Conditions to Purchaser’s Obligations. The obligation of Purchaser to consummate the transactions contemplated by this Agreement is subject to the satisfaction of the following conditions as of the Closing Date: (a) The representations and warranties set forth in Sections 3 and 4 of this Agreement shall be true and correct in all material respects (except for those representations and warranties which are qualified by materiality, which shall be true and correct in all respects) when made and at and as of the Closing Date as though then made (other than those representations and warranties which address matters only as of a particular date, which shall have been true and correct only as of such date); (b) The Company and the Sellers shall have performed and complied in all material respects all of the covenants and agreements required to be performed by them under this Agreement at or prior to the Closing; (c) No event shall have occurred since the date of this Agreement that would constitute or would reasonably be expected to constitute a Material Adverse Effect; (d) Purchaser shall have obtained the Committed Financing; (e) Each Seller shall have delivered to Purchaser the documents of assignment with respect to the Units held by such Seller; (f) The Company shall have delivered to Purchaser each of the following: (i) a certificate of the Company, dated the Closing Date, stating that the preconditions specified in Sections 2.2(a) and 2.2(b) above have been satisfied; (ii) a copy of the Escrow Agreement, duly executed by the Seller Representative; (iii) a copy of the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule); (iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units of the Company have been cancelled and are no longer issued or outstanding, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule; (v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect; (vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule; (vii) at least three (3) business days prior to Closing, the Unqualified Opinions; (viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formed; and (ix) certified copies of (A) the organizational documents of the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement and the other Transaction Documents, as duly adopted by the Company’s board of managers and in full force and effect.
Appears in 1 contract
Conditions to Purchaser’s Obligations. The Purchaser’s obligation of Purchaser to pay the Purchase Price, to purchase the Property and otherwise consummate the transactions transaction contemplated by this Agreement is hereby shall be subject to the satisfaction of the following conditions precedent on and as of the Closing Date:
(a) The representations and warranties set forth of the Seller contained in Sections 3 and 4 of this Agreement shall be have been true and correct in all material respects (except for those representations when made and warranties which are qualified by materiality, which shall be true and correct in all respects) when made and material respects at and as of the Closing Date as though then if such representations and warranties were made (other than at and as of the Closing Date except for those representations and warranties which address matters only speak to a specific date and except as of a particular dateotherwise expressly permitted pursuant to this Agreement, which shall have been true and correct only as of such date);
(b) The Company and the Sellers Seller shall have performed and complied in all material respects all of with the covenants covenants, agreements and agreements conditions required by this Agreement to be performed or complied with by them under this Agreement at or Seller prior to or on the ClosingClosing Date subject to Seller’s rights to extend the Closing Date as expressly provided in the Agreement;
(b) Purchaser shall have received Seller’s Closing Documents;
(c) No event the Title Company shall have occurred since be prepared to issue to Purchaser the date of this Agreement that would constitute or would reasonably be expected to constitute a Material Adverse EffectTitle Policy;
(d) Purchaser Seller shall have obtained delivered any notice required under the Committed Financing;Union Contracts due to the transfer of the Property to Purchaser; and
(e) Each Seller shall have delivered to Purchaser the documents of assignment with respect an estoppel certificate dated not more than twenty (20) days prior to the Units held by such Seller;
(f) The Company shall have delivered to Purchaser each of the following:
(i) a certificate of the Company, dated the Closing Date, stating that the preconditions specified in Sections 2.2(a) Date and 2.2(b) above have been satisfied;
(ii) a copy of the Escrow Agreement, duly executed by the Seller Representative;
(iii) a copy Manager containing the statements required by Section 20.16 of the Investors Rights Management Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units of the Company have been cancelled and are no longer issued or outstanding, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formed; and
(ix) certified copies of (A) the organizational documents of the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement and the other Transaction Documents, as duly adopted by the Company’s board of managers and in full force and effect.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Hotel Capital Inc)
Conditions to Purchaser’s Obligations. (a) The obligation of Purchaser to consummate deliver the transactions contemplated by this Agreement Firm Purchase Price on the Firm Payment Date is subject to the satisfaction of the following conditions as of the Closing Dateconditions:
(ai) The the purchase by the Underwriters of the Initial DECS pursuant to the Underwriting Agreement shall have been consummated as contemplated under the Underwriting Agreement;
(ii) the representations and warranties set forth of the Seller contained in Sections 3 and 4 of this Agreement Article II hereof shall be true and correct in all material respects as of the Firm Payment Date;
(except for those iii) the Collateral Agreement shall have been executed by the Seller and the delivery of the Collateral thereunder shall have been made; and
(iv) each Other Seller shall have executed and delivered a forward purchase contract dated as of the date hereof between such Other Seller and Purchaser;
(v) each Other Seller shall have executed and delivered a collateral agreement dated as of the date hereof among such Other Seller, the Purchaser and the collateral agent; and
(vi) the Reimbursement Agreement shall have been executed by the Sellers.
(b) The obligation of Purchaser to deliver the Additional Purchase Price on the Option Closing Date is subject to the satisfaction of the following conditions:
(i) the purchase by the Underwriters of the Additional DECS pursuant to the Underwriting Agreement shall have been consummated as contemplated under the Underwriting Agreement;
(ii) the representations and warranties which are qualified by materiality, which of the Seller contained in Article II hereof shall be true and correct in all respects) when made and at and as of the Closing Date as though then made (other than those representations and warranties which address matters only as of a particular date, which shall have been true and correct only as of such date);
(b) The Company and the Sellers shall have performed and complied in all material respects all of the covenants and agreements required to be performed by them under this Agreement at or prior to the Closing;
(c) No event shall have occurred since the date of this Agreement that would constitute or would reasonably be expected to constitute a Material Adverse Effect;
(d) Purchaser shall have obtained the Committed Financing;
(e) Each Seller shall have delivered to Purchaser the documents of assignment with respect to the Units held by such Seller;
(f) The Company shall have delivered to Purchaser each of the following:
(i) a certificate of the Company, dated the Option Closing Date, stating that the preconditions specified in Sections 2.2(a) and 2.2(b) above have been satisfied;
(ii) a copy of the Escrow Agreement, duly executed by the Seller Representative;; and
(iii) a copy the delivery of any additional Collateral under the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units of the Company Collateral Agreement shall have been cancelled and are no longer issued or outstanding, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formed; and
(ix) certified copies of (A) the organizational documents of the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement and the other Transaction Documents, as duly adopted by the Company’s board of managers and in full force and effectmade.
Appears in 1 contract
Conditions to Purchaser’s Obligations. The obligation All the obligations of Purchaser to consummate the transactions contemplated by under this Agreement is are subject to the satisfaction fulfillment, prior to or at the Closing, of each of the following conditions as conditions, any or all of which (other than the condition set forth in clause (d) below) Purchaser may waive in writing: 19
(a) Seller and Shareholder shall have performed in all material respects all of their obligations under this Agreement required to be performed at or before the Closing, and there shall have been delivered to Purchaser a certificate of the Shareholder and an officer of Seller, dated the Closing Date:, to such effect;
(ab) The representations and warranties set forth of Seller and Shareholder contained in Sections 3 and 4 Section 5 of this Agreement shall be true and correct in all material respects (except for those representations and warranties which are qualified by materiality, which shall be true and correct in all respects) when made and at as of the date hereof and as of the Closing Date with the same force and effect as though then made (other than those such representations and warranties which address matters only had been made as of a particular datethe Closing Date, which and there shall have been true delivered to Purchaser a certificate of an executive officer of Seller and correct only as of Shareholder, dated the Closing Date, to such date);
(b) The Company and the Sellers shall have performed and complied in all material respects all of the covenants and agreements required to be performed by them under this Agreement at or prior to the Closingeffect;
(c) No event action or proceeding to enjoin any transaction contemplated by this Agreement shall have occurred since the date of this Agreement that would constitute been instituted, and no injunction or would reasonably restraining order in any action or proceeding against any such transaction shall then be expected to constitute a Material Adverse Effectin effect;
(d) Purchaser shall have obtained the Committed Financing;
(e) Each Seller shall have delivered to Purchaser documents in form and substance reasonably satisfactory to Purchaser demonstrating the documents release of assignment with respect to all Liens on the Units held by such SellerAcquired Assets;
(e) No change that has had a Material Adverse Effect on the Business shall have occurred and shall not be threatened in any way as a result of any event or occurrence; and
(f) The Company Purchaser shall have delivered to Purchaser each of the following:
(i) a certificate of the Company, dated the Closing Date, stating that the preconditions specified enter into an employment agreement with Xxxxxx Xxxxx in Sections 2.2(a) form and 2.2(b) above have been satisfied;
(ii) a copy of the Escrow Agreement, duly executed by the Seller Representative;
(iii) a copy of the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably substance satisfactory to Purchaser that (A) all Class B Units of the Company have been cancelled and are no longer issued or outstanding, and (B) the Company and in its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formed; and
(ix) certified copies of (A) the organizational documents of the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement and the other Transaction Documents, as duly adopted by the Company’s board of managers and in full force and effectsole discretion.
Appears in 1 contract
Conditions to Purchaser’s Obligations. The obligation of Purchaser to consummate the transactions contemplated by this Agreement Transactions is subject to the satisfaction fulfillment of all of the following conditions as of on or prior to the Closing Date. If any of the following conditions is not fulfilled on the Closing Date, then this Agreement may, at Purchaser’s option, be terminated pursuant to and with the effect set forth in Article X:
(a) The representations Each and warranties set forth in Sections 3 every representation and 4 of this Agreement shall be true and correct in all material respects (except for those representations and warranties which are qualified warranty made by materiality, which shall be true and correct in all respects) when made and at and as of the Closing Date as though then made (other than those representations and warranties which address matters only as of a particular date, which Seller shall have been true and correct only when made and shall be true and correct as if originally made on and as of such date);the Closing Date.
(b) The Company and the Sellers shall have performed and complied in all material respects all All obligations of the covenants and agreements required Seller to be performed by them under this Agreement hereunder through, and including on, the Closing Date (including, without limitation, all obligations which Seller would be required to perform at or prior to the Closing;Closing if the Transactions were consummated) shall have been performed.
(c) No event Seller shall have occurred since delivered at the date Closing all of this Agreement that would constitute or would reasonably be expected to constitute a Material Adverse Effect;the documents, instruments and other items, and shall have entered into the agreements, set forth in Section 7.3.
(d) Purchaser The landlord under the ABQ Lease shall have obtained executed and delivered to Purchaser a Landlord Consent and Estoppel in the Committed Financing;form attached hereto as Exhibit C.
(e) Each Seller customer under a MCTM Customer Contract and each customer under a Web Hosting Agreement shall have executed and delivered to Purchaser a Contract Assignment in the documents form attached as part of assignment with respect Exhibit D that corresponds to the Units held by such Seller;customer.
(f) The Company Each Transferred Employee listed on Schedule 5.1(g) shall have accepted employment at will with Purchaser effective at the Effective Time (except that any Transferred Employee with whom Purchaser elects to enter into an employment agreement shall have executed and delivered such employment agreement in form and substance satisfactory to Purchaser Purchaser), and each of the following:Transferred Employee shall have executed and delivered an employee estoppel in a form prescribed by Purchaser.
