Conditions to the Obligations of the Parent Parties. The obligation of the Parent Parties to consummate the Mergers is subject to the satisfaction, or waiver by Parent, at or prior to Closing, of the following conditions: (a) (i) the representations and warranties set forth in Section 3.1 (Organization and Good Standing; Subsidiaries), Section 3.3 (Capitalization), Section 3.16 (Authority; Binding Nature of Agreement), Section 3.17 (Vote Required), Section 3.21 (Brokers) and Section 3.23 (Takeover Statutes) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date, as though made as of the Closing Date and (ii) each of the other representations and warranties of the Company contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date, as though made as of the Closing Date, except (A) in each case, representations and warranties that are made as of a specific date shall be true and correct only on and as of such date, and (B) in the case of this clause (ii), where the failure of such representations or warranties to be true and correct (except in the case of Section 3.5(b), without giving effect to any materiality or “Company Material Adverse Effect” qualifications set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (b) the Company Parties shall have performed in all material respects all obligations required to be performed by them under this Agreement on or prior to the Closing Date; (c) since the date hereof, there shall not have occurred any Company Material Adverse Effect; (d) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied; (e) Parent shall have received a tax opinion of DLA Piper (or such other nationally recognized REIT counsel as may be reasonably acceptable to Parent), substantially in the form of Exhibit E to this Agreement, dated as of the Closing Date (which such opinion shall be subject to customary assumptions, qualifications and representations, including representations made by the Acquired Companies), to the effect that beginning with its taxable year ended December 31, 2002 and until the Closing, the Company has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code (which opinion shall be based upon the representation letter described in Section 5.17(g)(ii)). (f) Parent shall have received the written opinion of Hunton (or other counsel as may be reasonably acceptable to Parent and the Company), substantially in the form of Exhibit F to this Agreement, dated as of the Closing Date, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Company Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel shall rely upon the tax representation letters described in Section 5.17(g)(iii) and Section 5.17(h)(iii). The condition set forth in this Section 6.2(f) shall not be waivable after receipt of the Parent Shareholder Approval, unless further shareholder approval is obtained with appropriate disclosure.
Appears in 2 contracts
Samples: Merger Agreement (Pebblebrook Hotel Trust), Merger Agreement (LaSalle Hotel Properties)
Conditions to the Obligations of the Parent Parties. The obligation of the Parent Parties to consummate effect the Mergers Merger is subject to the satisfaction, or waiver by Parent, satisfaction at or prior to Closing, the Closing Date of the following conditions, any or all which may be waived by them, in whole or in part, to the extent permitted by applicable law:
(a) (i) the representations and warranties set forth in Section 3.1 (Organization and Good Standing; Subsidiaries), Section 3.3 (Capitalization), Section 3.16 (Authority; Binding Nature of Agreement), Section 3.17 (Vote Required), Section 3.21 (Brokers) and Section 3.23 (Takeover Statutes) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date, as though made as of the Closing Date and (ii) each of the other The representations and warranties of the Company contained Target set forth in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date, Date as though made as of on such date (except to the Closing Date, except (A) in each case, extent such representations and warranties that are expressly made only as of a specific date shall be true and correct only on and date, in which case as of such specific date, and (B) in the case of this clause (ii), except where the failure of such representations or warranties failures to be so true and correct (except in the case of Section 3.5(b), without giving effect for this purpose disregarding any qualification or limitation as to any materiality or “Company a Target Material Adverse Effect” qualifications set forth therein) does do not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Target Material Adverse Effect;. Parent shall have received a certificate signed on behalf of Target by an executive officer of Target to such effect.
(b) the Company Parties Target shall have performed in all material respects all its obligations required to be performed by them it under this Agreement Agreement. Parent shall have received a certificate signed on or prior behalf of Target by an executive officer of Target to the Closing Date;such effect.
(c) since Since the date hereofof this Agreement, there shall not have occurred any Company a Target Material Adverse Effect;.
