser's sole discretion, matters that cause such representations and warranties to be waived in whole or in part): (1) the terms of the debt owed by Seller to National Bank, materially incorrect as of the Closing Date (the "National Bank DebtSellers' Certificate");
(b) Sellers will have performed and observed, shall have been amended to allow for assumption of the debt by Purchaser in all material respects, all covenants and payment thereof on a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all representations and warranties of Seller and Shareholder contained agreements set forth in this Agreement shall to be performed or observed by Sellers prior to or on the Closing Date and will be prepared to close in accordance with the terms of this Agreement;
(c) The Records will have been true and correct in all material respects at on the date such Records were made available to Purchaser for review;
(d) There will not have occurred any material and adverse change in the matters reflected on the Records, Title Commitment, Survey or UCC Searches from those matters appearing therein on the Effective Date (except those changes permitted under this Agreement or requested by Purchaser in its Objection Notice). The term "material and adverse" as used in this ARTICLE 4 shall mean any event, condition, change or circumstance that has an adverse impact or restriction on the ownership or operation of the Closing Property in an amount in excess of $50,000 on a cumulative basis or materially restricts the operation of the Property;
(e) There will not have occurred any material and adverse change in the environmental condition of the Property from that which existed on the Effective Date;
(f) The Title Company will have provided Purchaser with written evidence that it is prepared to issue an Owner's Policy of Title Insurance (the "Title Policy") on the standard form in use in the State of Florida with the endorsements requested by Purchaser, insuring good and indefeasible fee simple title to the Real Property (including all required access, cart path, irrigation drainage and utility easements) in the Purchaser in a face amount equal to the Purchase Price (as allocated pursuant to SECTION 2.2(d)) and containing no exceptions except the Permitted Exceptions and the standard printed exceptions therein, as modified by any Objections which Sellers elect to cure pursuant to SECTION 3.2.
(g) Neither Sellers nor Purchaser will have received any written notice from any Governmental Authority of any pending or contemplated material impairment of access to any portion of the Property or any material violation of any Legal Requirement concerning the Property, which, in both cases, did not exist on the Effective Date;
(h) There will not have occurred any material and adverse change in the access to or availability of utilities (including, but not limited to, sewer, water, gas, electricity, and Seller telephone facilities) from that which existed on the Effective Date;
(i) The Water Permit will not have been revoked, terminated or amended and Shareholder shall have performed all agreements and covenants consents required hereby be performed by them prior to and at assign the Closing Date; (4) all consents, approvals and waivers necessary to permit Seller to transfer the Acquired Assets Water Permit to Purchaser shall at Closing, or obtain a new Water Permit for Purchaser by Closing, will have been obtained; and
(5j) no proceeding by any person shall Purchaser will have been instituted obtained, on or threatened which questions before September 15th, 2002, a commitment from an insurance company, financial institution or lender or other arrangement to finance the validity or legality purchase of the transactions contemplated herebyProperty on commercially reasonable terms; provided, however, Purchaser agrees to use commercially reasonable efforts to obtain such commitment or arrangement, including making application therefore as soon as practicable after the Effective Date and notifying Sellers in writing promptly upon Purchaser's receipt of such commitment or other arrangement.
(6k) Seller The satisfaction of the additional items set forth on SCHEDULE 4.2(k) by Closing and Shareholder shall have furnished Purchaser with such certificates of its officers as may be reasonably requested by Purchaser to evidence compliance with obtaining the conditions Required Consents set forth in SCHEDULE 8.9. In the event that any of the above conditions are not satisfied or waived in writing by Purchaser prior to Closing, Purchaser may terminate this Section 4.05; (7) Purchaser Agreement by delivery of a written termination notice to Sellers, in which event, the Deposits shall be returned to Purchaser, and neither party thereafter shall have received from Seller resolutions adopted by the board of directors and shareholders of Seller approving any further rights or obligations to each other under this Agreement and (except for any liability that expressly survives the transactions contemplated hereby; (8) the closing of the transactions contemplated by the Note Purchase Agreement shall have occurred; and (9) Seller and Shareholder shall have made the deliveries required pursuant to Section 4.03 termination of this Agreement).