(ig) a certificate No default on the part of the Company, dated the Closing Date, stating that the preconditions specified in Sections 2.2(a) and 2.2(b) above have been satisfied;
(ii) a copy of the Escrow Agreement, duly executed by the Seller Representative;
(iii) a copy of the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units of the Company have been cancelled and are no longer issued or outstanding, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained occurred and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of be continuing under the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formed; and
(ix) certified copies of (A) the organizational documents of the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement and the other Transaction Documents, as duly adopted by the Company’s board of managers and in full force and effectMaster ASP Agreement.
Appears in 1 contract
Conditions to Purchaser’s Obligations. [(a)] The obligation of Purchaser to consummate deliver the transactions contemplated by this Agreement [Initial] Purchase Price on the Advance Payment Date is subject to the satisfaction of the following conditions as of the Closing Dateconditions:
(ai) The the purchase by the Underwriter of the Initial DECS pursuant to the Underwriting Agreement shall have been consummated as contemplated under the Underwriting Agreement;
(ii) the representations and warranties set forth of Seller contained in Sections 3 and 4 of this Agreement Article II hereof shall be true and correct in all material respects as of the Advance Payment Date;
(except for those iii) the representations and warranties which are qualified by materiality, which of Corporate Seller Control Person contained in Article II hereof shall be true and correct in all respects) when made and at and as of the Closing Date as though then made Advance Payment Date;
(other than those representations and warranties which address matters only as of a particular date, which iv) the Collateral Agreement shall have been true executed by Seller and correct only as the delivery of such date);the Collateral thereunder shall have been made; and
(v) the Reimbursement Agreement shall have been executed by Seller. [(b) The Company and obligation of Purchaser to deliver the Sellers shall have performed and complied in all material respects all Additional Purchase Price on the Additional Closing Date is subject to the satisfaction of the covenants and agreements required to be performed by them under this Agreement at or prior to the Closing;
(c) No event shall have occurred since the date of this Agreement that would constitute or would reasonably be expected to constitute a Material Adverse Effect;
(d) Purchaser shall have obtained the Committed Financing;
(e) Each Seller shall have delivered to Purchaser the documents of assignment with respect to the Units held by such Seller;
(f) The Company shall have delivered to Purchaser each of the followingfollowing conditions:
(i) a certificate the purchase by the Underwriter of the Company, dated Additional DECS pursuant to the Closing Date, stating that the preconditions specified in Sections 2.2(a) and 2.2(b) above Underwriting Agreement shall have been satisfiedconsummated as contemplated under the Underwriting Agreement;
(ii) a copy the representations and warranties of Seller contained in Article II hereof shall be true and correct as of the Escrow Agreement, duly executed by the Seller RepresentativeAdditional Closing Date;
(iii) a copy the representations and warranties of Corporate Seller Control Person contained in Article II hereof shall be true and correct as of the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of the Equity Advance Payment or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);Date; and
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units the delivery of any additional collateral under the Company Collateral Agreement shall have been cancelled and are no longer issued or outstanding, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formed; and
(ix) certified copies of (A) the organizational documents of the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement and the other Transaction Documents, as duly adopted by the Company’s board of managers and in full force and effectmade.]
Appears in 1 contract
Conditions to Purchaser’s Obligations. (a) The obligation of the Initial Purchaser to consummate purchase and pay for the transactions contemplated by this Agreement Purchased Securities to be purchased hereunder at the Initial Closing is subject to the satisfaction of the following conditions as of precedent (unless waived by the Closing Date:Initial Purchaser):
(ai) The Company shall have filed the Charter Amendment with, and such filing shall have been accepted by, the Utah Department of Commerce, Division of Corporations and Commercial Code and the Initial Purchaser shall have received reasonably satisfactory evidence of such filing;
(ii) The Company shall have duly issued and delivered to the Initial Purchaser the certificates for the Preferred Shares and the Warrants pursuant to Section 3.2(a);
(iii) The Company shall have performed its obligations under, and shall have complied with, all the covenants and agreements set forth in this Agreement and the other Documents and all representations and warranties set forth contained in Sections 3 and 4 of this Agreement Article IV shall be true and correct in all material respects (except for those representations and warranties which are qualified by materiality, which shall be true and correct in all respects) when made and at and as of the date of the Initial Closing Date as though then made (other than those representations and warranties which address matters only as of a particular date, which the Initial Purchaser shall have been true and correct only as received a certificate to that effect signed by an officer of such date)the Company;
(biv) The Company and the Sellers Initial Purchaser shall have performed and complied in all material respects all of the covenants and agreements required to be performed by them under this Agreement at or prior received an opinion from Stoel Rives LLP (counsel to the ClosingCompany) in a form reasonably acceptable to the Initial Purchaser;
(cv) No event shall have occurred since the date of this Agreement that would constitute or would reasonably be expected to constitute a Material Adverse Effect;
(d) The Initial Purchaser shall have obtained the Committed Financing;
(e) Each Seller shall have delivered to Purchaser the documents of assignment with respect to the Units held by such Seller;
(f) The Company shall have delivered to Purchaser each of the following:
(i) received a certificate from the Secretary or an Assistant Secretary of the Company, dated as of the Closing Datedate of the Initial Closing, stating certifying (i) that true and complete copies of the preconditions specified Fundamental Documents of the Company as in Sections 2.2(a) and 2.2(b) above have been satisfied;
effect on such date are attached thereto, (ii) a copy as to the incumbency and genuineness of the Escrow Agreement, duly executed by signatures of each Person executing this Agreement and the Seller Representative;
other Documents on behalf of the Company and (iii) a copy the genuineness of the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out resolutions (attached thereto) of the Equity Payment board of directors or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units similar governing body of the Company have been cancelled and are no longer issued or outstanding, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formed; and
(ix) certified copies of (A) the organizational documents of the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, Documents to which the Company is a party and the consummation of all the transactions contemplated by this Agreement hereby and thereby;
(vi) Each of the other Transaction Documents, as duly adopted by the Company’s board of managers and Documents shall be in full force and effecteffect and no material term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Initial Purchaser;
(vii) The issuance and sale of the Purchased Securities to the Initial Purchaser shall have been consummated simultaneously with the Initial Closing; and
(viii) Each Purchaser shall be satisfied that the conditions to effectiveness set forth in the Credit Agreement Amendment will be satisfied at the Initial Closing after giving effect to the transactions contemplated by Section 2.3(a).
(b) The obligation of each Purchaser to purchase and pay for Mandatory Securities to be purchased hereunder at each Drawdown Closing occurring prior to the Expiration Date is subject to (i) the occurrence of a Trigger Event with respect to the fiscal quarter ending immediately prior to the date of such Drawdown Closing or (ii) receipt of an Advance Purchase Notice.
Appears in 1 contract
Conditions to Purchaser’s Obligations. The obligation of Purchaser Purchaser’s obligations to consummate its purchase of any of the transactions contemplated by Servicing Rights and any of the Advance Receivables pursuant to this Agreement is and otherwise perform its obligations under this Agreement are subject to the satisfaction or waiver of the following conditions as of on or prior to the date specified below or, if not specified, on or prior to each Closing Date:
(a) The Seller shall have performed in all material respects all of its covenants and agreements contained herein which are required to be performed by it;
(b) All of the representations and warranties set forth of the Seller contained in Sections 3 and 4 Section 3.01 of this Agreement shall be true and correct in all material respects (except for those representations and warranties which are qualified by materiality, which shall be true and correct in all respects) when made and at and as of the Closing Date as though then made (other than those representations and warranties which address matters only as of a particular date, which shall have been true and correct only as of such date);
(b) The Company and the Sellers shall have performed and complied in all material respects all of the covenants and agreements required to be performed by them under this Agreement at or prior to the Closing;
(c) No event There shall have occurred since the date of this Agreement that would constitute or would reasonably be expected to constitute a been no Material Adverse EffectEffect with respect to the Pool or Pools subject to purchase at the applicable Closing Date;
(d) The Purchaser shall have obtained received in escrow, or the Committed FinancingPurchaser’s attorneys shall have received in escrow, each of the documents specified in this Section 2.03, duly executed by all signatories other than the Purchaser, as required by the respective terms thereof;
(e) Each Seller The Purchaser shall have delivered received copies of the Third Party Consents, any Mortgage Insurance Provider Consents and all other authorizations, consents, notices (including, without limitation, notices to Purchaser Custodians advising of the documents transfer of assignment with respect the Servicing Rights) and approvals required under the terms of each Third Party Servicing Agreement, each in form and substance reasonably satisfactory to the Units held by such SellerPurchaser, none of which shall be subject to an Unacceptable Condition;
(f) The Company Purchaser shall have received true copies of the Third Party Servicing Agreements, and any amendments and all ancillary documents related thereto, executed by all parties thereto;
(g) The Purchaser shall have received any and all other customary documents as the Purchaser shall have reasonably determined to be necessary or desirable to effectuate the intent and purposes of this Agreement and to consummate the transaction contemplated hereby;
(h) The Seller shall have settled and fulfilled any liability or obligation described in Section 4.01(a);
(i) A duly executed Escrow Agreement shall have been delivered to Purchaser;
(j) A duly executed Assignment Agreement shall have been delivered to the Purchaser;
(k) All fees (including reasonable attorneys’ fees and expenses) owed to the Custodians or any third party under the related Third Party Servicing Agreements and incurred in connection with the transactions contemplated hereunder shall have been paid as of the Servicing Transfer Date;
(l) The Seller shall have delivered to the Purchaser each all powers of attorney reasonably necessary in order for the Purchaser to service the Mortgage Loans pursuant to the Third Party Servicing Agreements;
(m) The Seller shall have delivered to the Purchaser the Preliminary Mortgage Loan Schedule and the Mortgage Loan Schedule as of the following:dates required;
(in) a certificate The Purchaser shall have received the Final Advance Receivables Schedule.
(o) Reserved;
(p) The Purchaser shall have received certificates of corporate resolution of the CompanySeller and Guarantor approving the execution and delivery of this Agreement;
(q) The Purchaser shall receive a certificate, signed by an executive officer of Seller, dated the Closing Date, stating that certifying the preconditions specified in Sections 2.2(a) and 2.2(b) above have been satisfied;
(ii) a copy of the Escrow Agreement, duly executed by the Seller Representative;
(iii) a copy of the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as matters set forth in the Consideration Allocation Schedule(a);
, (ivb) evidence reasonably satisfactory to Purchaser that (A) all Class B Units of the Company have been cancelled and are no longer issued or outstanding, and (Bc) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formedabove; and
(ixr) certified copies of (A) the organizational documents Servicing of the Company, as true and complete and in full force and effect, and (B) Mortgage Loans shall have been transferred to the resolutions duly adopted Purchaser by the Company’s board Seller as of managers authorizing the executionServicing Transfer Date, delivery in accordance with the Servicing Transfer Procedures and performance this Agreement. In the event any of the conditions set forth in this Agreement and the other Transaction DocumentsSection 2.03 are not satisfactory to Purchaser in all material respects, and the consummation of all transactions contemplated by this Agreement and the other Transaction Documents, as duly adopted by the Company’s board of managers and Purchaser shall be entitled to terminate its obligations hereunder in full force and effectaccordance with Section 6.01.