(d) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions Each consent, waiver and approval set forth in Section 6.2(a), Section 6.2(b5.4(b) and Section 6.2(c5.4(c) of the Target Disclosure Schedule must have been satisfied;obtained, and Target must have provided Merger Sub with copies thereof.
(e) Parent Target shall have received a tax opinion provided to Parent the executed Compromise and Settlement Agreement with Shell relating to the arbitration proceeding between the parties, and the terms of DLA Piper (or such other nationally recognized REIT counsel as may agreement shall be reasonably acceptable materially similar to the terms previously disclosed to Parent), substantially in the form of Exhibit E to this Agreement, dated as of the Closing Date (which such opinion shall be subject to customary assumptions, qualifications and representations, including representations made by the Acquired Companies), to the effect that beginning with its taxable year ended December 31, 2002 and until the Closing, the Company has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code (which opinion shall be based upon the representation letter described in Section 5.17(g)(ii)).
(f) Parent shall have received the written opinion of Hunton No more than five percent (or other counsel as may be reasonably acceptable to Parent and the Company), substantially in the form of Exhibit F to this Agreement, dated as of the Closing Date, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Company Merger will qualify as a “reorganization” within the meaning of Section 368(a5%) of the Code. In rendering such opinionholders of Target Common Shares shall have notified Target or the Parent Parties of their intent to exercise dissenter’s rights.
(g) The Fairness Opinion, counsel shall rely upon the tax representation letters as described in Section 5.17(g)(iii) and Section 5.17(h)(iii). The condition set forth in this Section 6.2(f) 5.24, shall not be waivable after receipt have been withdrawn.
(h) Except for the Well Bonus Plans and any other employee incentive plans being assumed by the Surviving Company, all employee incentive plans shall terminate on or prior to the Effective Time.
(i) All of Target’s payment and other obligations under the Engagement Letters shall have terminated, except for the indemnity and confidentiality provisions thereunder.
(j) Each holder of an Excepted Option shall have delivered to Parent Shareholder Approvalan executed Option Waiver, unless further shareholder approval is obtained with appropriate disclosureCancellation and Release Agreement cancelling such Excepted Options.
Appears in 2 contracts
Samples: Merger Agreement (Alta Mesa Energy LLC), Merger Agreement (Meridian Resource Corp)
Conditions to the Obligations of the Parent Parties. The obligation of the Parent Parties to consummate the Mergers is subject to the satisfaction, or waiver by Parent, at or prior to Closing, of the following conditions:
(a) (i) the representations and warranties of the Company (i) set forth in Section 3.1 4.2 (Organization and Good Standing; SubsidiariesOrganizational Documents), Section 3.3 (Capitalization), Section 3.16 4.15 (Authority; Binding Nature of Agreement), Section 3.17 (Vote Required), Section 3.21 4.19 (Brokers) and Section 3.23 4.22 (Takeover StatutesExcluded Asset Transactions) shall be true and correct in all material respects (disregarding all qualifications or limitations as to “materiality”, “Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement Closing Date with the same effect as though made on and as of the Closing DateDate (except to the extent expressly made as of a specified date, in which case as though made of such specified date), (ii) set forth in Section 4.3 (Capitalization) shall, except for any de minimis inaccuracies, be true and correct in all respects as of the Closing Date with the same effect as though made on and as of the Closing Date (except to the extent expressly made as of a specified date, in which case as of such specified date), and (iii) set forth in this Agreement, other than those Sections specifically identified in clause (i) and clause (ii) each of the other representations and warranties of the Company contained in this Agreement paragraph, shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement Closing Date with the same effect as though made on and as of the Closing Date, as though made as of Date (except to the Closing Date, except (A) in each case, representations and warranties that are extent expressly made as of a specific date shall be true and correct only on and specified date, in which case as of such specified date), and (B) except, in the case of this clause (iiiii), where the failure of such representations or warranties to be true and correct (except in the case of Section 3.5(b), without giving effect to any materiality or “Company Material Adverse Effect” qualifications set forth therein) does not have, and would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse Effect;.