Appears in 1 contract
Samples: Sale and Purchase Agreement (Arvida JMB Partners L P)
Conditions to Purchaser’s Obligation to Close. The obligation of Purchaser to consummate the transactions provided for hereby to be performed by it in connection with the Closing is subject to satisfaction (or waiver) of the satisfaction, following conditions:
(a) The Sellers shall have obtained Seller’s Required Consents and the Company shall have obtained the Company’s Required Consents.
(b) The Required Telecommunications Notices and Consents shall have been obtained.
(c) The representations and warranties set forth in Article III and Article V shall be true and correct in all material respects at and as of (A) the date of this Agreement and (B) the Closing Date (after giving effect to any amendments or supplements to the Sellers’ Disclosure Schedules provided by Sellers and accepted by Purchaser as provided in Section 6.4) as though such representations and warranties were made on or prior to and as of the Closing Date, of the following conditions (any of which may, in Purchaser's sole discretion, be waived in whole or in part): (1) the terms of the debt owed by Seller to National Bank, as of the Closing Date (the "National Bank Debt"), shall have been amended to allow except for assumption of the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all those representations and warranties that refer to facts existing at a specific date, which shall be true and correct in all material respects as of Seller such date (except to the extent that such representations and Shareholder contained warranties are qualified by the term “material,” or contain terms such as “Material Adverse Change,” “Material Adverse Effect” or other terms of similar import or effect, in this Agreement which case such representations and warranties shall be true and correct in all respects at and as of the Closing DateDate (after giving effect to any amendments or supplements to the Sellers’ Disclosure Schedules provided by Sellers and accepted by Purchaser as provided in Section 6.4) except for those representations and warranties that refer to facts existing at a specific date, which shall be true and Seller correct in all respects as of such date).
(d) Each of the Sellers and Shareholder the Company shall have performed and complied with all agreements of their representative 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 Change,” “Material Adverse Effect” or other terms of similar import or effect, in which case each of the Sellers and the Company shall have performed and complied with all of such covenants required hereby in all respects through the Closing;
(e) There shall not be performed any judgment, order, decree, stipulation, injunction of charge in effect preventing consummation of any of the transactions contemplated by them prior to this Agreement.
(f) All waiting periods in respect of approvals or consents from Governmental Authorities under the Legal Requirements shall have expired or been terminated.
(g) There shall not have occurred and at be continuing a Material Adverse Change since the Closing Date; date of this Agreement.
(4h) all consents, approvals and waivers necessary to permit Seller to transfer the Acquired Assets to Purchaser shall have been obtained; received a certificate, validly executed by the principal executive officer of the Company for and on its behalf, with respect to the matters set forth in Section 2.5(c) and (5d) no proceeding by any person as of the Closing Date unless the Purchaser has extended the Expiration Date pursuant to Section 6.8(h) in which event the certificate shall be as of January 15, 2008 with respect to the matters set forth in Section 2.5(c).
(i) Purchaser shall have been instituted or threatened which questions received a certificate, validly executed by the validity or legality Secretary of the Company, certifying as to (i) the correct form and effectiveness of the Articles of Incorporation and the Bylaws of the Company and each Subsidiary, including all amendments thereto; and (ii) the valid adoption of resolutions of the board of directors of the Company approving this Agreement and the consummation of the transactions contemplated hereby; .
(6j) Seller and Shareholder Purchaser shall have furnished Purchaser with such certificates received a certificate of its officers as may be reasonably requested by Purchaser good standing of the Company and each Subsidiary from the Secretary of State of the State of Texas and any other jurisdiction where the Company and each Subsidiary is required to evidence compliance with qualify to do business, each dated within ten (10) Business Days prior to the conditions set forth in this Section 4.05; Closing.
(7k) Purchaser shall have received from Seller resolutions adopted the principal executive officer and Secretary of the Company an updated capitalization certificate to reflect any changes to the information set forth in Section 5.2.
