Conditions. (a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement. (b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed. (c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions: (1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares; (2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and (3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Banc of California, Inc.), Securities Purchase Agreement (Banc of California, Inc.), Securities Purchase Agreement (Banc of California, Inc.)
Conditions. (a) The obligation of Backstop Parties’ obligations to purchase any securities pursuant to the Investor to consummate Basic Commitment and/or the Closing shall be Backstop Commitment are subject to the condition that all representations following conditions: (i) the execution and warranties delivery of mutually satisfactory definitive documentation among BFE Corp. and other statements the Backstop Parties which incorporates the terms set forth herein (the “Definitive Agreements”); (ii) the satisfaction or waiver by the Backstop Parties of the Company shall be true and correct as of conditions to the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures Backstop Parties’ obligations to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to consummate the transactions contemplated by the Branch Purchase Agreement.
Definitive Agreements as may be agreed upon in the Definitive Documents; (biii) The obligation BFE Corp. shall be in compliance with its obligations under the Loan Agreement and all other transaction documents relating to the Bridge Loan in all material respects; (iv) there has not occurred any material adverse change, or any development involving a prospective material adverse change, since the date hereof in the condition, financial or otherwise, or in the earnings, business, operations or properties of BFE Corp. and its subsidiaries, taken as a whole (a “Material Adverse Change”); (v) there not having occurred after the date hereof at any time prior to the funding of the Company to consummate Basic Commitment and/or the Closing Backstop Commitment any material disruption or material adverse change in the financial, banking or capital markets that, in the commercially reasonable judgment of the Backstop Parties, would have a material adverse impact on the success of the Rights Offering; (vi) all required approvals and consents shall be subject to the condition that have been obtained; (vii) all representations and warranties and other statements of the Investor shall be made by BFE Corp. in this Letter Agreement being true and correct as of the date in all material respects; (viii) BFE Corp. shall be in compliance with all covenants and other provisions of this Letter Agreement in all material respects; (ix) the Cargill Acknowledgement Letter (as defined below) being in full force and the date of the Closing effect; (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(cx) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing Executive Management Waiver Agreements (as defined in the Branch Purchase Loan Agreement)) being in full force and effect; (xi) no actions, suits or proceedings shall be pending or threatened that challenge any Definitive Agreement, this Letter Agreement, the Loan Agreement, the Cargill Acknowledgement Letter or any related agreement; (xii) the Backstop Parties having been reasonably satisfied with (A) the Certificate of Designations setting forth the rights and preferences of the Series A Non-Voting Convertible Preferred Stock that reflects the terms set forth on Exhibit A hereto and other customary terms and provisions as determined by Greenlight in its reasonable discretion and (B) the amended and restated limited liability company agreement of the LLC setting forth the rights and preferences of the Preferred Membership Interests and, if applicable, the Class B Preferred Membership Interests, and other customary terms and provisions as determined by Greenlight in its reasonable discretion; (xiii) the receipt by the Backstop Parties of a legal opinion from Cravath, Swaine & Xxxxx LLP with respect to customary matters in a form satisfactory to Greenlight in its reasonable discretion; (xiv) BFE Corp. shall not have entered into any letter of intent, memorandum of understanding, agreement in principle or other agreement relating to any competing plan, proposal, offer or transaction with a third party other than Greenlight materially inconsistent with this Letter Agreement; and (xv) the Board of Directors of BFE Corp. shall have been satisfied or waivedadopted Section 16b-3 Resolutions related to the issuance to the Backstop Parties of Series A Non-Voting Convertible Preferred Stock, Preferred Membership Interests, Class B Preferred Membership Interests, Common Stock and warrants and the allocation among the Greenlight Parties, of the Backstop Commitment and any purchase of Class B Preferred Membership Interests, the form of which shall be satisfactory to Greenlight in its sole discretion.
Appears in 3 contracts
Samples: Rights Offering Letter Agreement (Greenlight Capital LLC), Rights Offering Letter Agreement (BioFuel Energy Corp.), Rights Offering Letter Agreement (BioFuel Energy Corp.)