Appears in 1 contract
Samples: Servicing Rights Purchase and Transfer Agreement (R&g Financial Corp)
Conditions to Purchaser’s Obligations. The obligation obligations of Purchaser to consummate purchase the transactions October 2008 Additional Notes contemplated by this Agreement is Second Amendment shall be subject to the satisfaction satisfaction, at or prior to the October 2008 Additional Notes Closing, of the following conditions as of the Closing Dateconditions:
(a) The On the October 2008 Additional Notes Closing Date and also after giving effect to the sale of the October 2008 Additional Notes on such date there shall exist no Default or Event of Default.
(b) Purchaser shall have received a certificate, dated the October 2008 Additional Notes Closing Date and signed on behalf of the Company by an Authorized Representative, certifying on behalf of the Company that on the October 2008 Additional Notes Closing Date and also after giving effect to the sale of the October 2008 Additional Notes on such date (i) there shall exist no Default or Event of Default and (ii) all representations and warranties set forth contained or incorporated by reference in Sections 3 and 4 of this Agreement Second Amendment shall be true and correct in all material respects (except for those with the same effect as though such representations and warranties had been made on the October 2008 Additional Notes Closing Date (it being understood and agreed that any representation or warranty which are qualified by materiality, which its terms is made as of a specified date shall be required to be true and correct in all respects) when made and at and as of the Closing Date as though then made (other than those representations and warranties which address matters only as of a particular date, which shall have been true and correct material respects only as of such specified date);
(b) The Company and the Sellers shall have performed and complied in all material respects all of the covenants and agreements required to be performed by them under this Agreement at or prior to the Closing;.
(c) No event Purchaser shall have occurred since received from each of Xxxxx Xxxxxxxxxx, Esquire, General Counsel of the date of this Agreement that would constitute or would Company, Xxxxx and Roca LLP, special counsel to the Company and Muniz, Ramirez, Xxxxx-Xxxxxx & Xxxx-Xxxxxxxx, special counsel to the Subsidiaries, an opinion addressed to Purchaser and dated the October 2008 Additional Notes Closing Date covering such matters incident to the transactions contemplated herein as the Purchaser may reasonably be expected to constitute a Material Adverse Effect;request.
(d) Purchaser shall have obtained the Committed Financing;
(e) Each Seller shall have delivered to Purchaser the documents of assignment with respect to the Units held by such Seller;
(f) The Company shall have delivered to Purchaser each of the following:
(i) received a certificate of from the Company, dated the October 2008 Additional Notes Closing Date, stating that signed by an Authorized Representative, and attested to by another Authorized Representative, in the preconditions specified in Sections 2.2(a) and 2.2(b) above have been satisfied;
(ii) a copy form of Exhibit B, with appropriate insertions, together with copies of the Escrow Agreement, duly executed by the Seller Representative;
(iii) a copy articles of the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units incorporation and by-laws of the Company have been cancelled and are no longer issued or outstanding, and (B) the resolutions of the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than referred to in such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, certificate and the foregoing shall be in full force form and effect;substance reasonably acceptable to Purchaser.
(vie) at least three (3) business days prior to ClosingOn the October 2008 Additional Notes Closing Date, a copy of all corporate and legal proceedings and all instruments and agreements in connection with the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formed; and
(ix) certified copies of (A) the organizational documents of the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement Second Amendment shall be reasonably satisfactory in form and substance to Purchaser, and Purchaser shall have received all information and copies of all documents and papers, including records of corporate proceedings, governmental approvals, good standing certificates and bring-down telegrams or facsimiles, if any, which Purchaser reasonably may have requested in connection therewith, such documents and papers where appropriate to be certified by proper corporate officials or Governmental Authorities.
(f) Nothing shall have occurred since June 30, 2008 (and Purchaser shall have not have become aware of any facts or conditions not previously known) which Purchaser shall determine has had, or could reasonably be expected to have, (i) a Material Adverse Effect or (ii) a material adverse effect on the transactions contemplated hereby.
(g) All necessary governmental and third party approvals and/or consents in connection with the Transactions shall have been obtained and remain in effect, and all applicable waiting periods with respect thereto shall have expired without any action being taken by any competent authority which restrains, prevents or imposes materially adverse conditions upon the consummation of the transactions contemplated hereby. On the October 2008 Additional Notes Closing Date, there shall not exist any judgment, order, injunction or other restraint issued or filed or a hearing seeking injunctive relief or other restraint pending or notified prohibiting or imposing materially adverse conditions upon transactions contemplated hereby.
(h) Except as set forth in Schedule 5.07 to the Loan Agreement, on the October 2008 Additional Notes Closing Date, there shall be no actions, suits or proceedings pending or threatened (a) with respect to the transactions contemplated hereby, this Second Amendment or any other Transaction Document, or (b) which Purchaser shall determine has had, or could reasonably be expected to have, a Material Adverse Effect.
(i) Purchaser shall have received certificates representing the October 2008 Additional Notes purchased by Purchaser.
(j) Purchaser shall have received such other documents and evidence as are customary for transactions of this type or as Purchaser may reasonably request in order to evidence the satisfaction of the other Transaction Documentsconditions set forth above.
(k) All of the foregoing conditions precedent in this Section 4.2 (other than clause (c) above) shall be satisfied as of the applicable October 2008 Additional Notes Issuance Date (it being understood that for purposes of this clause (k) only, as duly adopted by references in this Section 4.2 to the Company’s board "October 2008 Additional Notes Closing Date" shall be deemed to relate to the applicable October 2008 Additional Notes Issuance Date and references in this Section 4.2 to the phrase "giving effect to the sale of managers and in full force and effectthe October 2008 Additional Notes on such date" shall be deemed to relate to giving effect to the interest payment deemed to have occurred on the applicable October 2008 Additional Notes Issuance Date).
Appears in 1 contract
Samples: Securities Purchase Agreement (Plainfield Asset Management LLC)
Conditions to Purchaser’s Obligations. The obligation Subject to Article XIII, the obligations of Purchaser to consummate the transactions contemplated by this Agreement is are subject to the satisfaction fulfillment prior to or contemporaneously with the Closing of each of the following conditions as conditions, any of the Closing Datewhich may be waived by Purchaser:
(a) The representations and warranties set forth in Sections 3 and 4 of this Agreement shall Seller contained herein will be true and correct in all material respects (except for those representations and warranties which are to the extent qualified by materiality, Material Adverse Effect or similar qualifications, which representations and warranties shall be true and correct in all respects) when made and at and as of the Closing Date as though then such representations and warranties had been made at and as of such time (other than except that those representations and warranties which address matters only as of a particular date, which stated date shall have been be so true and correct only as of such particular stated date); all terms, covenants and conditions of this Agreement to be complied with and performed by Seller at or prior to the Closing will have been duly complied with and performed in all material respects; and Seller will have delivered to Purchaser a certificate dated as of the Closing Date and signed on behalf of Seller by the President of Seller to the foregoing effect;
(b) The Company and All consents to assign to Purchaser the Sellers Contracts listed in Schedule 9.2(b) shall have performed been obtained by Seller and complied in all material respects all of the covenants and agreements required delivered to be performed by them under this Agreement at or prior to the ClosingPurchaser;
(c) No event As of the Closing no order, writ, injunction or decree shall have occurred since been entered or shall be in effect that restrains, enjoins or invalidates any of the date of this Agreement that would constitute or would reasonably be expected to constitute a Material Adverse Effecttransactions contemplated hereby;
(d) Purchaser shall have obtained the Committed Financing;
(e) Each Seller shall have delivered to Purchaser the documents of assignment with respect to the Units held by such Seller;
(f) The Company shall have delivered to Purchaser each of the following:
(i) a certificate of the Company, dated the Closing Date, stating that the preconditions specified in Sections 2.2(a) and 2.2(b) above have been satisfieditems to be delivered by Seller pursuant to Section 10.3;
(iie) a copy Since the date of this Agreement, there shall have been no change in the properties, employee, customer or supplier relationships, business, assets, liabilities, financial position, results of operations or cash flows of the Escrow Agreement, duly executed by Business that could reasonably be expected to have a Material Adverse Effect on the Seller Representative;
(iii) a copy of the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units of the Company have been cancelled and are no longer issued or outstanding, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formed; and
(ix) certified copies of (A) the organizational documents of the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement and the other Transaction Documents, as duly adopted by the Company’s board of managers and in full force and effectBusiness.