(l) Each Xxxxxxx Xxxxxxx, Xxxxx Xxxxxx and Xxxx Xxxxxxxxxxx shall have executed and delivered a release in substantially the form attached hereto as Exhibit A.
(m) The Sellers’ Representative and Escrow Agent shall have entered into the escrow agreement substantially in the form of Exhibit B hereto (the “Escrow Agreement”).
(n) The Company shall have fulfilled its obligations to pay any “stay pay” bonuses authorized by the Company’s board of directors directors, with the exception of those for Xxxxxxx Xxxxxxx, Xxxx Xxxxxxxxxxx and shareholders Xxxxx Xxxxxx who by execution of Seller approving this Agreement have agreed to forego their “stay pay” bonuses at Closing provided that an employment agreement with each is executed with the Purchaser or the Company for employment after the Closing.
(o) The Company and NTS Landlord shall have entered into an amended and restated Lease Agreement in a form attached hereto as Exhibit C (the “Lease Agreement”).
(p) Sellers holding in the aggregate ninety-five percent (95%) of the Company’s Equity Interests entitled to vote for election of the board shall be Parties to this Agreement at or before Closing and any other Equity Interest Equivalents shall have been cancelled or terminated with any consideration for such cancellation paid prior to the Closing.
(q) Telephone Electronics Corporation and Xxxxxx X. Fail, Xxxxx Xxxxxxxx, Xxxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxx shall have entered into a Non-Compete Agreement in form attached hereto as Exhibit D.
(r) The Abatement Matters shall have been completed by the Company as set forth in Section 6.9(c) and (d).
(s) Each Seller shall have duly executed and delivered an assignment of any and all rights such Seller has under the Stockholder Agreement, dated August 11, 1990, by and among the Company, Telephone Electronics Corporation and the transactions contemplated hereby; stockholders party thereto (8) the closing “Assignment”).
(t) The Company shall have obtained and paid for directors’ and liabilities’ tail coverage as provided in Section 6.10. Purchaser may in its sole and exclusive discretion waive any condition specified in this Section 2.5 if it executes a writing so stating at or prior to the Closing. Notwithstanding anything in this Section 2.5 to the contrary, in the event of an extension of the transactions contemplated Expiration Date by the Note Purchase Agreement Purchaser in accordance with Section 6.8(d), all of the conditions set forth above, other than those set forth in Sections 2.5(h)-(t), shall be deemed to have occurred; and (9) Seller and Shareholder shall have made been satisfied or waived by the deliveries required pursuant to Section 4.03 of this AgreementPurchaser.
Appears in 1 contract
Samples: Stock Purchase Agreement (Xfone Inc)
Conditions to Purchaser’s Obligation to Close. The Purchaser's obligation of to --------------------------------------------- close this transaction is expressly conditioned upon the following, which if not satisfied or waived by Purchaser on or before the Closing Date, shall permit Purchaser to consummate withdraw the transactions provided for hereby is subject Option Exercise Notice and declare the Option Agreement null and void and of no further force and effect by written notice to Seller; whereupon neither Seller nor Purchaser shall have any further obligations under the Option Agreement or these terms and conditions.