Conditions. The obligations of Buyer to consummate the transactions provided for hereby are subject, in the discretion of Buyer, to the satisfaction of each of the following conditions, on or prior to the Closing Date, any of which may be waived by Buyer:
(a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties in Article III and other statements of the Company Article IV shall be true and correct when made and at and as of the date of this Agreement Closing Date as if such representations and the date of the Closing warranties were made at such time (except that those representations and warranties that by their terms speak specifically which are made as of the date of this Agreement or some other a specific date shall be true and correct only as of such date);
(b) Seller, except for such failures to be so true IHC and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed and satisfied in all material respects all of its obligations hereunder theretofore agreements and covenants required hereby to be performed or satisfied by them prior to or at the Closing Date;
(c) all Consents from any Person, including without giving effect limitation those set forth on Schedule 3.7(b), and all filings, registrations and notifications necessary to any qualification as to materiality or Material Adverse Effect contained therein); and permit the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to consummation of the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of Ancillary Agreements shall have been obtained or made with no material adverse conditions being imposed;
(d) no Person that is not a party to this Agreement (or an Affiliate thereof) shall have obtained a Court Order which makes the Closing (except those representations and warranties that transactions contemplated by their terms speak specifically as of the date of this Agreement or some other date the Ancillary Agreements illegal or otherwise prohibited;
(e) there shall not have occurred any event, change or condition that, individually or in the aggregate, has had or could reasonably be true and correct as of such date); and expected to have a Material Adverse Effect;
(f) the condition that the Investor Company shall have performed all capital and surplus of its obligations hereunder theretofore to be performed.no less than $21,300,000 under GAAP;
(cg) First Standard shall have entered into the Reinsurance Treaties as described in Section 6.13;
(h) Buyer and its Affiliates and Seller and its Affiliates, as applicable, shall have entered into a service agreement or agreements in form and substance reasonably satisfactory to each of Buyer and Seller;
(i) The obligation holders (other than IHC and its Affiliates) of each a majority of the Investor and shares of common stock of Buyer present in person or by proxy at the Company to consummate the Closing Buyer's Stockholders Meeting shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit have approved the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharesby this Agreement;
(2j) the purchase by the Investor The Company shall own directly all of the Investor Shares outstanding shares of capital stock of RAS and RAS shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities own directly all of the Company would be aggregated with the Investor’s securities outstanding shares of the Company for purposes capital stock of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)First Standard Associates Corp.; and
(3k) Seller, IHC, the conditions set forth in Section 10 of the Branch Purchase AgreementCompany and its Subsidiaries, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement)applicable, shall have been satisfied or waiveddelivered the documents required to be delivered by them pursuant to Section 9.1(a), in form and content reasonably satisfactory to Buyer.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Madison Investors Corp), Stock Purchase Agreement (Independence Holding Co), Stock Purchase Agreement (Softnet Systems Inc)
Conditions. The Company’s interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) The obligation shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Investor Company hereunder to consummate the Closing extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be subject released of and discharged from such obligations to the condition that all representations extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company’s interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company’s interest in the Facilities shall be leased as a whole or in undivided part and warranties and other statements the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall be true and correct as of extend beyond the date of this Agreement and the maturity date of the Closing Bonds or (except those representations iii) the Company’s interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and warranties (b) in the event that by their terms speak specifically as the assignee, lessee, purchaser or other transferee shall assume the obligations of the date Company under Section 5.01 hereof for the remaining term of this Agreement or some other date shall be true and correct as Agreement, to the extent of such date)assignment, except for such failures to be so true and correct (without giving effect to any qualification as to materiality lease, sale, transfer or Material Adverse Effect contained therein) as would not haveother disposition, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed be released from and discharged of all liability in all material respects all respect of its such obligations hereunder theretofore to be performed the extent so assumed (without giving effect but only to any qualification as to materiality or Material Adverse Effect contained thereinsuch extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the condition Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that since such rights, interests, assets and/or properties so described constitute facilities for the date hereof no Material Adverse Effect shall have occurred generation, transmission and/or distribution of electric energy and be continuing