(b) the Company Parties shall have performed in all material respects all obligations required to be performed by them under this Agreement on at or prior to the Closing Date;
(c) since the date hereofof this Agreement, there shall not have occurred been any Effect that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect;
(d) the Excluded Asset Closings shall have occurred in accordance with the terms of the Excluded Asset Purchase Agreements;
(e) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying (i) that the conditions set forth in Section 6.2(a7.2(a), Section 6.2(b7.2(b), Section 7.2(c) and Section 6.2(c7.2(d) have been satisfied;; and
(ef) Parent shall have received a tax opinion of DLA Piper Xxxxxxx Procter LLP (or such other nationally recognized REIT counsel as may be reasonably acceptable to ParentParent and the Company), substantially in the form of Exhibit E to this Agreement, dated as of the Closing Date (which such opinion shall be subject to customary assumptions, qualifications and representations, including representations made by the Acquired Companies)Company and the Company Subsidiaries, and which may contain such changes or modifications from the language set forth on such exhibits as may be deemed necessary or appropriate by Xxxxxxx Procter LLP or the applicable REIT counsel) and in form and substance reasonably satisfactory to Parent to the effect that beginning with its taxable year ended December 31, 2002 2017 and until the Closing, the Company has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code (which Code; provided that the opinion shall be based upon will not address whether the representation letter Company will satisfy the distribution requirement described in Code Section 5.17(g)(ii)).
(f857(a)(1) Parent shall have received for its actual taxable year beginning January 1, 2022, or has satisfied such requirement for its hypothetical short taxable year beginning January 1, 2022, and ending at the written opinion of Hunton (or other counsel as may be reasonably acceptable to Parent and the Company), substantially in the form of Exhibit F to this Agreement, dated as effective time of the Closing Date, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Company Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel shall rely upon the tax representation letters described in Section 5.17(g)(iii) and Section 5.17(h)(iii). The condition set forth in this Section 6.2(f) shall not be waivable after receipt of the Parent Shareholder Approval, unless further shareholder approval is obtained with appropriate disclosureClosing.
Appears in 2 contracts
Samples: Merger Agreement (Wheeler Real Estate Investment Trust, Inc.), Merger Agreement (Cedar Realty Trust, Inc.)
Conditions to the Obligations of the Parent Parties. The obligation obligations of the Parent Parties to consummate the Mergers is are subject to the satisfaction, satisfaction or waiver by Parent, at or prior to Closing, in writing of the following additional conditions:
(a) The representations and warranties of the Company Parties contained in this Agreement shall be true and correct, except where the failure of such representations or warranties to be so true and correct (iwithout giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth in such representations and warranties (other than with respect to the last sentence of Section 4.06)) would not have, individually or in the aggregate, a Company Material Adverse Effect, in each case as of the date of this Agreement and as of Closing as though made on the Closing Date (except to the extent such representations and warranties expressly are made as of a specific date, in which case such representations and warranties shall be true and correct only on and as of such date). In addition, the representations and warranties set forth in Section 3.1 (Organization and Good Standing; Subsidiaries), Section 3.3 (Capitalization), Section 3.16 (Authority; Binding Nature of Agreement), Section 3.17 (Vote Required), Section 3.21 (Brokers4.03(a) and Section 3.23 (Takeover Statutes4.03(b)(i) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date, as though made as of on the Closing Date and (ii) each of except to the other extent such representations and warranties of the Company contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date, as though made as of the Closing Date, except (A) in each case, representations and warranties that expressly are made as of a specific date date, in which case such representations and warranties shall be true and correct only on and as of such date). The Company shall have delivered to Parent a certificate, dated the date of the REIT Merger Effective Time, signed by an officer of the Company and (B) certifying as to the satisfaction of the conditions specified in the case of this clause (iiSection 8.02(a), where the failure of such representations or warranties to be true and correct (except in the case of Section 3.5(b), without giving effect to any materiality or “Company Material Adverse Effect” qualifications set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;.