A. Seller shall have performed and complied with all of the covenants and agreements contained in the Option Agreement and/or these terms and conditions which are to be performed prior to the satisfactionClosing Date;
B. Seller shall have delivered the "marked down" commitment from the title underwriter updated through the Closing Date in the full amount of the Purchase Price subject only to the Permitted Exceptions and deleting the "gap" exception from Schedule B-2;
C. The Property shall not have been materially affected by an moratorium, on legislative or regulatory change, or any flood, accident, condemnation or other material adverse event; and
D. All representations and warranties of Seller as set forth in Paragraph 7 next below shall be substantially true and correct as of the Closing Date. Purchaser may at any time or times before Closing waive any of the foregoing conditions but only in writing signed by Purchaser and delivered to Seller. In the event any of the conditions are not waived by Purchaser prior to the Closing Date, Purchaser may withdraw the Option Exercise Notice and declare the Option Agreement null and void and of the following conditions (any of which mayno further force and effect by written notice to Seller, in Purchaser's sole discretion, be waived in whole or in part): (1) the terms of the debt owed by and thereafter neither Purchaser nor Seller to National Bank, as of the Closing Date (the "National Bank Debt"), shall have been amended to allow for assumption of any further liabilities or obligations under the debt by Purchaser Option Agreement or these terms and payment thereof on a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all representations and warranties of Seller and Shareholder contained in this Agreement shall be true and correct in all respects at and as of the Closing Date, and Seller and Shareholder shall have performed all agreements and covenants required hereby be performed by them prior to and at the Closing Date; (4) all consents, approvals and waivers necessary to permit Seller to transfer the Acquired Assets to Purchaser shall have been obtained; (5) no proceeding by any person shall have been instituted or threatened which questions the validity or legality of the transactions contemplated hereby; (6) Seller and Shareholder shall have furnished Purchaser with such certificates of its officers as may be reasonably requested by Purchaser to evidence compliance with the conditions set forth in this Section 4.05; (7) Purchaser shall have received from Seller resolutions adopted by the board of directors and shareholders of Seller approving this Agreement and the transactions contemplated hereby; (8) the closing of the transactions contemplated by the Note Purchase Agreement shall have occurred; and (9) Seller and Shareholder shall have made the deliveries required pursuant to Section 4.03 of this Agreement.conditions
Appears in 1 contract
Conditions to Purchaser’s Obligation to Close. The Purchaser’s obligation of Purchaser to consummate effect the transactions provided for contemplated hereby is shall be subject to the satisfaction, satisfaction or waiver on or prior to the Closing Date, Date of all of the following conditions conditions:
(any of which may, in Purchaser's sole discretion, be waived in whole or in part): (1a) the terms The representations and warranties of the debt owed by Seller to National Bank, Sellers contained in this Agreement (which for purposes of this paragraph shall be read as though none of them contain any adverse affect or other materiality qualifier) shall be true and correct on and as of the Closing Date (with the "National Bank Debt"), shall have been amended to allow for assumption of the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all same effect as though such representations and warranties had been made on and as of Seller such date, except where the failure of the representations and Shareholder contained warranties in this Agreement shall the aggregate to be true and correct in all respects at will not have a Company Material Adverse Effect (it being understood that representations and warranties that speak as of a specific date or time need only be true and correct as of such date or time);
(b) The covenants and agreements of Sellers and the Company to be performed on or before the Closing Date, and Seller and Shareholder Date in accordance with this Agreement shall have been duly performed in all agreements and covenants required hereby be performed by them prior to and at the Closing Date; material respects;
(4c) Sellers shall have obtained all consents, waivers or approvals and waivers necessary that, pursuant to permit Seller to transfer the Acquired Assets to Purchaser shall have been obtained; (5terms of the Contracts listed on Exhibit 7.2(c)(i) no proceeding by any person shall have been instituted or threatened which questions hereof, are required in connection with the validity or legality consummation of the transactions contemplated hereby; by this Agreement;