Appears in 1 contract
Samples: Asset Purchase Agreement (Gametech International Inc)
Conditions to Purchaser’s Obligations. at the Second Closing. The ----------------------------------------------------------- Purchaser's obligations at the Second Closing, including without limitation its obligation of Purchaser to consummate purchase the transactions contemplated Series C-2 Preferred Stock and the Series C-2 Warrant to be purchased by this Agreement is subject to the Purchaser, are conditioned upon the satisfaction by the Company (or waiver by the Purchaser) of each of the following conditions events as of the Closing DateSecond Closing:
(a) The 5.2.1 the First Closing shall have been consummated;
5.2.2 the representations and warranties of the Company set forth in Sections 3 and 4 of this Agreement shall be true and correct in all material respects (except for those representations and warranties which are qualified by materiality, which shall be true and correct in all respects) when made and at and as of the Second Closing Date as though then if made (other than those representations and warranties which address matters only as of a particular date, which on the Second Closing;
5.2.3 the Company shall have been true and correct only as of such date);
(b) The Company and the Sellers shall have complied with or performed and complied in all material respects all of the covenants agreements, obligations and agreements conditions set forth in this Agreement that are required to be complied with or performed by them under this Agreement at the Company on or prior to before the Second Closing;
(c) No event shall have occurred since 5.2.4 the date of this Agreement that would constitute or would reasonably be expected to constitute a Material Adverse Effect;
(d) Purchaser shall have obtained the Committed Financing;
(e) Each Seller shall have delivered to Purchaser the documents of assignment with respect to the Units held by such Seller;
(f) The Company shall have delivered to the Purchaser each of the following:
(i) a certificate certificate, signed by an officer of the Company, dated the Closing Date, stating certifying that the preconditions conditions specified in Sections 2.2(a) and 2.2(b) above this paragraph 5.2 have been satisfied;
(ii) a copy fulfilled as of the Escrow AgreementSecond Closing, duly executed by it being understood that the Seller Representative;
(iii) Purchaser may rely on such certificate as though it were a copy of the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units representation and warranty of the Company have been cancelled and are no longer issued or outstanding, and (B) made herein;
5.2.5 the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements delivered to the Purchaser an opinion of counsel for the Company, dated as of the Second Closing, in substantially the form set forth on Section 4.17(bExhibit D hereto, and covering such additional matters as may reasonably be requested by the Purchaser;
5.2.6 the Company shall have delivered to the Purchaser duly executed certificates representing the Series C-2 Preferred Stock and Warrant to be purchased by the Purchaser at the Second Closing;
5.2.7 the Registration Statement shall have been declared effective by the SEC and remain continuously effective for fifteen (15) calendar days, and shall be available for use by the Purchaser for the resale of all of the Disclosure ScheduleRegistrable Securities (as defined in the Registration Rights Agreement), including, without limitation, the Conversion Shares and Warrant Shares issuable upon conversion or exercise of all the Securities purchased at the First Closing, the Conversion Shares and Warrant Shares issuable upon conversion or exercise of all the Securities to be purchased by the Purchaser at the Second Closing, the shares of Common Stock issuable upon the conversion or exercise of the Company's Outstanding Securities, and any other shares of capital stock of the Company issued or issuable from time to time (with any adjustments) in replacement of, in exchange for or otherwise in respect of the foregoing;
(v) 5.2.8 the Company, Common Stock including all the Seller Representative Conversion Shares and Warrant Shares shall be listed for trading on the Sellers Nasdaq National Market and no suspension of trading in the Common Stock on such market shall have obtained occurred and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) be continuing as of the Disclosure ScheduleSecond Closing;
5.2.9 the Company shall have authorized and reserved for issuance the number of shares of Common Stock required to be reserved under paragraph 4.5 hereof, and the foregoing shall be in full force and effecthave provided such Purchaser with reasonable evidence thereof;
5.2.10 No Bankruptcy Event (vias defined in the Articles of Amendment) at least shall have occurred;
5.2.11 the average market capitalization of the Company during the three (3) business days prior Trading Days immediately preceding the Second Closing shall be no less than $32,300,000 (proportionately adjusted to Closing, a copy the extent of any increase or decrease in the Consideration Allocation Schedulenumber of shares of Common Stock outstanding from the number of shares of Common Stock outstanding on the date hereof and all other changes in the Company's capitalization);
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for 5.2.12 the Company and each shall have duly filed the Series C-2 Articles of its Subsidiaries as of the most recent practicable date from the Office of Amendment with the Secretary of State of the state in which each such entity was formedState of Colorado and a copy thereof certified by the Secretary of State of the State of Colorado shall have been delivered to the Purchaser and the Series C-2 Articles of Amendment shall not have been amended, modified or rescinded; and
(ix) certified copies 5.2.13 since the date of (A) this Agreement, there shall not have occurred, in the organizational documents reasonable judgment of the Purchaser, any material adverse change in the business, operations, financial condition, properties, prospects or results of operation of the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement and the other Transaction Documents, as duly adopted by the Company’s board of managers and in full force and effect.
Appears in 1 contract
Samples: Securities Purchase Agreement (Webb Interactive Services Inc)
Conditions to Purchaser’s Obligations. The obligation of Purchaser to consummate close the transactions contemplated by this Agreement Transactions is subject to the satisfaction fulfillment (or waiver by Purchaser) of all of the following conditions as of on or prior to the Closing Date:
(a) The (i) the representations and warranties set forth of the Seller contained in Sections 3 this Agreement (other than the Fundamental Representations of the Seller) that are qualified as to Material Adverse Effect shall be true and 4 correct (as so qualified) in all respects as of the Closing Date as though made on and as of the Closing Date (other than such representations and warranties that are expressly made as of an earlier date which need only be true in all respects, as of such earlier date), (ii) each of the remaining representations and warranties (other than the Fundamental Representations of the Seller) that are not so qualified shall be true and correct in all respects as of the Closing Date as though made on and as of the Closing Date (other than such representations and warranties that are expressly made as of an earlier date which need only be true in all respects, as of such earlier date), except where the failure of such representations and warranties to be true and correct, in all respects, individually or in the aggregate, does not result in a Material Adverse Effect, and (iii) the Fundamental Representations of the Seller contained in this Agreement shall be true and correct in all material but de minimis respects (except for those representations and warranties which are qualified by materiality, which shall be true and correct in all respects) when made and at and as of the Closing Date as though then made (other than those representations on and warranties which address matters only as of a particular date, which shall have been true and correct only the Closing Date (except to the extent that such Fundamental Representations of the Seller speak as of such another date);
(b) The Company and the Sellers Seller shall have performed and complied in all material respects all of the covenants and agreements of Seller required to be performed by them the Seller under this Agreement at or prior to the ClosingClosing Date;
(c) No event shall have occurred since the date of this Agreement that would constitute or would reasonably be expected to constitute a Agreement, there shall have been no Material Adverse Effect;
(d) Purchaser (i) no Action shall have obtained been commenced, and not have been terminated, by any Governmental Authority on any grounds to restrain, enjoin or prohibit the Committed Financingconsummation of the Transactions, and (ii) no formal legal complaint shall have been filed, and not dismissed or withdrawn prior to the Termination Date, with any Governmental Authority by a third party (which third party is not Purchaser, a Purchaser Related Party or acting on behalf of, or in concert with, the Purchaser or a Purchaser Related Party) which would, in Purchaser’s commercially reasonable determination after consultation with its outside legal counsel, have a material adverse effect on the ability of the Seller to perform its obligations under this Agreement or to consummate the Transactions;
(e) Each Seller shall have delivered to Purchaser the documents of assignment waiting period under the HSR Act (if a filing is required under the HSR Act) with respect to the Units held by such SellerTransactions shall have expired or been terminated;
(f) The Xxxxxxx Xxxxx shall not have expressly refused to comply with the material terms of the Restrictive Covenant Agreement executed by him; and
(g) the Seller shall, or shall cause the Company shall Group to, have delivered to Purchaser each of the following:
(i) a certificate of the CompanySeller executed by a duly authorized officer thereof, dated as of the Closing Date, stating certifying that the preconditions conditions specified in Sections 2.2(aSection 6.2(a), Section 6.2(b) and 2.2(bSection 6.2(c) above have been satisfied;
(ii) a copy certificate of the Escrow Agreement, duly executed by the Seller Representative;
(iii) a copy Secretary or Assistant Secretary of the Investors Rights AgreementSeller, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units of the Company have been cancelled and are no longer issued or outstanding, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries dated as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formed; and
(ix) certified copies of Closing Date, as to (A) the organizational documents resolutions of the Company, as true and complete and in full force and effect, and (B) managers of the resolutions duly adopted by the Company’s board of managers Seller authorizing the execution, delivery execution and performance of this Agreement and the other Transaction DocumentsTransactions, and (B) the consummation incumbency and signatures of all transactions contemplated by the officers of the Seller executing this Agreement and any other agreement or certificate executed by the other Transaction DocumentsSeller in connection with the Closing;
(iii) a certificate of the Secretary or Assistant Secretary of the Company, dated as of the Closing Date, as duly adopted to (A) a copy of the Certificate of Incorporation of the Company, certified as of a recent date by the Company’s board Secretary of managers State for the State of Delaware, (B) the Bylaws of the Company and (C) a certificate of good standing from the Secretary of State for the State of Delaware and each other state in full force which the Company is qualified to do business as a foreign corporation, in each case, issued as of a recent date by the Secretary of State, and effectwith respect to (A) and (B), certifying that there have been no amendments thereto;
(iv) a properly completed and duly executed Internal Revenue Service Form W-9;
(v) the Escrow Agreement, executed by the Seller;
(vi) pay-off letters (the “Pay-Off Letters”) in form and substance reasonably satisfactory to Purchaser, with respect to the pay-off amounts of the Indebtedness identified on Schedule 6.2(g)(vi) and all Liens and guarantees related to such Indebtedness shall either be terminated and released or the Pay-Off Letters shall specify they will be so terminated and released after satisfaction of the conditions specified therein (in a fashion that will not adversely impact the availability or material terms of the financing arrangements of Purchaser with respect to the Transactions) and Purchaser shall have received evidence of the foregoing reasonably satisfactory to it;
(vii) the Estimated Closing Statement;
(viii) evidence that any and all engagement letters between the Company Group and the Bankers have been terminated effective as of the Closing and a general release of all claims of the Bankers against the Company Group, in a form reasonably satisfactory to Purchaser;
(ix) evidence that the Management Agreement, dated October 5, 2017, by and between Xxxxxx Capital Group LLC and PrimaLoft, Inc. has been terminated effective as of the 36 Closing and a general release of all claims of Xxxxxx Capital Group, LLC, against the Company Group;
(x) certificates evidencing the Shares (other than the Rollover Shares), and a stock power in favor of Purchaser with respect to the Shares (other than the Rollover Shares); and
(xi) resignations of the managers, directors and officers of the Company Group set forth on Schedule 6.2(g)(xi). Any agreement or document to be delivered to Purchaser pursuant to this Section 6.2, the form of which is not attached to this Agreement as an exhibit, shall be in form and substance reasonably satisfactory to Purchaser.
Appears in 1 contract
Samples: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Conditions to Purchaser’s Obligations. The obligation of Purchaser Purchaser's obligations to consummate its purchase of the transactions contemplated by Servicing Rights and the Advance Receivables pursuant to this Agreement is and otherwise perform its obligations under this Agreement are subject to the satisfaction or waiver of the following conditions as of on or prior to the date specified below or, if not specified, on or prior to Closing Date:
(a) The Seller shall have performed in all material respects all of its covenants and agreements contained herein which are required to be performed by it;
(b) All of the representations and warranties set forth of the Seller contained in Sections 3 and 4 Section 3.01 of this Agreement shall be true and correct in all material respects (except for those representations and warranties which are qualified by materiality, which shall be true and correct in all respects) when made and at and as of the Closing Date as though then made (other than those representations and warranties which address matters only as of a particular date, which no Material Adverse Effect shall have been true and correct only as of such date);
(b) The Company and the Sellers shall have performed and complied in all material respects all of the covenants and agreements required to be performed by them under this Agreement at or prior occurred with respect to the ClosingServicing Rights;
(c) No event The Purchaser shall have occurred since received in escrow, or the date Purchaser's attorneys shall have received in escrow, each of the documents specified in this Agreement that would constitute or would reasonably be expected to constitute a Material Adverse EffectSection 2.03, duly executed by all signatories other than the Purchaser, as required by the respective terms thereof;
(d) The Purchaser shall have obtained received copies of the Committed FinancingMajor Consent Letters and all other authorizations and approvals required under the terms of each Securitization Agreement, each in form and substance reasonably satisfactory to the Purchaser;
(e) Each Seller The Purchaser shall have delivered received any and all other customary documents as the Purchaser shall have reasonably determined to Purchaser be necessary or desirable to effectuate the documents intent and purposes of assignment with respect this Agreement and to consummate the Units held by such Sellertransactions contemplated hereby;
(f) The Company Securitization Agreements shall have been amended and restated or otherwise modified to be in substantial conformity with the Amended and Restated Securitization Agreement and shall have been consented to by the related Securities Insurers and fully executed original copies of each amended and restated Securitization Agreement shall have been provided to the Purchaser;
(g) The Seller shall have delivered to the Purchaser each an Officer's Certificate of the following:Seller certifying as to the validity and collectibility of all Unrecovered Advances to be reimbursed hereunder;
(h) Servicing of the Mortgage Loans shall have been transferred to the Purchaser by the Seller in accordance with the Servicing Transfer Procedures, this Agreement and the Sale Procedures Order;
(i) a certificate Legal opinions, substantially in the form of EXHIBIT 4 hereto, shall be delivered to the CompanyPurchaser, dated the Closing Date, Securities Insurers and the Trustees from outside counsel to the Seller stating that the preconditions specified amendments and modifications to the Securitization Agreements are permitted under the respective terms thereof, do not (i) in Sections 2.2(athe case of any Securitization Agreements pursuant to which a REMIC election has been made, adversely affect the status of any REMIC created thereunder as a REMIC, and will not cause a tax to be imposed on any REMIC created thereunder and (ii) otherwise satisfy the requirements of the related Securitization Agreements, each in form and 2.2(b) above have been satisfiedsubstance satisfactory to the Purchaser, the Trustees and the Securities Insurers;
(iij) The Seller shall have delivered to the Purchaser a copy written acknowledgment, in form satisfactory to the Purchaser, from each sub-servicer servicing Mortgage Loans of behalf of the Escrow Agreement, Seller under the related Securitization Agreement that all rights of such sub-servicer with respect to the servicing of such Mortgage Loans under the related Securitization Agreement or the related sub-servicing agreement have been terminated;
(k) A duly executed Assignment and Conveyance Agreement relating the sale and transfer of the Servicing Rights and the Advance Receivables by the Seller Representative;
(iii) a copy of to the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units of the Company shall have been cancelled and are no longer issued or outstanding, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formedPurchaser; and
(ixl) certified copies of All fees (Aincluding reasonable attorneys' fees and expenses) owed to the organizational documents Trustees under the related Securitization Agreements and incurred in connection with the transactions contemplated hereunder shall have been paid as of the CompanyServicing Transfer Date, as true and complete and in full force and effect, and (B) the resolutions duly adopted or provision for such payments at a future date shall have been agreed to by the Company’s board Trustees. In the event the Seller fails to satisfy in all material respects any of managers authorizing the executionconditions set forth in this Section 2.03 as of the applicable date, delivery and performance of the Purchaser shall be entitled to terminate this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement and the other Transaction Documents, as duly adopted by the Company’s board of managers and its obligations hereunder in full force and effectaccordance with Section 6.01.