(b) the The Company Parties shall have performed performed, in all material respects respects, all material obligations required and complied with, in all material respects, its material agreements and covenants to be performed or complied with by them it under this Agreement on or prior to the Closing Date;REIT Merger Effective Time, and the Company shall have delivered to Parent a certificate, dated the date of the REIT Merger Effective Time, signed by an officer of the Company and certifying as to the satisfaction of the conditions specified in this Section 8.02(b).
(c) since On the date hereofClosing Date, there shall not have occurred any exist a Change arising after the date of this Agreement that, individually or in the aggregate, constitutes a Company Material Adverse Effect;
(d) . Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer an officer of the Company certifying that Company, dated the conditions set forth in Section 6.2(a)Closing Date, Section 6.2(b) and Section 6.2(c) have been satisfied;to the foregoing effect.
(ed) Parent shall have received a tax opinion of DLA Piper (or such other nationally recognized REIT counsel as may be reasonably acceptable to Parent), substantially in the form of Exhibit E to this AgreementXxxx Xxxxx LLP, dated as of the Closing Date Date, in the form attached hereto as Exhibit D (which such opinion shall be subject to based upon customary assumptions, qualifications exceptions and representationsqualifications, including and customary representations made by the Acquired CompaniesCompany and its Subsidiaries in an officer’s certificate in the form attached hereto as an exhibit to such tax opinion), to the effect opining that beginning with its taxable year ended December 31, 2002 and until the Closing, the Company has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code for all taxable periods commencing with the Company’s taxable year ended December 31, 2004 until the Closing.
(which opinion e) The consents set forth on Exhibit I shall be based upon have been obtained in form and substance reasonably satisfactory to Parent, subject to the representation letter described in Section 5.17(g)(ii)).terms and conditions set forth on Exhibit I.
(f) Parent The Settlement Agreement, shall have received been approved by the written opinion United States District Court for the Eastern District of Hunton (or other counsel as may be reasonably acceptable to Parent Pennsylvania, and the Company), substantially in the form of Exhibit F Company shall have made all payments and performed all other material obligations pursuant to this that certain Settlement Agreement, dated as of the Closing Date, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Company Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel shall rely upon the tax representation letters described in Section 5.17(g)(iii) and Section 5.17(h)(iii). The condition set forth in this Section 6.2(f) shall not be waivable after receipt of the Parent Shareholder Approval, unless further shareholder approval is obtained with appropriate disclosure.
Appears in 1 contract
Conditions to the Obligations of the Parent Parties. The obligation obligations of the Parent Parties to consummate the Mergers is are subject to the satisfaction, satisfaction or waiver by Parent, at or prior to Closing, in writing of the following additional conditions:
(a) The representations and warranties of the Company Parties contained in this Agreement shall be true and correct, except where the failure of such representations or warranties to be so true and correct (iwithout giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth in such representations and warranties (other than with respect to the last sentence of Section 4.06)) would not have, individually or in the aggregate, a Company Material Adverse Effect, in each case as of the date of this Agreement and as of Closing as though made on the Closing Date (except to the extent such representations and warranties expressly are made as of a specific date, in which case such representations and warranties shall be true and correct only on and as of such date). In addition, the representations and warranties set forth in Section 3.1 (Organization and Good Standing; Subsidiaries), Section 3.3 (Capitalization), Section 3.16 (Authority; Binding Nature of Agreement), Section 3.17 (Vote Required), Section 3.21 (Brokers4.03(a) and Section 3.23 (Takeover Statutes4.03(b)(i) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date, as though made as of on the Closing Date and (ii) each of except to the other extent such representations and warranties of the Company contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date, as though made as of the Closing Date, except (A) in each case, representations and warranties that expressly are made as of a specific date date, in which case such representations and warranties shall be true and correct only on and as of such date). The Company shall have delivered to Parent a certificate, dated the date of the REIT Merger Effective Time, signed by an officer of the Company and (B) certifying as to the satisfaction of the conditions specified in the case of this clause (iiSection 8.02(a), where the failure of such representations or warranties to be true and correct (except in the case of Section 3.5(b), without giving effect to any materiality or “Company Material Adverse Effect” qualifications set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;.