(6d) Seller and Shareholder The Sellers shall have furnished to Purchaser with at the Closing Date such other customary documents, certificates of its officers or instruments as Purchaser may be reasonably requested request evidencing compliance by Purchaser to evidence compliance the Sellers and the Company with the conditions set forth in terms of this Section 4.05Agreement; and
(7e) Purchaser shall have received from Seller resolutions adopted by at the board of directors and shareholders of Seller approving this Agreement and Closing the transactions contemplated hereby; (8) the closing of the transactions contemplated by the Note Purchase Agreement shall have occurred; and (9) Seller and Shareholder shall have made the deliveries required pursuant documents referred to in Section 4.03 of this Agreement8.1.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Interactive Data Corp/Ma/)
Conditions to Purchaser’s Obligation to Close. The Purchaser’s obligation of Purchaser to consummate the transactions provided for hereby to be performed by it in connection with Closing is subject to the satisfaction, on or prior to the Closing Date, satisfaction of the following conditions at or prior to Closing: (any of which may, in Purchaser's sole discretion, be waived in whole or in part): i) there has been no Material Adverse Change on the Business; (1ii) the terms of the debt owed by Seller to National Bank, as of the Closing Date (the "National Bank Debt"), shall have been amended to allow for assumption of the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all representations and warranties of Seller and Shareholder contained set forth in this Agreement Article 4 shall be true and correct in all respects at and as of the Closing Date, and ; (iii) Seller and Shareholder shall have performed and complied with all agreements and of their covenants required hereby be performed by them prior to and at the Closing Datehereunder in all respects; (4iv) all consents, approvals actions to be taken by Seller in connection with consummation of the Contemplated Transactions and waivers necessary documents required to permit Seller effect the Contemplated Transactions shall be reasonably satisfactory in form and substance to transfer the Acquired Assets to Purchaser shall have been obtainedPurchaser; (5v) no proceeding by any person Seller shall have been instituted or threatened which questions the validity or legality of the transactions contemplated herebyexecute and deliver those closing deliverables referenced in Section 3.2(a); (6) Seller and Shareholder shall have furnished Purchaser with such certificates of its officers as may be reasonably requested by Purchaser to evidence compliance with the conditions set forth in this Section 4.05; (7vi) Purchaser shall have received from Seller resolutions adopted obtained, or be in the process of obtaining, all licenses and permits necessary to own, operate and otherwise conduct the Business, including but not limited to any and all consents or approvals necessitated by the board of directors and shareholders of Seller approving this Agreement and the transactions contemplated herebyContemplated Transaction; (8) vii) the closing of the transactions contemplated by the Note Purchase Agreement Due Diligence Period (defined below) shall have occurredexpired without Purchaser delivering written notice of termination to Seller pursuant to Section 3.4(c)(ii); and (9viii) Seller Purchaser shall have, with respect to the Business Location, either assumed the Lease or entered into a new Sub-lease with lessee of such Business Location which is written on terms and Shareholder shall have made the deliveries required pursuant conditions satisfactory to Section 4.03 of this AgreementPurchaser.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (MJ Holdings, Inc.)
Conditions to Purchaser’s Obligation to Close. The obligation of (a) Purchaser shall not be obligated to consummate the transactions provided for hereby is subject to the satisfaction, on or prior to proceed with the Closing Date, unless and until each of the following conditions (any of which may, in Purchaser's sole discretion, be has been either fulfilled or waived in whole or in part): writing by Purchaser:
(1) the terms of the debt owed by Seller to National Bank, as of the Closing Date (the "National Bank Debt"), This Agreement shall not have been amended previously terminated pursuant to allow for assumption of the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; any other provision hereof;
(2) Purchaser's due diligence examination of the Business and the Acquired Assets Seller shall be acceptable prepared to deliver or cause to be delivered to Purchaser in its sole discretion; all instruments and documents to be delivered to Purchaser at the Closing pursuant to Section 14 or any other provision of this Agreement;
(3) all The representations and warranties of Seller and Shareholder contained in this Agreement shall have been true on the date of this Agreement and shall be true and correct in all respects at and as of the Closing DateClosing, and Seller and Shareholder shall have performed all agreements obligations and complied with all covenants required hereby by to be performed by them prior Seller pursuant to and at the Closing Date; this Agreement;