Appears in 1 contract
Samples: Servicing Rights Transfer Agreement (American Business Financial Services Inc /De/)
Conditions to Purchaser’s Obligations. The obligation obligations of Purchaser to consummate the transactions contemplated by this Agreement is are subject to the satisfaction of the following conditions as of the Closing Date:
(a) The a. the representations and warranties set forth in Sections 3 and 4 of this Agreement Article IV shall be true and correct in all material respects (except for those that the representations and warranties which are qualified by as to “materiality, which ” or “Material Adverse Effect” shall be true and correct in all respectscorrect) when made and at and as of the Closing Date as though then made (other than those such representations and warranties which address matters only as of that expressly relate to a particular specific date, which shall have been need only be true and correct only in all material respects as of such date), except in all cases where the failure to be so true and correct would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(b) The Company and the Sellers b. Seller shall have performed and complied in all material respects with all of the covenants and agreements required to be performed by them Seller under this Agreement at on or before the Closing, except where the failure to so perform and comply would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
c. the Management Agreement shall have been terminated effective immediately prior to the Closing;
(c) No event shall have occurred since d. on or before the date of this Agreement that would constitute or would reasonably be expected to constitute a Material Adverse Effect;
(d) Purchaser shall have obtained the Committed Financing;
(e) Each Closing Date, Seller shall have delivered to Purchaser the documents of assignment with respect to the Units held by such Seller;
(f) The Company shall have delivered to Purchaser each all of the following:
(i) a certificate of the Company, dated the Closing Date, stating that the preconditions specified in Sections 2.2(a) and 2.2(b) above have been satisfied;
(ii) i. a copy of the Escrow Agreementresolutions or other evidence of action of IRBG, duly executed by in its capacity as the Seller Representative;
(iii) a copy general partner of Seller, approving the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units of the Company have been cancelled and are no longer issued or outstanding, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formed; and
(ix) certified copies of (A) the organizational documents of the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement to be performed by Seller;
ii. copies of the Governmental Consents described in Section 3.1(a) to the extent applicable to Seller;
iii. a duly executed counterpart of a xxxx of sale and assignment, in the form attached hereto as Exhibit D (the “Xxxx of Sale and Assignment”), conveying to Purchaser all of the Purchased Assets (other than the Purchased Assets conveyed to Purchaser pursuant to the other Transaction Documents);
iv. a duly executed counterpart of an assignment and assumption agreement, in the form attached hereto as Exhibit E (the “Assignment and Assumption Agreement”), transferring to Purchaser all of the Assumed Liabilities (other than the Progressive Liabilities transferred to Purchaser pursuant to the Assumption of Progressive Post-Closing Liabilities) and the Assumed Contracts;
v. a duly adopted by executed statement in accordance with Treasury Regulation Section 1.1445-2(b), in the Company’s board form attached hereto as Exhibit F (the “Non-Foreign Affidavit”);
vi. a duly executed counterpart of managers a confirmation of transfer of guest items, in the form attached as Exhibit G (the “Confirmation of Transfer of Guest Items”), confirming the transfer of guest safety deposit box contents and the contents belonging to guests in full force the main safe at the hotel on the Property pursuant to Section 7.7(c);
vii. a duly executed counterpart of an assumption of the Progressive Liabilities, in the form attached hereto as Exhibit H (the “Assumption of Progressive Post-Closing Liabilities”);
viii. a duly executed counterpart of a confirmation of transfer of guest baggage entrusted to Seller, in the form attached hereto as Exhibit I (the “Confirmation of Transfer of Guest Baggage”);
ix. a duly executed counterpart of a xxxx of sale, in the form attached hereto as Exhibit J (the “Xxxx of Sale for Passenger/Delivery Vehicles”), transferring all Passenger/Delivery Vehicles to Purchaser, together with certificates of title endorsed for transfer to Purchaser; x. as to each FCC License for which an FCC Approval has been issued prior to the Closing, a duly executed counterpart of an assignment and effect.assumption of the FCC Licenses in the form attached hereto as Exhibit K (the “Assignment and Assumption of FCC Licenses”);
Appears in 1 contract
Conditions to Purchaser’s Obligations. The obligation of Purchaser to consummate the transactions contemplated by this Agreement Contemplated Transactions is subject to the satisfaction of the following conditions as of on or before the Closing Date:Date (provided, that any condition specified in this Section 8.2 may be waived in writing by Purchaser):
(a) The each of the representations and warranties set forth in Sections 3 and 4 of this Agreement Article 5 shall be true and correct in all material respects (except for those representations and warranties which are qualified by materiality, which shall be true and correct in all respects) when as if made and at and as of the Closing Date as though then made (other than those except that such representations and warranties which address matters only that are made as of a particular date, which shall have been specific date need only be true and correct only as of such date)) in all material respects;
(b) The Company and the Sellers Seller shall have made each of the deliveries required to be made by the Seller at the Closing pursuant to Section 3.2;
(c) the Seller shall have performed and complied in all material respects all of the covenants and agreements required to be performed by them it under this Agreement at or prior to the Closing;
(cd) No event no law or order shall have occurred since been enacted or entered into after the date of this Agreement hereof that would constitute or would reasonably be expected to constitute a Material Adverse Effectprevent the consummation of the purchase of the Contemplated Transactions;
(de) each of the lessors under each of the Real Property Leases shall (i) have delivered its written consent to the Contemplated Transactions pursuant to one or more instruments in form and substance reasonably acceptable to the Purchaser, and (ii) to the extent required by Purchaser, have entered into WPP Replacement Leases effective as of the Closing;
(f) Purchaser shall have obtained the Committed Financing;
(e) Each Seller shall have delivered any consent from KeyBank National Association required to Purchaser the documents of assignment with respect to the Units held be obtained under that certain Amended and Restated Credit and Security Agreement dated October 29, 2021, by such Seller;
(f) The Company shall have delivered to Purchaser each of the following:
(i) a certificate of the Company, dated the Closing Date, stating that the preconditions specified in Sections 2.2(a) and 2.2(b) above have been satisfied;
(ii) a copy of the Escrow Agreement, duly executed by the Seller Representative;
(iii) a copy of the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units of the Company have been cancelled and are no longer issued or outstanding, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Companybetween KeyBank National Association, the Seller Representative and the Sellers shall have obtained and delivered other lenders from time to Purchaser those consents and waivers of any third time party set forth on Section 2.2(f)(v) of the Disclosure Schedulethereto, and the foregoing shall be Parent, Purchaser and certain of their Affiliates, as amended, in full force and effect;
(vi) at least three (3) business days prior order to Closing, allow Purchaser to consummate the Contemplated Transactions without resulting in a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formedbreach or default thereunder; and
(ix) certified copies of (Ag) the organizational documents of Contract Mining Agreement shall be in form and substance reasonably acceptable to the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement and the other Transaction Documents, as duly adopted by the Company’s board of managers and in full force and effectPurchaser.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ramaco Resources, Inc.)
Conditions to Purchaser’s Obligations. The obligation obligations of ------------------------------------- Purchaser to consummate the transactions contemplated by this Agreement is are subject to the satisfaction fulfillment of each of the following conditions conditions:
(a) There shall be furnished to the Purchaser a certificate executed by the Seller that the representations and warranties of the Seller, contained in this Agreement, are true and correct at the date hereof and will be true and correct on and as of the Closing Date:
(a) The representations and warranties set forth in Sections 3 and 4 of this Agreement shall be true and correct in all material respects (except for those representations and warranties which are qualified by materiality, which shall be true and correct in all respects) when made and at and as of the Closing Date as though then made (other than those representations and warranties which address matters only as of a particular date, which shall have been true and correct only as of such date);.
(b) The Company Purchaser shall have received the written opinion, dated the Closing Date, from Xxxxx, Xxxxxxxxx & Xxxxxx, P.C., counsel for Seller, to the effect that (i) the Corporation has been duly incorporated and is existing as a corporation in good standing under the laws of the State of New York; (ii) the Corporation is legally authorized to carry on its business under the laws of the State of New York; (iii) to the best of its knowledge, the Shares have been duly issued and are fully paid and nonassessable; (iv) to the best of its knowledge, Seller has full power and authority to sell, assign, or transfer such Shares, and delivery of such Shares to Purchaser will transfer to Purchaser title thereto free and clear of all liens, pledges, encumbrances, security interests, or claims; and (v) this Agreement and any and all documents and instruments executed and delivered in connection therewith, have been duly executed and delivered by Seller and the Sellers shall have performed Corporation is a binding obligations of Seller and complied in all material respects all of the covenants and agreements required Corporation according to be performed by them under this Agreement at or prior to the Closing;their terms.