(b) the The Company Parties shall have performed performed, in all material respects respects, all material obligations required and complied with, in all material respects, its material agreements and covenants to be performed or complied with by them it under this Agreement on or prior to the Closing Date;REIT Merger Effective Time, and the Company shall have delivered to Parent a certificate, dated the date of the REIT Merger Effective Time, signed by an officer of the Company and certifying as to the satisfaction of the conditions specified in this Section 8.02(b).
(c) since On the date hereofClosing Date, there shall not have occurred any exist a Change arising after the date of this Agreement that, individually or in the aggregate, constitutes a Company Material Adverse Effect;
(d) . Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer an officer of the Company certifying that Company, dated the conditions set forth in Section 6.2(a)Closing Date, Section 6.2(b) and Section 6.2(c) have been satisfied;to the foregoing effect.
(ed) Parent shall have received a tax opinion of DLA Piper (or such other nationally recognized REIT counsel as may be reasonably acceptable to Parent), substantially in the form of Exhibit E to this AgreementRxxx Xxxxx LLP, dated as of the Closing Date Date, in the form attached hereto as Exhibit D (which such opinion shall be subject to based upon customary assumptions, qualifications exceptions and representationsqualifications, including and customary representations made by the Acquired CompaniesCompany and its Subsidiaries in an officer’s certificate in the form attached hereto as an exhibit to such tax opinion), to the effect opining that beginning with its taxable year ended December 31, 2002 and until the Closing, the Company has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code for all taxable periods commencing with the Company’s taxable year ended December 31, 2004 until the Closing.
(which opinion e) The consents set forth on Exhibit I shall be based upon have been obtained in form and substance reasonably satisfactory to Parent, subject to the representation letter described in Section 5.17(g)(ii)).terms and conditions set forth on Exhibit I.
(f) Parent The Settlement Agreement, shall have received been approved by the written opinion United States District Court for the Eastern District of Hunton (or other counsel as may be reasonably acceptable to Parent Pennsylvania, and the Company), substantially in the form of Exhibit F Company shall have made all payments and performed all other material obligations pursuant to this that certain Settlement Agreement, dated as of the Closing Date, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Company Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel shall rely upon the tax representation letters described in Section 5.17(g)(iii) and Section 5.17(h)(iii). The condition set forth in this Section 6.2(f) shall not be waivable after receipt of the Parent Shareholder Approval, unless further shareholder approval is obtained with appropriate disclosure.
Appears in 1 contract
Conditions to the Obligations of the Parent Parties. The obligation of the Parent Parties to consummate the Mergers is and the other transactions contemplated by this Agreement on the Closing Date are subject to the satisfactionsatisfaction (or, or to the extent permitted by applicable Law, waiver by Parent, ) at or prior to ClosingEffective Time, of each of the following conditions:
(a) (i) other than the representations and warranties set forth in Section 3.1 (Organization and Good Standing; Subsidiaries), Section 3.16 (Authority; Binding Nature of Agreement), Sections 3.3 (Capitalization), Section 3.5 (Absence of Certain Changes), Section 3.11 (Tax Matters), Section 3.16 (Authority; Binding Nature of Agreement), Section 3.17 (Vote Required), Section 3.21 3.20 (Brokers) and Section 3.23 3.22 (Takeover Statutes), the representations and warranties of the Company Parties set forth in Article 3 of this Agreement shall be true and correct (without giving effect to any materiality or Company Material Adverse Effect qualifications set forth therein) as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for such failures to be so true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect; (ii) the representations and warranties set forth in Section 3.1 (Organization and Good Standing; Subsidiaries), Section 3.5(c) (Absence of Certain Changes), Section 3.11 (Tax Matters), Section 3.16 (Authority; Binding Nature of Agreement), Section 3.17 (Vote Required), Section 3.20 (Brokers) and Section 3.22 (Takeover Statutes) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date, as though made as of the Closing Date and (ii) each of the other representations and warranties of the Company contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date, as