with respect stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to either the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the Company or aggregate principal amount of the Bonds then Outstanding and (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to consummate time, and, to the Closing extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be subject released from and discharged of all liability in respect of such obligations. Anything herein to the condition contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that all representations and warranties and other statements the proposed assignment, lease or sale will not impair the validity under the Act of the Investor shall be true Bonds and correct as will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the date Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the date of Trustee the Closing (except those representations and warranties agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that by their terms speak specifically as of the date of this Agreement such element or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Actunit, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investorinterest therein, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively shall no longer be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities be part of the Company outstanding on Facilities for the date purposes of the Closing (after giving effect to the purchase this Agreement. For purposes of the Investor Shares contemplated hereby); and
(3) the conditions set forth in this Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.7.01:
Appears in 3 contracts
Samples: Loan Agreement (Unisource Energy Corp), Loan Agreement (Tucson Electric Power Co), Loan Agreement (Unisource Energy Corp)
Conditions. All Board and stockholder approvals and other conditions necessary to avoid any adverse tax or securities law consequences or other adverse consequences associated with the above-referenced restricted stock awards, options or incentive payments, including without limitation any such consents under Internal Revenue Code (a“Code”) The obligation Sections 162(m), 280G, 409A or otherwise or under Rule 16b-3 promulgated by the SEC, will be promptly and timely sought by the Company, and the Company shall use commercially reasonable efforts to ensure that principal investors affiliated with any of the Investor directors will provide a support letter confirming their consent to consummate such matters in connection with any Board approval hereof and thereof. In addition, it is the Closing shall be subject to the condition that all representations and warranties and other statements intent of the Company and the Employee that all payments, awards and benefits hereunder shall either be exempt from the application of, or comply with, the requirements of Section 409A and Section 280G of the Code and that no award shall be true and correct as granted, deferred, accelerated, extended, paid out or modified under this Agreement in a manner that would result in the imposition of an additional tax under Section 409A of the date Code upon the Employee. This Agreement and all awards hereunder shall be construed to the greatest extent possible in a manner that effects such intent. In the event that it is reasonably determined by the Company or its Board that, as a result of Section 409A of the Code, any payment or delivery of shares in respect of any award of restricted stock or options under this Agreement and may not be made at the date of time contemplated by the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct the relevant award agreement, as of such date)the case may be, except for such failures without causing the Employee to be so true and correct (without giving effect subject to any qualification as to materiality taxation under Section 409A of the Code, the Company will make such payment or Material Adverse Effect contained therein) as delivery of shares on the first day that would not have, individually result in the aggregateEmployee incurring any tax liability under Section 409A of the Code, a Material Adverse Effect; and in the condition that event any such award hereunder unavoidably becomes subject to tax under Section 409A or 280G, the Company shall have performed will provide to Employee a cash bonus in all material respects all of its obligations hereunder theretofore an amount adequate to be performed (without giving effect to satisfy any qualification as to materiality such incremental tax liability on or Material Adverse Effect contained therein); and before the condition that since the payment due date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) such tax liability. The definition of Business Combination is intended to comply with the Company or (y) definition of “change of control” under Section 409A of the Company after giving effect Code and, to the transactions extent that the above definition does not so comply and the payments contemplated by the Branch Purchase Agreement.
(b) The obligation hereunder are subject to Section 409A of the Company to consummate the Closing Code, such definition shall be subject limited (but not expanded) to the condition extent required to ensure that all representations and warranties and other statements this definition complies with the requirements of Section 409A of the Investor Code, and no Business Combination shall be true and correct as deemed to have occurred if a change of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall control has not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company occurred for purposes of any bank regulation or law, to collectively Section 409A of the Code. The determination of whether such a change of control and Business Combination occurred will be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities objectively determined by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waiveda non-discretionary manner.
Appears in 3 contracts
Samples: Employment Agreement (Starboard Resources, Inc.), Employment Agreement (Starboard Resources, Inc.), Employment Agreement (Starboard Resources, Inc.)