(c) No event There shall have occurred since the date of this Agreement that would constitute or would reasonably be expected to constitute a Material Adverse Effect;
(d) Purchaser shall have obtained the Committed Financing;
(e) Each Seller shall have executed and delivered to Purchaser the documents of assignment with respect to the Units held by such Seller;
(f) The Company shall have delivered to Purchaser each of the following:
(i) Employment Agreement, substantially in the form of Exhibit "A", annexed hereto and made a certificate of part hereof (the Company, dated the Closing Date, stating that the preconditions specified in Sections 2.2(a) and 2.2(b) above have been satisfied"Employment Agreement");
(ii) a copy of the Escrow Option Agreement, duly executed by the Seller Representative;
(iii) a copy of the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth substantially in the Consideration Allocation Scheduleform of Exhibit "B", annexed hereto and made a part hereof (the "Option Agreement");
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units of the Company have been cancelled and are no longer issued or outstanding, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formed; and
(ix) certified copies of (A) the organizational documents of the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement and the other Transaction Documents, as duly adopted by the Company’s board of managers and in full force and effect.
Appears in 1 contract
Samples: Stock Purchase Agreement (Touchstone Applied Science Associates Inc /Ny/)
Conditions to Purchaser’s Obligations. The obligation of Purchaser to consummate the transactions transaction contemplated by this Agreement hereby is subject to the satisfaction fulfillment of all of the following conditions as of on or prior to the Closing Date, upon the non-fulfillment of any of which this Agreement may, at Purchaser's option, be terminated pursuant to and with the effect set forth in Article XI:
(a) The There shall be no Material Adverse Change in the Seller's representations and warranties set forth in Sections 3 with respect to the value of the Purchased Assets, and 4 of this Agreement each and every other representation and warranty made by Seller shall be true and correct in all material respects (except for those representations and warranties which are qualified by materiality, which shall be true and correct in all respects) when as if originally made and at on and as of the Closing Date as though then made (other than those representations and warranties which address matters only as of a particular date, which shall have been true and correct only as of such date);Date.
(b) The Company and the Sellers shall have performed and complied in all material respects all All obligations of the covenants and agreements required Seller to be performed by them under this Agreement hereunder through, and including on, the Closing Date (including, without limitation, all obligations which Seller would be required to perform at or prior to the Closing;Closing if the transaction contemplated hereby was consummated) shall have been fully performed.
(c) No event suit, proceeding or investigation shall have occurred been commenced or threatened by any governmental, regulatory or administrative authority on any grounds to restrain, enjoin or hinder the consummation of the transaction contemplated hereby or the right of the Purchaser to own the Purchased Assets or operate the Division Business (and no order, judgment, decree or ruling shall be in effect with respect to any such suit proceeding or investigation).
(d) Seller shall have delivered to Purchaser (i) the written opinion of Quarles & Brady Streich Lang, LLP, counsel to Seller, addressed to Puxxxxxxx, dxxxx xx xx xxe Xxxsing Date, in substantially the form of Exhibit 6.2(d)(i) attached hereto; and (ii) the written opinion of Stikeman Elliott, counsel to Seller, addressed to Purchaser, dated as of the Closing Date, in substantially the form of Exhibit 6.2(d)(ii) attached hereto; and (iii) the written opinion of Richards, Layton and Finger, counsel to the Seller, addressed to Purcxxxxx, xxxxx xx of the Closing Date, in substantially the form annexed hereto as Exhibit 6.2(d)(iii).
(e) Purchaser and Seller shall have executed the Transition Services Agreement.
(f) The Seller and Guarantor shall have executed the Guaranty.
(g) The Lockbox Agreement shall have been executed by all parties thereto.
(h) The Sublease shall have been executed by Purchaser and Seller.
(i) The Seller shall have obtained the Material Consents and the Purchaser shall have received copies of such consents to assignment in form and substance reasonably satisfactory to the Purchaser.
(j) The Purchaser and Seller shall have delivered the Allocation Schedules.
(k) The Seller have executed an election as to the sale of the Purchased Receivables under Section 22 of the Income Tax Act (Canada) designating in such election the applicable portion of the Purchase Price paid by the Purchaser for the Purchased Receivables.
(l) NCFE (as defined below) or its Affiliates shall be satisfied that it is able to provide financing to Purchaser pursuant to that certain commitment letter dated May 2, 2001; and Purchaser shall have received such financing at or immediately prior to the Closing.
(m) There shall not have been any change since the date of this Agreement which has resulted in a Material Adverse Effect and no event has occurred or circumstance exists that would constitute or would reasonably be expected to constitute may result in such a Material Adverse Effect;.
(dn) Purchaser shall have obtained the Committed Financing;
(e) Each All actions to be taken by Seller shall have delivered to Purchaser the documents of assignment in connection with respect to the Units held by such Seller;
(f) The Company shall have delivered to Purchaser each of the following:
(i) a certificate of the Company, dated the Closing Date, stating that the preconditions specified in Sections 2.2(a) and 2.2(b) above have been satisfied;
(ii) a copy of the Escrow Agreement, duly executed by the Seller Representative;
(iii) a copy of the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units of the Company have been cancelled and are no longer issued or outstanding, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formed; and
(ix) certified copies of (A) the organizational documents of the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all the transactions contemplated by this Agreement hereby and all certificates, opinions, instruments and other documents of Seller required to effect the other Transaction Documents, as duly adopted by transactions contemplated hereby will be reasonably satisfactory in form and substance to the Company’s board of managers and in full force and effectPurchaser.
Appears in 1 contract
Conditions to Purchaser’s Obligations. The obligation obligations -------------------------------------- of Purchaser to consummate the transactions contemplated by this Agreement is are subject to the satisfaction fulfillment of each of the following conditions conditions:
(a) There shall be furnished to the Purchaser a certificate executed by the Sellers and the Corporation that the representations and warranties of the Sellers and the Corporation, contained in this Agreement, are true and correct at the date hereof and will be true and correct on and as of the Closing Date:
(a) The representations and warranties set forth in Sections 3 and 4 of this Agreement shall be true and correct in all material respects (except for those representations and warranties which are qualified by materiality, which shall be true and correct in all respects) when made and at and as of the Closing Date as though then made (other than those representations and warranties which address matters only as of a particular date, which shall have been true and correct only as of such date);.
(b) The Company Purchaser shall have received the written opinion, dated the Closing Date, from Assiran, Ellis, & Devlin, counsel for Sellers and the Sellers shall have performed and complied Corporation, in all material respects all of the covenants and agreements required to be performed by them under this Agreement at or prior to the Closingform axxxxxx hereto as Exhibit "A";
(c) No event There shall have occurred since the date of this Agreement that would constitute or would reasonably be expected to constitute a Material Adverse Effect;
(d) Purchaser shall have obtained the Committed Financing;
(e) Each Seller shall have executed and delivered to Purchaser the documents of assignment with respect to the Units held by such Seller;
(f) The Company shall have delivered to Purchaser each of the following:
(i) DeVito Employment Agreement, substantially in the form of Exhixxx "X", annexed hereto and made a certificate of part hereof (the Company, dated the Closing Date, stating that the preconditions specified in Sections 2.2(a) and 2.2(b) above have been satisfied"Employment Agreement");
(ii) a copy of the Escrow Zusman Employment Agreement, duly executed by substantially in the Seller Representativeform of Exhixxx "X", annexed hereto and made a part hereof (the "Employment Agreement");
(iii) a copy of the Investors Rights DeVito Option Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth substantially in the Consideration Allocation Scheduleform of Exhibit "X", xnnexed hereto and made a part hereof (the "Option Agreement");; and
(iv) evidence reasonably Zusman Option Agreement, substantially in the form of Exhibit "X", xnnexed hereto and made a part hereof (the "Option Agreement").
(vi) Such other ancillary documents as counsel for the parties deem necessary or appropriate to consummate the transactions contemplated hereunder and hereby.
(d) Each Seller shall have furnished to the Purchaser a representation in form satisfactory to Purchaser the Purchaser's counsel that (A) all Class B Units the Seller is acquiring the shares of the Company have been cancelled Purchaser for its own account for investment and are no longer issued not with a view for the sale or outstandingdistribution thereof, that it understands the nature and effect of such representations, and (B) the Company and its Subsidiaries shall that it will not have sell or transfer any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
shares so acquired by it unless (vi) a registration statement under the CompanySecurities Act of 1933 shall be in effect with respect thereto, the Seller Representative and the Sellers or (ii) it shall have received written notice from the Securities and Exchange Commission that such sale or transfer may be made without registration under said Act, or (iii) it has obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedulea legal opinion from counsel satisfactory to Purchaser, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each that registration under such entity was formed; and
(ix) certified copies of (A) the organizational documents of the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement and the other Transaction Documents, as duly adopted by the Company’s board of managers and in full force and effectAct is not required.
Appears in 1 contract
Samples: Stock Purchase Agreement (Touchstone Applied Science Associates Inc /Ny/)
Conditions to Purchaser’s Obligations. The obligation of Purchaser Purchaser’s obligations to consummate its purchase of the transactions contemplated by Servicing Rights and the Advance Receivables pursuant to this Agreement is and otherwise perform its obligations under this Agreement are subject to the satisfaction or waiver of the following conditions as of on or prior to the date specified below or, if not specified, on or prior to Closing Date:
(a) The Seller shall have performed in all material respects all of its covenants and agreements contained herein which are required to be performed by it;
(b) All of the representations and warranties set forth of the Seller contained in Sections 3 and 4 Section 3.01 of this Agreement shall be true and correct in all material respects (except for those representations and warranties which are qualified by materiality, which shall be true and correct in all respects) when made and at and as of the Closing Date as though then made (other than those representations and warranties which address matters only as of a particular date, which shall have been true and correct only as of such date);
(b) The Company and the Sellers shall have performed and complied in all material respects all of the covenants and agreements required to be performed by them under this Agreement at or prior to the Closing;
(c) No event The Purchaser shall have occurred since received in escrow, or the date Purchaser’s attorneys shall have received in escrow, each of the documents specified in this Agreement that would constitute or would reasonably be expected to constitute a Material Adverse EffectSection 2.03, duly executed by all signatories other than the Purchaser, as required by the respective terms thereof;
(d) The Purchaser shall have obtained received copies of the Committed FinancingMajor Consent Letters and all other authorizations and approvals required under the terms of each Securitization Agreement, each in form and substance reasonably satisfactory to the Purchaser;
(e) Each Seller The Purchaser shall have delivered received copies of the Securitization Agreement Amendments, executed by all parties thereto, as well as copies of all certificates and legal opinions required by the Securitization Agreements in connection therewith, and on which the Purchaser shall be permitted to Purchaser the documents of assignment with respect to the Units held by such Sellerrely;
(f) The Company Purchaser shall have received any and all other customary documents as the Purchaser shall have reasonably determined to be necessary or desirable to effectuate the intent and purposes of this Agreement and to consummate the transactions contemplated hereby;
(g) The Seller shall have delivered to the Purchaser each an Officer’s Certificate of the following:Seller, in form and substance satisfactory to the Purchaser, certifying (i) as to the validity and collectibility of all Unrecovered Advances to be reimbursed hereunder and (ii) that the representation and warranty in Section 3.01(h) is true and correct;
(h) Servicing of the Mortgage Loans shall have been transferred to the Purchaser by the Seller in accordance with the Servicing Transfer Procedures and this Agreement;
(i) Legal opinions, substantially in the form of Exhibit 3 hereto, shall be delivered to the Purchaser, the Securities Insurers, and the Trustees from outside counsel to the Seller;
(j) The Seller shall provide to the Purchaser, at its sole expense and in form and substance reasonably satisfactory to the Purchaser, (i) a certificate of valuation letter from Mortgage Industry Advisory Corporation, or another independent third party valuation firm specializing in providing valuations for the Companyresidential mortgage industry reasonably satisfactory to the Purchaser, dated to the Closing Date, stating effect that the preconditions specified in Sections 2.2(a) Purchase Price represents a fair value for the Servicing Rights being purchased hereunder and 2.2(b) above have been satisfied;
(ii) a copy letter from Deutsche Bank Securities, Inc. (“Seller’s Advisor”), addressed to the Purchaser, detailing the procedures by which the Seller and Seller’s Advisor marketed the Servicing Rights being purchased hereunder, a draft of which is attached hereto as Exhibit 21. The final letter will include a range of non-binding values received in connection with the bid process;
(k) A duly executed Assignment and Conveyance Agreement relating the sale and transfer of the Escrow Agreement, duly executed Servicing Rights and the Advance Receivables by the Seller Representativeto the Purchaser shall have been delivered to the Purchaser;
(iiil) a copy of All fees (including reasonable attorneys’ fees and expenses) owed to the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of Trustees under the Equity Payment or Warrants out of related Securitization Agreements and incurred in connection with the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units of the Company transactions contemplated hereunder shall have been cancelled and are no longer issued or outstanding, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries paid as of the most recent practicable Servicing Transfer Date, or provision for such payments at a future date from shall have been agreed to by the Office of the Secretary of State of the state in which each such entity was formedTrustees; and
(ixm) certified copies The Seller shall have delivered to the Purchaser all powers of (A) attorney reasonably necessary in order for the organizational documents Purchaser to service the Mortgage Loans pursuant to the Securitization Agreements, including but not limited to the management and liquidation of REO properties. In the event any of the Companyconditions set forth in this Section 2.03 are not satisfactory to the Purchaser in all material respects, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of Purchaser shall be entitled to terminate this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement and the other Transaction Documents, as duly adopted by the Company’s board of managers and its obligations hereunder in full force and effectaccordance with Section 6.01.