though made as of the Closing Date, except (A) in each case, representations and warranties that are made as of a specific date shall be true and correct only on and as of such date, and (B) in the case of this clause (ii), where the failure of such representations or warranties to be true and correct (except in the case of Section 3.5(b), without giving effect to any materiality or “Company Material Adverse Effect” Effect qualifications set forth therein) does not haveas of the date hereof and as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date); (iii) the representations and warranties set forth in Section 3.3 (Capitalization) shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), except for failures to be true and correct that would not reasonably be expected to haveresult in additional costs, expenses or Liabilities of Parent Parties, individually or in the aggregate, a Company Material Adverse Effectthat is more than $100,000, and (iv) the representations and warranties set forth in Sections 3.5(a) and (b) (Absence of Certain Changes) shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date);
(b) the Company Parties shall have performed in all material respects all obligations required to be performed by them under this Agreement on at or prior to the Closing Date;
(c) since the date hereof, there shall not have occurred any Company Material Adverse Effect;
(d) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied;
(e) Parent shall have received a tax opinion of DLA Piper (or such other nationally recognized REIT counsel as may be XxXxxxx North Xxxxxx & Xxxxx, PC LLO, in form and substance reasonably acceptable to Parent), substantially in the form of Exhibit E to this Agreement, dated as of the Closing Date (which such opinion shall be subject to customary assumptions, qualifications and representations, including representations made by the Acquired Companies), to the effect that beginning with its taxable year ended December 31, 2002 2010 and until the Closing, the Company has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code (which opinion shall be based upon the representation letter described in Section 5.17(g)(ii)).Code;
(f) Parent the Company shall have received all consents and waivers from third parties as set forth on Part 6.2(f) of the written opinion of Hunton Company Disclosure Schedule shall been obtained;
(or other counsel as may be reasonably acceptable g) the Company shall have delivered to Parent and the Company), substantially in the form of Exhibit F to this Agreementa duly executed certificate, dated as of the Closing Date, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, that the Company Merger will qualify as has been a “reorganizationdomestically controlled qualified investment entity” within the meaning of Section 368(a897(h)(4)(B) of the Code during the period during which the Company was in existence, and therefore the Company Capital Shares are not “United States real property interests” by reason of the exception provided in Section 897(h)(2) of the Code. In rendering ;
(h) Parent shall have received the Payoff Letters relating to any Indebtedness of the Acquired Companies that has been designated by Parent, in its sole discretion, to be paid off at or prior to Closing and evidence of termination of any Liens securing such opinionIndebtedness;
(i) [reserved];
(j) no Acquired Companies shall have entered into any Contract or otherwise agreed to pay or incurred Liability with respect to any severance or other termination benefits, counsel shall rely upon except to the tax representation letters described Persons and in Section 5.17(g)(iii) and Section 5.17(h)(iii). The condition the amounts set forth in this Section 6.2(fon Part 6.2(j) shall not be waivable after receipt of the Parent Shareholder ApprovalCompany Disclosure Schedule;
(k) no Governmental Entity of competent jurisdiction shall have initiated a suit, unless further shareholder approval is obtained action or Legal Proceeding seeking to prohibit or otherwise prevent the consummation of the Mergers or the other Transactions;
(l) resignations executed by each of the officers, directors, trustees or equivalents of the Acquired Companies in office immediately prior to the Effective Time, with appropriate disclosuresuch resignations to be effective as of the Effective Time; provided, that, with respect to the Atlanta JV, only the resignations of the officers, directors, trustees or equivalents in which the Company or its Subsidiaries have the right to elect; and
(m) evidence, in form and substance satisfactory to Parent, of the termination of the related party agreements and transactions set forth on Part 6.2(m) of the Company Disclosure Schedule, together with any releases reasonably requested by Parent.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Condor Hospitality Trust, Inc.)