Conditions. 10.1 The obligation of SCOLP to consummate the acquisition of the Membership Interests is expressly conditioned upon the following, each of which constitutes a condition precedent to the obligations of SCOLP hereunder which, if not performed or determined to be acceptable to SCOLP on or before the Contribution Date (unless a different time for performance is expressly provided herein), shall permit SCOLP, at its sole option (understanding SCOLP may proceed to close upon the failure of any condition and preserve its remedies hereunder), to declare this Agreement null and void and of no further force and effect by written notice to Contributor, whereupon none of Contributor, the Owner, the Holding Company nor SCOLP shall have any further obligations hereunder to the other except for any provision hereof which expressly survives the termination of this Agreement (provided that SCOLP shall have the right to waive any one or all of such conditions):
(a) The obligation SCOLP has not terminated this Agreement on or before the expiration of the Investor Investigation Period as provided in Section 9.1 herein.
(b) On the Contribution Date, title to consummate the Closing Project and the Membership Interests shall be subject in the condition required by this Agreement and the Title Company shall be in a position to issue the title policy pursuant to the condition that Commitment.
(c) The Contributor, Owner and Holding Company shall have complied with and performed all representations covenants, agreements and conditions on their part to be performed under this Agreement within the time herein provided for such performance.
(d) The representations, warranties and other statements agreements of Contributor, Owner and the Holding Company contained herein and in all documents and agreements executed pursuant hereto are and shall be true and correct as of the date hereof and as of the Contribution Date in all material respects.
(e) From and after the date hereof to the Contribution Date, there shall have been no material adverse change in or to the Project, the business conducted thereon, Owner or the Holding Company.
(f) No action, suit, proceeding or investigation shall have been instituted before any court or governmental body, or instituted by any governmental agency, to restrain or prevent consummation of the transactions under this Agreement or which would affect the right of SCOLP to own, operate and control the Holding Company, the Owner or the Project.
(g) The Consent to Transfer Approval shall have been obtained on terms and conditions satisfactory to SCOLP. If SCOLP is unable to obtain a satisfactory Consent to Transfer Approval within ninety (90) days after the Effective Date, as the same may be extended pursuant to the immediately following sentence (the “Approval Deadline Date”), then SCOLP shall have the right to terminate this Agreement by written notice of such termination given to Contributor and Owner on or before the Approval Deadline Date then in effect. SCOLP has the right to extend the Approval Deadline Date by one sixty (60) day period by notice of such extension given to Owner and Contributor prior to the Approval Deadline Date then in effect. If SCOLP does not give this notice on or before the Approval Deadline Date, then this condition shall be deemed waived by SCOLP. If the Consent to Transfer Approval is not obtained and SCOLP fails or elects not to terminate this Agreement, SCOLP shall be required to satisfy the Existing Mortgage and pay any prepayment fee, premium or penalty as set forth in the Existing Mortgage or related documents. The payment of any prepayment fee, premium or penalty shall be in addition to the Total Agreed Value and shall not reduce the Units to be issued to Contributor at Closing.
(h) Closing pursuant to the terms of All of the Other Acquisition Agreements contemporaneously with the Closing under this Agreement is a condition of Closing under this Agreement unless the failure to close any of All of the Other Acquisition Agreements is due to the default of SCOLP (or other purchaser, as appropriate) under such agreements; or unless the failure to close any of All of the Other Acquisition Agreements is due to the exercise of a right to terminate in connection with casualty or condemnation of a project.
(i) In the event a duly organized homeowners’ association operates at the Project, or it is otherwise determined Section 723.071 of the Florida Statute applies to the Project, the Contributor’s special legal counsel shall deliver to Contributor a legal opinion (at SCOLP’s sole cost and expense), in form and substance satisfactory to SCOLP and Contributor and upon which they may rely, as to the full compliance of this transaction with Section 723.071 of the Florida Statutes. In the alternative, the Contributor shall obtain and provide for the benefit of SCOLP a fully enforceable waiver of any rights under Section 723.071 in form and substance sufficient to enable the Title Company to eliminate any exception resulting from such statute.