(4) all consents, approvals and waivers necessary to permit Seller to transfer the Acquired Assets to Purchaser The Management Agreement shall have been obtainedterminated on or before the Closing at no cost, liability or expense to Purchaser; and
(5) no proceeding by any person Seller shall have been instituted or threatened delivered to Purchaser Tenant Estoppels from (i) the Major Tenants and (ii) tenants leasing space which questions in the validity or legality aggregate comprises not less than eighty-five percent (85%) of the transactions contemplated hereby; rentable office and retail space at the Property which is then leased to tenants (6inclusive of the Major Tenants) excluding rentable space in the parking garage. Seller may, but shall not be obligated to, substitute a Seller estoppel certificate in the form attached hereto as Exhibit L-1 ("Seller Estoppel"), certifying to substantially the same matters as a Tenant Estoppel, for any Tenant Estoppel required hereunder other than a Tenant Estoppel of a Major Tenant. In the event that Seller delivers a Seller Estoppel in lieu of a Tenant Estoppel with respect to any Lease at Closing, Seller and Shareholder Purchaser shall have furnished reasonably cooperate to obtain a Tenant Estoppel with respect to such Lease, and the Seller Estoppel shall expire and be of no further force or effect effective upon the delivery to Purchaser with of a Tenant Estoppel executed by the tenant under such certificates of its officers as may be reasonably requested by Purchaser to evidence compliance Lease after Closing which complies with the conditions requirements for Tenant Estoppels set forth in this Section 4.05; the following sentences. No Tenant Estoppel shall (7A) Purchaser be inconsistent with the Lease Schedule attached hereto as Exhibit D in any material respect, (B) assert the existence of a material default by the landlord under the subject Lease, (C) assert the existence of a material agreement between the landlord and the tenant not reflected in the subject Lease, or (D) disclose any other matter which materially and adversely affects the Property, unless in each case, prior to Closing, Seller shall have received from Seller resolutions adopted by submitted to Purchaser written evidence reasonably acceptable to Purchaser indicating that any such unpermitted matter has been resolved. Purchaser agrees that it will accept any Tenant Estoppel which contains language which qualifies the board statements set forth in paragraph 7 or 8 of directors Exhibit L regarding Landlord default or other actions of Landlord as being within the "knowledge", "best knowledge", "actual knowledge" or any words of similar import or effect of the tenant that executes and shareholders delivers such Tenant Estoppel.
(b) In the event that any of Seller approving the foregoing conditions shall not have been fulfilled on or before the time for Closing hereunder, then subject to the provisions of Section 17(b) hereof, Purchaser may elect, upon notice to Seller, to terminate this Agreement, in which event the Xxxxxxx Money shall be returned to Purchaser, and neither party shall have any further liability or obligation to the other except for the provisions of this Agreement and the transactions contemplated hereby; (8) the closing of the transactions contemplated by the Note Purchase Agreement shall have occurred; and (9) Seller and Shareholder shall have made the deliveries required pursuant to Section 4.03 of this Agreementthat expressly survive Closing or early termination.
Appears in 1 contract
Samples: Real Estate Sale Agreement (Parkway Properties Inc)
Conditions to Purchaser’s Obligation to Close. The obligation of Purchaser to consummate the transactions provided for hereby Close under this Agreement is subject to the satisfaction, on or prior to the Closing Date, each of the following conditions (any one of which may, in at the option of Purchaser's sole discretion, be waived in whole writing by Purchaser) existing on the Closing Date, or in part): (1) such earlier date as the terms context may require.
5.01. Each of the debt owed by Seller to National Bank, as of the Closing Date (the "National Bank Debt"), shall have been amended to allow for assumption of the debt by Purchaser and payment thereof on a schedule acceptable to Purchaser; (2) Purchaser's due diligence examination of the Business and the Acquired Assets shall be acceptable to Purchaser in its sole discretion; (3) all representations and warranties of Seller and Shareholder in this Agreement, the disclosures contained in the exhibits to this Agreement, and all other information delivered under this Agreement shall be true and correct in all material respects at and as of the Closing DateDate as though each representation, warranty, and Seller disclosure were made and Shareholder shall have performed all agreements delivered at and covenants required hereby be performed by them prior to and at as of the Closing Date; .