Appears in 1 contract
Samples: Servicing Rights Transfer Agreement (Novastar Financial Inc)
Conditions to Purchaser’s Obligations. The obligation of Purchaser to consummate the transactions transaction contemplated by this Agreement hereby is subject to the satisfaction fulfillment of all of the following conditions as of on or prior to the Closing Date, upon the non-fulfillment of any of which this Agreement may, at Purchaser's option, be terminated pursuant to and with the effect set forth in Article XI:
(a) The There shall be no Material Adverse Change in the Seller's representations and warranties set forth in Sections 3 with respect to the value of the Purchased Assets, and 4 of this Agreement each and every other representation and warranty made by Seller shall be true and correct in all material respects (except for those representations and warranties which are qualified by materiality, which shall be true and correct in all respects) when as if originally made and at on and as of the Closing Date as though then made (other than those representations and warranties which address matters only as of a particular date, which shall have been true and correct only as of such date);Date.
(b) The Company and the Sellers shall have performed and complied in all material respects all All obligations of the covenants and agreements required Seller to be performed by them under this Agreement hereunder through, and including on, the Closing Date (including, without limitation, all obligations which Seller would be required to perform at or prior to the Closing;Closing if the transaction contemplated hereby was consummated) shall have been fully performed.
(c) No event suit, proceeding or investigation shall have occurred been commenced or threatened by any governmental, regulatory or administrative authority on any grounds to restrain, enjoin or hinder the consummation of the transaction contemplated hereby or the right of the Purchaser to own the Purchased Assets or operate the Division Business (and no order, judgment, decree or ruling shall be in effect with respect to any such suit proceeding or investigation).
(d) Seller shall have delivered to Purchaser (i) the written opinion of Quarles & Brady Streich Lang, LLP, counsel to Seller, addressed to Xxxxxxxer, xxxxx xx xx txx Xlosing Date, in substantially the form of Exhibit 6.2(d)(i) attached hereto; and (ii) the written opinion of Stikeman Elliott, counsel to Seller, addressed to Purchaser, dated as of the Closing Date, in substantially the form of Exhibit 6.2(d)(ii) attached hereto; and (iii) the written opinion of Richards, Layton and Finger, counsel to the Seller, addressed to Puxxxxxxx, xxxxx xs of the Closing Date, in substantially the form annexed hereto as Exhibit 6.2(d)(iii).
(e) Purchaser and Seller shall have executed the Transition Services Agreement.
(f) The Seller and Guarantor shall have executed the Guaranty.
(g) The Lockbox Agreement shall have been executed by all parties thereto.
(h) The Sublease shall have been executed by Purchaser and Seller.
(i) The Seller shall have obtained the Material Consents and the Purchaser shall have received copies of such consents to assignment in form and substance reasonably satisfactory to the Purchaser.
(j) The Purchaser and Seller shall have delivered the Allocation Schedules.
(k) The Seller have executed an election as to the sale of the Purchased Receivables under Section 22 of the Income Tax Act (Canada) designating in such election the applicable portion of the Purchase Price paid by the Purchaser for the Purchased Receivables.
(l) NCFE (as defined below) or its Affiliates shall be satisfied that it is able to provide financing to Purchaser pursuant to that certain commitment letter dated May 2, 2001; and Purchaser shall have received such financing at or immediately prior to the Closing.
(m) There shall not have been any change since the date of this Agreement which has resulted in a Material Adverse Effect and no event has occurred or circumstance exists that would constitute or would reasonably be expected to constitute may result in such a Material Adverse Effect;.
(dn) Purchaser shall have obtained the Committed Financing;
(e) Each All actions to be taken by Seller shall have delivered to Purchaser the documents of assignment in connection with respect to the Units held by such Seller;
(f) The Company shall have delivered to Purchaser each of the following:
(i) a certificate of the Company, dated the Closing Date, stating that the preconditions specified in Sections 2.2(a) and 2.2(b) above have been satisfied;
(ii) a copy of the Escrow Agreement, duly executed by the Seller Representative;
(iii) a copy of the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units of the Company have been cancelled and are no longer issued or outstanding, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formed; and
(ix) certified copies of (A) the organizational documents of the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all the transactions contemplated by this Agreement hereby and all certificates, opinions, instruments and other documents of Seller required to effect the other Transaction Documents, as duly adopted by transactions contemplated hereby will be reasonably satisfactory in form and substance to the Company’s board of managers and in full force and effectPurchaser.
Appears in 1 contract
Conditions to Purchaser’s Obligations. The obligation of Purchaser Purchasers to consummate close the transactions contemplated by this Agreement is subject to the satisfaction fulfillment of all of the following conditions at and as of the Closing DateClosing, upon the non-fulfillment of any of which this Agreement may, at Purchaser Representative’s option, be terminated pursuant to and with the effect set forth in Article XI:
(a) The the representations and warranties of Sellers set forth in Sections 3 and 4 of this Agreement shall Article III will be true and correct in all material respects (except for those representations at and warranties which are qualified by materiality, which shall be true and correct in all respects) when made as of the date of this Agreement and at and as of the Closing Date as though then made (other than those at and as of the Closing with the same force and effect as though the Closing Date was substituted for the date of this Agreement throughout such representations and warranties which address matters only (except, in each case, to the extent such representations and warranties speak as of a particular certain date, in which shall have been case such representation and warranty will be true and correct only as of such date);
, except (bi) The Company for changes contemplated by this Agreement and (ii) where the Sellers shall have performed and complied in all material respects all failure of the covenants and agreements required such representation or warranty to be performed by them under this Agreement at or prior to the Closing;
(c) No event shall true and correct, as of such dates, would not have occurred since the date of this Agreement that would constitute or would reasonably be expected to constitute a Material Adverse Effect;
(db) Purchaser shall have obtained the Committed Financing;
(e) Each Seller shall have delivered all covenants and obligations of Sellers and Purchased Companies to Purchaser the documents of assignment be performed or complied with respect to the Units held by such Seller;
(f) The Company shall have delivered to Purchaser each of the following:
(i) a certificate of the Company, dated hereunder through and including the Closing Date, stating (including all obligations that Sellers and Purchased Companies would be required to perform at the preconditions specified in Sections 2.2(a) and 2.2(b) above have been satisfied;
(ii) a copy of Closing if the Escrow Agreement, duly executed by the Seller Representative;
(iii) a copy of the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units of the Company have been cancelled and are no longer issued or outstanding, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formed; and
(ix) certified copies of (A) the organizational documents of the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement were consummated) will have been fully performed or complied with in all material respects;
(c) Sellers will have received all Closing Consents and written evidence thereof satisfactory to Purchaser Representative will have been provided to Purchaser Representative; and
(d) Seller Representative (or the other Transaction Documents, as duly adopted applicable Seller or Purchased Company) shall have made all deliveries required to be made by the Company’s board of managers and it at or prior to Closing in full force and effectaccordance with Section 2.10(b).
Appears in 1 contract
Samples: Asset and Equity Purchase Agreement (Gsi Group Inc)
Conditions to Purchaser’s Obligations. 4.1.1 The obligation of Purchaser to consummate purchase and accept the transactions contemplated by this Agreement Aircraft from Seller hereunder is subject to the fulfillment to the satisfaction of Purchaser on or prior to the Delivery Date of the conditions precedent set out in Schedule 4 to the Aircraft Lease Agreement (other than those conditions precedent set out therein that can only be fulfilled upon payment by Purchaser of the Net Amount Payable) and of the following conditions as of the Closing Dateprecedent:
(a) The representations the Aircraft Lease Agreement, the ALST, the Acceptance Certificate, the Mortgage Release and warranties set forth a Title Warranty Letter substantially in Sections 3 and 4 the form of this Agreement shall be true and correct in all material respects (except for those representations and warranties which are qualified by materiality, which shall be true and correct in all respects) when made and at and as of the Closing Date as though then made (other than those representations and warranties which address matters only as of a particular date, which Exhibit B hereto shall have been true executed and correct only as delivered, or Purchaser shall be satisfied (acting reasonably) that such documents will be executed and delivered promptly upon payment by Purchaser of such date)the Net Amount Payable;
(b) The Company the obligations under the Aircraft Lease Agreement of:
(i) LATAM (as Lessee) to accept delivery of the Aircraft and lease the Sellers Aircraft from Purchaser (as Lessor) thereunder; and
(ii) Purchaser (as Lessor) to deliver and lease the Aircraft to LATAM (as Lessee) thereunder, shall have performed and complied in all material respects all become conditional only on transfer of the covenants and agreements required to be performed by them under this Agreement at or prior title to the Closing;Aircraft to Purchaser, on the Delivery Date; LATAM MSN [_____] -3-
(c) No event the Aircraft shall have occurred since be free of all Liens other than Permitted Liens, any rights created under this Purchase Agreement and the date of this possessory rights conferred by the Aircraft Lease Agreement that would constitute or would reasonably be expected to constitute a Material Adverse Effectat delivery;
(d) Purchaser shall have obtained the Committed Financingrepresentations and warranties of LATAM under Section 5.2 of this Purchase Agreement are correct as at the Delivery Date as if made on the Delivery Date with reference to the facts and circumstances then existing;
(e) Each Seller shall have delivered Purchaser is satisfied that the Delivery Location, and the arrangements described in Section 2.3 of this Purchase Agreement, do not give rise to Purchaser the documents of assignment with respect any Taxes other than Taxes which it or LATAM has agreed to the Units held by such Sellerbear;
(f) The Company Purchaser or its representatives shall have delivered to Purchaser each completed a satisfactory inspection of the following:
Aircraft and Aircraft Documentation (ithe “Inspection”) a certificate on or prior to February 28, 2014, and no Event of Loss, or damage of or to the Aircraft or any part thereof for which the cost of correction or repairs would exceed US$1,000,000, shall have occurred subsequent to the completion of the Company, dated the Closing Date, stating that the preconditions specified in Sections 2.2(a) and 2.2(b) above have been satisfiedInspection;
(iig) Purchaser shall have received a copy of the Escrow Agreementsecretary’s or officer’s certificate from LATAM addressing, duly executed by the Seller Representative;
(iii) a copy of the Investors Rights Agreementinter alia, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably satisfactory LATAM’s power and authority to Purchaser that (A) all Class B Units of the Company have been cancelled enter into this Purchase Agreement and are no longer issued or outstandingperform its obligations hereunder, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Companyattaching, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closinginter alia, a copy of LATAM’s constitutional documents and the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing corporate approvals required by LATAM for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formedtransactions contemplated hereby; and
(ixh) certified copies Purchaser shall have received a legal opinion of LATAM’s in-house counsel.