10.2 The obligation of Contributor to consummate the contribution of the Membership Interests is expressly conditioned upon the following, each of which constitutes a condition precedent to the obligations of Contributor hereunder which, if not performed or determined to be acceptable to Contributor on or before the Contribution Date (unless a different time for performance is expressly provided herein), shall permit Contributor, at its sole option (understanding Contributor may proceed to close upon the failure of any condition and preserve its remedies hereunder), to declare this Agreement null and void and of no further force and effect by written notice to the SCOLP, whereupon none of Contributor, the Owner, the Holding Company nor SCOLP shall have any further obligations hereunder to the other except for any provision hereof which expressly survives the termination of this Agreement and (provided that Contributor shall have the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement right to waive any one or some other date shall be true and correct as all of such date), except for such failures to be so true and correct conditions):
(without giving effect to any qualification as to materiality or Material Adverse Effect contained thereina) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company SCOLP shall have complied with and performed in all material respects all of covenants, agreements and conditions on its obligations hereunder theretofore part to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and under this Agreement within the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementtime herein provided for such performance.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and representations, warranties and other statements agreements of the Investor SCOLP contained herein and in all documents and agreements executed pursuant hereto are and shall be true and correct as of the date of this Agreement hereof and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed Contribution Date in all of its obligations hereunder theretofore to be performedmaterial respects.
(c) The obligation of each Contributor shall have received the consideration provided in Section 2 above.
(d) No action, suit, proceeding or investigation shall have been instituted before any court or governmental body, or instituted by any governmental agency, to restrain or prevent consummation of the Investor transactions under this Agreement.
(e) The Consent to Transfer Approval shall have been obtained on terms and conditions satisfactory to Contributor or SCOLP shall have fully satisfied the Company Existing Mortgage and paid any prepayment fee, premium or penalty without reduction in the Units to consummate be issued to the Contributor at Closing.
(f) Closing pursuant to the terms of All of the Other Acquisition Agreements contemporaneously with the Closing shall be under this Agreement is a condition of Closing under this Agreement unless the failure to close any of All of the Other Acquisition Agreements is due to the default of the Owner, Holding Company or Contributor (or other seller, as appropriate) under such agreements; or unless the failure to close any of All of the Other Acquisition Agreements is due to the exercise of a right to terminate in connection with casualty or condemnation of a project; or unless any party which is entitled to do so is exercising its rights to purchase any project subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;Other Contribution Agreements pursuant to Section 723.071 of the Florida Statutes.
(2g) In the purchase event a duly organized homeowners’ association operates at the Project, or it is otherwise determined Section 723.071 of the Florida Statute applies to the Project, the Contributor’s special legal counsel shall deliver to Contributor a legal opinion (at SCOLP’s sole cost and expense), in form and substance satisfactory to SCOLP and Contributor and upon which they may rely, as to the full compliance of this transaction with Section 723.071 of the Florida Statutes. In the alternative, the Contributor shall obtain and provide for the benefit of SCOLP a fully enforceable waiver of any rights under Section 723.071 in form and substance sufficient to enable the Title Company to eliminate any exception resulting from such statute.
10.3 The parties acknowledge that the Total Agreed Value provided for in the Summary of Terms was arrived at after giving due consideration to the tax treatment of this transaction by the Investor Contributor and SCOLP. A cash payment to the Contributor in exchange for the Membership Interests would trigger a significantly greater present tax liability than is the case under the transaction provided for in this Agreement. Should SCOLP, for reasons outside of its control, be unable to issue Units to the Contributor at Closing, the cash purchase price will be the amount set forth on the Summary of Terms and SCOLP shall make an additional deposit equal to 5% of such cash purchase price, which additional deposit, once made, shall be part of the Investor Shares shall not (i) require the Investor Deposit be returned, retained or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (distributed as defined in the Branch Purchase Agreement), shall have been satisfied or waivedprovided herein.
Appears in 3 contracts
Samples: Contribution Agreement (Sun Communities Inc), Contribution Agreement (Sun Communities Inc), Contribution Agreement (Sun Communities Inc)
Conditions. 10.1 The obligation of SCOLP to consummate the acquisition of the Membership Interests is expressly conditioned upon the following, each of which constitutes a condition precedent to the obligations of SCOLP hereunder which, if not performed or determined to be acceptable to SCOLP on or before the Contribution Date (unless a different time for performance is expressly provided herein), shall permit SCOLP, at its sole option (understanding SCOLP may proceed to close upon the failure of any condition and preserve its remedies hereunder), to declare this Agreement null and void and of no further force and effect by written notice to Contributor, whereupon none of Contributor, the Owner, the Holding Company nor SCOLP shall have any further obligations hereunder to the other except for any provision hereof which expressly survives the termination of this Agreement (provided that SCOLP shall have the right to waive any one or all of such conditions):
(a) The obligation SCOLP has not terminated this Agreement on or before the expiration of the Investor Investigation Period as provided in Section 9.1 herein.