Conditions to the Obligations of the Parent Parties. The obligation of the Parent Parties to consummate the Mergers is subject to the satisfaction, or waiver by Parent, at or prior to Closing, of the following conditions:
(a) (i) other than the representations and warranties set forth in Section 3.1 (Organization and Good Standing; Subsidiaries), Section 3.16 (Authority; Binding Nature of Agreement), Sections 3.3(a), (c), (d), (e), (g), (h) and (i) (Capitalization), Section 3.5 (Absence of Certain Changes), Section 3.20 (Brokers) and Section 3.22 (Takeover Statutes), the representations and warranties of the Company Parties set forth in Article 3 of this Agreement shall be true and correct (without giving effect to any materiality or Company Material Adverse Effect qualifications set forth therein) as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for such failures to be so true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect; (ii) the representations and warranties set forth in Section 3.1 (Organization and Good Standing; Subsidiaries), Section 3.3 (Capitalization) (other than Sections 3.3(a), (b) and (f)), Section 3.5(c) (Absence of Certain Changes), Section 3.16 (Authority; Binding Nature of Agreement), Section 3.17 (Vote Required), Section 3.21 3.20 (Brokers) and Section 3.23 3.22 (Takeover Statutes) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date, as though made as of the Closing Date and (ii) each of the other representations and warranties of the Company contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date, as though made as of the Closing Date, except (A) in each case, representations and warranties that are made as of a specific date shall be true and correct only on and as of such date, and (B) in the case of this clause (ii), where the failure of such representations or warranties to be true and correct (except in the case of Section 3.5(b), without giving effect to any materiality or “Company Material Adverse Effect” Effect qualifications set forth therein) does not haveas of the date hereof and as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date); (iii) the representations and warranties set forth in Section 3.3(a) (Capitalization) shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), except for de minimis inaccuracies, and would not reasonably (iv) the representations and warranties set forth in Sections 3.5(a) and (b) (Absence of Certain Changes) shall be expected true and correct in all respects as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (except to havethe extent that any such representation and warranty expressly speaks as of an earlier date, individually or in the aggregate, a Company Material Adverse Effectwhich case such representation and warranty shall be true and correct in all respects as of such earlier date);
(b) the Company Parties shall have performed in all material respects all obligations required to be performed by them under this Agreement on at or prior to the Closing Date;
(c) since the date hereof, there shall not have occurred any Company Material Adverse Effect;
(d) Parent shall have received at the Closing a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied;; and
(e) Parent shall have received a tax opinion of DLA Piper LLP (US) (or such other nationally recognized REIT counsel as may be reasonably acceptable to Parent), substantially in the form of Exhibit E A to this Agreement, dated as of the Closing Date (which such opinion shall be subject to customary assumptions, qualifications and representations, including representations made by the Acquired Companies), to the effect that beginning with its taxable year ended December 31, 2002 and until the Closing, the Company has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code (which opinion shall be based upon the representation letter described in Section 5.17(g)(ii))Code.
(f) Parent shall have received the written opinion of Hunton (or other counsel as may be reasonably acceptable to Parent and the Company), substantially in the form of Exhibit F to this Agreement, dated as of the Closing Date, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Company Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel shall rely upon the tax representation letters described in Section 5.17(g)(iii) and Section 5.17(h)(iii). The condition set forth in this Section 6.2(f) shall not be waivable after receipt of the Parent Shareholder Approval, unless further shareholder approval is obtained with appropriate disclosure.