4.1.2 The conditions referred to in Section 4.1.1 of this Purchase Agreement are for the sole benefit of Purchaser and may be waived or deferred in whole or in part and with or without conditions by Purchaser. If any of those conditions are not satisfied on the Delivery Date and Purchaser (Ain its absolute discretion) nonetheless agrees to purchase the organizational documents Aircraft under this Purchase Agreement, LATAM will ensure that those conditions are fulfilled within 30 days after the Delivery Date (or such later date as may be agreed in writing by Purchaser and LATAM) and Purchaser may treat as an “Event of Default” under the Aircraft Lease Agreement the failure of LATAM to do so.
4.1.3 Purchaser undertakes to notify LATAM as soon as reasonably practicable following completion of the CompanyInspection, and in any case by February 28, 2014, as true to whether the Inspection was satisfactory to Purchaser and complete and whether the condition precedent set out in full force and effect, and Section 4.1.1(f) (Bto the extent relating to the Inspection) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement and the other Transaction Documents, as duly adopted by the Company’s board of managers and in full force and effecthas been satisfied.
Appears in 1 contract
Samples: Purchase Agreement (Aircastle LTD)
Conditions to Purchaser’s Obligations. The obligation obligations of Purchaser to consummate the transactions contemplated by under this Agreement is to be performed on the Closing Date are subject to either the satisfaction or waiver by Purchaser of each of the following conditions as of the Closing Dateconditions:
(a) The All of the representations and warranties set forth of Seller specified in Sections 3 and 4 Section 8 of this Agreement shall be are true and correct in all material respects (except for those representations and warranties which are qualified by materiality, which shall be true and correct in all respects) when made and at on and as of the Closing Date as though then made (other than those representations and warranties which address matters only as of a particular date, which shall have been true and correct only as of such date)Date;
(b) The Company Seller shall have delivered all of the documents and the Sellers other items required pursuant to Section 7.3 and shall have performed all other covenants, undertakings and obligations, and complied in with all material respects all of the covenants and agreements conditions required by this Agreement, to be performed or complied with by them under this Agreement Seller at or prior to the Closing;
(c) No event Title Company shall be unconditionally committed to issue an Owner’s Title Policy in the form of, and subject only to the exceptions set forth in, the pro-forma owner’s title policy attached hereto as Exhibit J (“Pro-Forma Policy”). If Title Company issues a supplemental title report for the Property, adding new exceptions not shown on the Pro-Forma Policy and not caused by Purchaser, Title Company shall deliver to Purchaser and Seller a copy of such supplemental report setting forth any such new exceptions not previously included in the Pro Forma Title Policy and not caused by Purchaser, together with copies of any new underlying documents listed therein (“Supplemental Report”). Purchaser shall have occurred since three (3) Business Days after receipt of any Supplemental Report to deliver to Seller a written notice (“Supplemental Title Notice”) disapproving any such item. If Seller does not receive a Supplemental Title Notice from Purchaser within such three (3) Business Day period, Purchaser shall be deemed to have approved such Supplemental Report. If Purchaser delivers to Seller a Supplemental Title Notice disapproving any new exceptions in the Supplemental Report (each a “Title Objection”), Seller shall have three (3) Business Days after receipt of Purchaser’s Supplemental Title Notice to deliver to Purchaser a written response (“Seller’s Supplemental Response”) identifying which of such Title Objections Seller shall undertake to cure or not cure. If Seller does not deliver a Seller’s Supplemental Response within said three (3) Business Day period, Seller shall be deemed to have elected not to eliminate or otherwise cure any such Title Objections. If Seller elects not to eliminate or otherwise cure a Title Objection in said Purchaser’s Supplemental Title Notice, Purchaser shall have until the date which is five (5) Business Days after Purchaser delivered the Supplemental Title Notice to notify Seller and Escrow Agent, in writing, of Purchaser’s election to either waive the objection or terminate this Agreement and obtain a refund of the Xxxxxxx Money. If Seller has not received written notice from Purchaser by said date, said failure shall be deemed to be Purchaser’s approval of Seller’s Supplemental Response. Notwithstanding the foregoing, Purchaser shall be deemed to have objected to any item in a Supplemental Report which is based on delinquent taxes or delinquent real property assessments or any mortgage, deed of trust, mechanic’s lien or similar monetary encumbrance, all of which encumbrances (other than any such matters that would are caused by Purchaser) shall automatically constitute Title Objections. If Seller elects to cure any Title Objection, such cure may be by removal or would reasonably affirmative insurance and such removal or insurance may be expected effected by payment, bonding, indemnity or otherwise. Notwithstanding the foregoing, if either Purchaser or Seller has scheduled the Closing Date pursuant to constitute Section 7.1 prior to receipt of a Material Adverse Effect;Supplemental Report, the Closing Date shall be extended to the extent necessary in order to comply with the response periods set forth above (but without any increase in the Purchase Price with respect to such extension).
(d) Purchaser No casualty or condemnation shall have obtained occurred pursuant to which Purchaser has elected to terminate the Committed Financing;Agreement in accordance with Section 15 below; and
(e) Each No petition has been filed by or then pending against Seller shall have delivered to Purchaser under the documents of assignment with respect to the Units held by such Seller;
(f) The Company shall have delivered to Purchaser each of the following:
(i) a certificate of the CompanyFederal Bankruptcy Code or any similar State or Federal Law, dated the Closing Date, stating that the preconditions specified in Sections 2.2(a) and 2.2(b) above have been satisfied;
(ii) a copy of the Escrow Agreement, duly executed by the Seller Representative;
(iii) a copy of the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment whether now or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units of the Company have been cancelled and are no longer issued or outstanding, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formed; and
(ix) certified copies of (A) the organizational documents of the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement and the other Transaction Documents, as duly adopted by the Company’s board of managers and in full force and effecthereafter existing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Conditions to Purchaser’s Obligations. (a) The obligation of Purchaser to consummate deliver the transactions contemplated by this Agreement Firm Purchase Price on the Firm Payment Date is subject to the satisfaction of the following conditions as of the Closing Dateconditions:
(ai) The the purchase by the Underwriters of the Underwritten DECS pursuant to the Underwriting Agreement shall have been consummated as contemplated under the Underwriting Agreement;
(ii) the representations and warranties set forth of the Seller contained in Sections 3 and 4 of this Agreement Article II hereof shall be true and correct in all material respects as of the Firm Payment Date;
(except for those iii) the Collateral Agreement shall have been executed by the Seller and the delivery of the Collateral thereunder shall have been made; and
(iv) the Reimbursement Agreement shall have been executed by the Seller.
(b) The obligation of Purchaser to deliver the Additional Purchase Price on the Option Closing Date is subject to the satisfaction of the following conditions:
(i) the purchase by the Underwriters of the Additional DECS pursuant to the Underwriting Agreement shall have been consummated as contemplated under the Underwriting Agreement;
(ii) the representations and warranties which are qualified by materiality, which of the Seller contained in Article II hereof shall be true and correct in all respects) when made and at and as of the Option Closing Date as though then made (other than those representations and warranties which address matters only as of a particular except to the extent that they refer to an earlier date, in which case they shall have been be true and correct only as of such earlier date);
(b) The Company and the Sellers shall have performed and complied in all material respects all of the covenants and agreements required to be performed by them under this Agreement at or prior to the Closing;
(c) No event shall have occurred since the date of this Agreement that would constitute or would reasonably be expected to constitute a Material Adverse Effect;
(d) Purchaser shall have obtained the Committed Financing;
(e) Each Seller shall have delivered to Purchaser the documents of assignment with respect to the Units held by such Seller;
(f) The Company shall have delivered to Purchaser each of the following:
(i) a certificate of the Company, dated the Closing Date, stating that the preconditions specified in Sections 2.2(a) and 2.2(b) above have been satisfied;
(ii) a copy of the Escrow Agreement, duly executed by the Seller Representative;; and
(iii) a copy the delivery of any additional Collateral under the Investors Rights Agreement, duly executed by such Sellers as receive any Shares out of the Equity Payment or Warrants out of the Warrant Payment (as set forth in the Consideration Allocation Schedule);
(iv) evidence reasonably satisfactory to Purchaser that (A) all Class B Units of the Company Collateral Agreement shall have been cancelled and are no longer issued or outstanding, and (B) the Company and its Subsidiaries shall not have any continuing obligations under any Related Party Agreement other than such agreements set forth on Section 4.17(b) of the Disclosure Schedule;
(v) the Company, the Seller Representative and the Sellers shall have obtained and delivered to Purchaser those consents and waivers of any third party set forth on Section 2.2(f)(v) of the Disclosure Schedule, and the foregoing shall be in full force and effect;
(vi) at least three (3) business days prior to Closing, a copy of the Consideration Allocation Schedule;
(vii) at least three (3) business days prior to Closing, the Unqualified Opinions;
(viii) certificates of good standing for the Company and each of its Subsidiaries as of the most recent practicable date from the Office of the Secretary of State of the state in which each such entity was formed; and
(ix) certified copies of (A) the organizational documents of the Company, as true and complete and in full force and effect, and (B) the resolutions duly adopted by the Company’s board of managers authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents, and the consummation of all transactions contemplated by this Agreement and the other Transaction Documents, as duly adopted by the Company’s board of managers and in full force and effectmade.
Appears in 1 contract