(b) On the Contribution Date, title to consummate the Closing Project and the Membership Interests shall be subject in the condition required by this Agreement and the Title Company shall be in a position to issue the title policy pursuant to the condition that Commitment.
(c) The Contributor, Owner and Holding Company shall have complied with and performed all representations covenants, agreements and conditions on their part to be performed under this Agreement within the time herein provided for such performance.
(d) The representations, warranties and other statements agreements of Contributor, Owner and the Holding Company contained herein and in all documents and agreements executed pursuant hereto are and shall be true and correct as of the date hereof and as of the Contribution Date in all material respects.
(e) From and after the date hereof to the Contribution Date, there shall have been no material adverse change in or to the Project, the business conducted thereon, Owner or the Holding Company.
(f) No action, suit, proceeding or investigation shall have been instituted before any court or governmental body, or instituted by any governmental agency, to restrain or prevent consummation of the transactions under this Agreement or which would affect the right of SCOLP to own, operate and control the Holding Company, the Owner or the Project.
(g) The Consent to Transfer Approval shall have been obtained on terms and conditions satisfactory to SCOLP. If SCOLP is unable to obtain a satisfactory Consent to Transfer Approval within ninety (90) days after the Effective Date (the “Approval Deadline Date”), then SCOLP shall have the right to terminate this Agreement by written notice of such termination given to Contributor and Owner on or before the Approval Deadline Date then in effect. SCOLP has the right to extend the Approval Deadline Date by one sixty (60) day period by notice of such extension given to Owner and Contributor prior to the Approval Deadline Date then in effect. If SCOLP does not give this notice on or before the Approval Deadline Date, then this condition shall be deemed waived by SCOLP.
(h) Closing pursuant to the terms of All of the Other Acquisition Agreements contemporaneously with the Closing under this Agreement is a condition of Closing under this Agreement unless the failure to close any of All of the Other Acquisition Agreements is due to the default of SCOLP (or other purchaser, as appropriate) under such agreements; or unless the failure to close any of All of the Other Acquisition Agreements is due to the exercise of a right to terminate in connection with casualty or condemnation of a project.
(i) In the event a duly organized homeowners’ association operates at the Project, or it is otherwise determined Section 723.071 of the Florida Statute applies to the Project, the Contributor’s special legal counsel shall deliver to Contributor a legal opinion (at SCOLP’s sole cost and expense), in form and substance satisfactory to SCOLP and Contributor and upon which they may rely, as to the full compliance of this transaction with Section 723.071 of the Florida Statutes. In the alternative, the Contributor shall obtain and provide for the benefit of SCOLP a fully enforceable waiver of any rights under Section 723.071 in form and substance sufficient for the Title Company to eliminate any exception resulting from such statute.
10.2 The obligation of Contributor to consummate the contribution of the Membership Interests is expressly conditioned upon the following, each of which constitutes a condition precedent to the obligations of Contributor hereunder which, if not performed or determined to be acceptable to Contributor on or before the Contribution Date (unless a different time for performance is expressly provided herein), shall permit Contributor, at its sole option (understanding Contributor may proceed to close upon the failure of any condition and preserve its remedies hereunder), to declare this Agreement null and void and of no further force and effect by written notice to the SCOLP, whereupon none of Contributor, the Owner, the Holding Company nor SCOLP shall have any further obligations hereunder to the other except for any provision hereof which expressly survives the termination of this Agreement and (provided that Contributor shall have the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement right to waive any one or some other date shall be true and correct as all of such date), except for such failures to be so true and correct conditions):
(without giving effect to any qualification as to materiality or Material Adverse Effect contained thereina) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company SCOLP shall have complied with and performed in all material respects all of covenants, agreements and conditions on its obligations hereunder theretofore part to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and under this Agreement within the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementtime herein provided for such performance.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and representations, warranties and other statements agreements of the Investor SCOLP contained herein and in all documents and agreements executed pursuant hereto are and shall be true and correct as of the date of this Agreement hereof and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed Contribution Date in all of its obligations hereunder theretofore to be performedmaterial respects.