5.02. Company and Seller shall each comply with and perform all agreements, covenants, and conditions in this Agreement required to be performed and complied with by each of them. All requisite action (4corporate and other) all consents, approvals in order to consummate this Agreement shall be properly taken by Company and waivers necessary to permit Seller. Seller to transfer the Acquired Assets shall deliver to Purchaser shall have been obtained; (5) no proceeding by a compliance certificate verifying and warranting Seller’s and Company’s compliance.
5.03. No suit or proceeding, legal or administrative, relating to any person shall have been instituted or threatened which questions the validity or legality of the transactions contemplated hereby; (6) by this Agreement shall be overtly threatened or commenced that, in the sole discretion of Purchaser and its counsel, would make it inadvisable for Purchaser to Close this transaction.
5.04. All necessary government approvals and filings regarding this transaction shall be received or made prior to the Closing Date in substantially the from applied for to the reasonable satisfaction of Purchaser and its counsel. Any applicable waiting period for the approvals and filings shall be expired.
5.05. All corporate and stockholder action necessary to consummate the transactions contemplated in this Agreement shall be properly taken by Seller and Shareholder shall have furnished Purchaser with such certificates of its officers as may be reasonably requested by Purchaser to evidence compliance with the conditions set forth in this Section 4.05; (7) Company. Purchaser shall have received from Seller receive copies of all appropriate resolutions adopted by the of Company’s and Seller’s board of directors and shareholders of Seller approving relating to this Agreement and the transactions contemplated hereby; (8) the closing of the transactions contemplated Agreement. The resolutions shall be certified by the Note Purchase Agreement their respective corporate secretaries.
5.06. Purchaser shall have occurred; and (9) Seller and Shareholder shall have made the deliveries required pursuant receive written consents from all persons listed in Exhibit E to Section 4.03 of this Agreement.
5.07. At the time of the execution by Purchaser, Purchaser represents and warrants that Purchaser has had the opportunity to review and consider title to Company’s assets, production reports relative to all oil and gas properties owned by Company, operating agreements relative to all oil and gas properties owned by Company, purchase agreements relating to the purchase of the oil and gas properties owned by Company and all other financial and other records relative to the existence and operation by Company of its oil and gas properties, including the existence of payables, lien and litigation. Purchaser has accepted title and other items described hereinabove and further represents that same are not a basis for Purchaser refusing to close the sale described herein.
5.08. On or before the Closing Date, Seller shall secure the resignations of all directors and officers currently serving on the board of directors of Company.
5.09. Seller and Purchaser shall enter into a mutually agreeable Escrow Agreement with Xxxx X. Xxxxxxxx, Attorney at Law (Escrow Agent), 0000 X. Xxxxxxxx, Suite 203, Midland, Texas 79705 for the purposes described in Article 9 below. Upon execution of this agreement, Purchaser shall remit a total of 304,000 shares of Doral common stock to the Sellers pro rata to the total number of outstanding Xxxxx Shares owned by each Seller. These shares must be delivered to the escrow agent within 10 business days once dual execution of this agreement has been completed. The issuance of the Deposit Shares to the Sellers will be dependent upon an exemption from the registration requirements of the US Securities Act of 1933 (the “Securities Act”) being available for the issuance of all of the Deposit Shares to all of the Sellers. The Sellers acknowledge and understand that the Deposit Shares will be “restricted securities” as contemplated under Rule 144 of the Securities Act and will be valued by the Buyer and the Sellers at a price of $2.50 per share or $760,000.00 USD. These shares will contain “piggyback registration rights”. If the Acquisition is not completed, the Sellers will be entitled to keep the Deposit Shares, unless the Acquisition is not completed due to a breach by the Seller of any of the terms, conditions, representations, warranties or covenants of the Definitive Agreements (including, but not limited to, the requirement that the Seller obtain all necessary third party consents or authorizations prior to closing) or as a result of the malfeasance of the Seller, (collectively, a “Sellers Breach”). If the Acquisition is completed, or if the Acquisition is not completed due to a Sellers Breach, the Sellers will return all of the Deposit Shares to the Buyer for cancellation. Doral’s common stock trades on the OTC Bulletin Board under the symbol DEGY.
Appears in 1 contract