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Conditions to the Obligations of the Parent Parties. The obligation obligations of the Parent Parties to consummate consummate, or cause to be consummated, the Mergers is Merger are subject to the satisfaction, or waiver by Parent, at or prior to Closing, satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Parent Parties:
(a) (i) Each of the representations and warranties of the Company set forth in Section 3.1 Sections 4.1 (Organization and Good Standing; Organization), 4.2(a) (Subsidiaries), Section 3.3 4.3 (CapitalizationDue Authorization), Section 3.16 4.4 (Authority; Binding Nature of AgreementNo Conflict), Section 3.17 4.6 (Vote RequiredCapitalization of the Company), Section 3.21 4.7 (Capitalization of Subsidiaries) and 4.16 (Brokers’ Fees) shall be true and Section 3.23 (Takeover Statutes) correct in all respects, except for inaccuracies that are de minimis in amount and effect, as of the Closing Date, as if made anew at and as of that date, except with respect to representations and warranties that speak only as to an earlier date, which representations and warranties shall be true and correct in all material respects as of the date of this Agreement at and as of the Closing Date, as though made as of the Closing Date and (ii) each such earlier date. Each of the other representations and warranties of the Company contained in this Agreement Article IV (other than those specifically identified in the immediately preceding sentence), disregarding all qualifications contained therein relating to materiality, Material Adverse Effect or words of similar import, shall be true and correct as of the date of this Agreement and as of the Closing Date, as though if made anew at and as of the Closing Datethat date, except (A) in each case, with respect to representations and warranties that are made speak only as of a specific date to an earlier date, which representations and warranties shall be true and correct only on at and as of such earlier date, and (B) in the case of this clause (ii), where the failure of such representations except for any inaccuracies or warranties to be true and correct (except in the case of Section 3.5(b), without giving effect to any materiality or “Company Material Adverse Effect” qualifications set forth therein) does not have, and omissions that would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;.
(b) Each of the covenants of the Company Parties shall have performed in all material respects all obligations required and the Holder Representative to be performed by them under this Agreement on at or prior to the Closing Date;shall have been performed in all material respects.
(c) since Since the date hereofBalance Sheet Date, there shall not have occurred any Company a Material Adverse Effect;.
(d) Parent The Company shall have received at the Closing delivered to Parent a certificate signed on behalf by an officer of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company certifying that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied;
(e) Parent shall have received a tax opinion of DLA Piper (or such other nationally recognized REIT counsel as may be reasonably acceptable to Parent), substantially in the form of Exhibit E to this Agreement, dated as of the Closing Date (which such opinion shall be subject to customary assumptions, qualifications and representations, including representations made by the Acquired Companies), to the effect that beginning with its taxable year ended December 31, 2002 and until the Closing, the Company has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code (which opinion shall be based upon the representation letter described in Section 5.17(g)(ii)).
(f) Parent shall have received the written opinion of Hunton (or other counsel as may be reasonably acceptable to Parent and the Company), substantially in the form of Exhibit F to this Agreement, dated as of the Closing Date, to certifying that the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Company Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel shall rely upon the tax representation letters described conditions specified in Section 5.17(g)(iii7.2(a), Section 7.2(b) and Section 5.17(h)(iii). 7.2(c) have been fulfilled.
(e) The condition set forth Company and the Holder Representative shall have delivered (or cause to have been delivered) each of the Closing deliverables to be delivered by it pursuant to Section 2.4.
(f) Duly executed Company Letters of Transmittal from all Pre-Closing Holders shall have been delivered to Parent.
(g) Each of the Restrictive Covenant Agreements, Company Letters of Transmittal and Employment Agreements shall remain in this Section 6.2(ffull force and effect, and none of the foregoing shall have been modified or rescinded, in each case, without the prior written consent of Parent.
(h) The Company shall have delivered to Parent the PCAOB Audited Financial Statements and Reviewed Interim Financial Statements in a form reasonably acceptable to Parent, which PCAOB Audited Financial Statements and Reviewed Interim Financial Statements shall not be waivable after receipt of contain any material deviations (as determined in good faith by Parent) from the Parent Shareholder Approval, unless further shareholder approval is obtained with appropriate disclosurecorresponding financial information for the respective periods presented in the Financial Statements.
(i) The Restructuring shall have been consummated.
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