(c) The obligation of each Contributor shall have received the consideration provided in Section 2 above.
(d) No action, suit, proceeding or investigation shall have been instituted before any court or governmental body, or instituted by any governmental agency, to restrain or prevent consummation of the Investor transactions under this Agreement.
(e) The Consent to Transfer Approval shall have been obtained on terms and conditions satisfactory to Contributor.
(f) Closing pursuant to the Company to consummate terms of All of the Other Acquisition Agreements contemporaneously with the Closing shall be under this Agreement is a condition of Closing under this Agreement unless the failure to close any of All of the Other Acquisition Agreements is due to the default of the Owner, Holding Company or Contributor (or other seller, as appropriate) under such agreements; or unless the failure to close any of All of the Other Acquisition Agreements is due to the exercise of a right to terminate in connection with casualty or condemnation of a project; or unless any party which is entitled to do so is exercising its rights to purchase any project subject to the following additional conditions:Other Contribution Agreements pursuant to Section 723.071 of the Florida statutes.
(1g) no provision of any applicable law In the event a duly organized homeowners’ association operates at the Project, or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any it is otherwise determined Section 723.071 of the Investor Shares;Florida Statute applies to the Project, the Contributor’s special legal counsel shall deliver to Contributor a legal opinion (at SCOLP’s sole cost and expense), in form and substance satisfactory to Contributor and SCOLP, as to the full compliance of this transaction with Section 723.071 of the Florida Statutes.
(2) 10.3 The parties acknowledge that the purchase Total Agreed Value provided for in the Summary of Terms was arrived at after giving due consideration to the tax treatment of this transaction by the Investor Contributor and SCOLP. A cash payment to the Contributor in exchange for the Membership Interests would trigger a significantly greater present tax liability than is the case under the transaction provided for in this Agreement. Should SCOLP, for reasons outside of its control, be unable to issue Units to the Investor Shares Contributor at Closing, the cash purchase price will be the amount set forth on the Summary of Terms and SCOLP shall not deposit 15% of such cash purchase price in escrow as an xxxxxxx money deposit pending Closing. In the event the legal opinion required under Section 10.01 (i) require the Investor or any of its affiliates to file a prior and 10.02 (g) cannot be delivered and notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would transaction is required to be aggregated with provided to the Investor’s securities residents at the Project, the notice shall provide for payment of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the cash purchase of the Investor Shares contemplated hereby); and
(3) the conditions price set forth in Section 10 the Summary of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedTerms.
Appears in 3 contracts
Samples: Contribution Agreement (Sun Communities Inc), Contribution Agreement (Sun Communities Inc), Contribution Agreement (Sun Communities Inc)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) The obligation shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Investor Company hereunder to consummate the Closing extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be subject released of and discharged from such obligations to the condition that all representations extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and warranties and other statements the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall be true and correct as of extend beyond the date of this Agreement and the maturity date of the Closing Bonds or (except those representations iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and warranties (b) in the event that by their terms speak specifically as the assignee, lessee, purchaser or other transferee shall assume the obligations of the date Company under Section 5.01 hereof for the remaining term of this Agreement or some other date shall be true and correct as Agreement, to the extent of such date)assignment, except for such failures to be so true and correct (without giving effect to any qualification as to materiality lease, sale, transfer or Material Adverse Effect contained therein) as would not haveother disposition, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed be released from and discharged of all liability in all material respects all respect of its such obligations hereunder theretofore to be performed the extent so assumed (without giving effect but only to any qualification as to materiality or Material Adverse Effect contained thereinsuch extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the condition Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that since such rights, interests, assets and/or properties so described constitute facilities for the date hereof no Material Adverse Effect shall have occurred generation, transmission and/or distribution of electric energy and be continuing with respect stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to either the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the Company or aggregate principal amount of the Bonds then Outstanding and (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to consummate time, and, to the Closing extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be subject released from and discharged of all liability in respect of such obligations. Anything herein to the condition contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that all representations and warranties and other statements the proposed assignment, lease or sale will not impair the validity under the Act of the Investor shall be true Bonds and correct as will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the date Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the date of Trustee the Closing (except those representations and warranties agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that by their terms speak specifically as of the date of this Agreement such element or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Actunit, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investorinterest therein, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively shall no longer be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities be part of the Company outstanding on Facilities for the date purposes of the Closing (after giving effect to the purchase this Agreement. For purposes of the Investor Shares contemplated hereby); and
(3) the conditions set forth in this Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.7.01:
Appears in 3 contracts
Samples: Loan Agreement (Tucson Electric Power Co), Loan Agreement (Tucson Electric Power Co), Loan Agreement (Tucson Electric Power Co)
Conditions. If with respect to the Borrowed Securities, (ai) The obligation the Company has not performed all of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore required to be performed (without giving effect to any qualification as to materiality by it under this Agreement on or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect prior to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor Time or any Date of its affiliates to file a prior notice under Delivery, as the Change in Bank Control Actcase may be, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 5 hereof have not been satisfied on or prior to the Closing Time or any Date of Delivery, as the case may be, or (iii) any of the Branch Purchase Agreement, other than the condition conditions set forth in Section 10.3(ethe applicable Forward Sale Agreement shall not have been satisfied on or prior to the Closing Time or any Date of Delivery, as the case may be (clauses (i) through (iii), together, the “Conditions”), then the Forward Seller, in its sole discretion, may elect not to borrow and deliver for sale to the Underwriters the Borrowed Securities otherwise deliverable on such date. In addition, in the event the Forward Seller determines that in connection with establishing its commercially reasonable hedge position, in its sole judgment, the Forward Seller (or its affiliate) (x) is unable, after using commercially reasonable efforts, to borrow and deliver for sale the full number of Borrowed Securities to be borrowed and sold pursuant to this Agreement at the Branch Purchase Agreement Closing Time or on such Date of Delivery or (y) would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so with respect to all or any portion of such full number of Borrowed Securities, then, in each case and upon notice delivered no later than 9:00 A.M. (Eastern time) at the Company’s acceptance Closing Time or the Date of Delivery, as applicable, the proceeds Forward Seller shall only be required to deliver for sale to the Underwriters on the Closing Time or such Date of Delivery, as the Acceptable Financing (as defined case may be, the aggregate number of shares of Common Stock that the Forward Seller or its affiliate is able to borrow in the Branch Purchase Agreement), shall have been satisfied connection with establishing its hedge position at or waivedbelow such cost.
Appears in 2 contracts
Samples: Underwriting Agreement (STAG Industrial, Inc.), Underwriting Agreement (STAG Industrial, Inc.)
Conditions. (a) The Your obligation of to purchase the Investor to consummate Notes on the Closing Date shall be subject to the performance by the Company of its agreements hereunder which by the terms hereof are to be performed at or prior to the time of delivery of the Notes and to the following further conditions precedent:
(a) Closing Certificates.
(1) Concurrently with the delivery of the Notes on the Closing Date, you shall have received a certificate dated the Closing Date, signed by a Responsible Officer of the Company, the truth and accuracy of which shall be a condition to your obligation to purchase the Notes proposed to be sold to you and to the effect that all (i) the representations and warranties and other statements of the Company shall be set forth in Exhibit C hereto are true and correct as of the date of this Agreement on and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either the Closing Date, (xii) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have has performed all of its obligations hereunder theretofore which are to be performed.performed on or prior to the Closing Date, and (iii) no Default or Event of Default has occurred and is continuing; and
(c2) The obligation You shall have received a certificate dated the Closing Date, signed by an authorized officer of each of the Investor Existing Subsidiary Guarantors, the truth and the Company to consummate the Closing accuracy of which shall be subject a condition to your obligation to purchase the Notes proposed to be sold to you and to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not effect that (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities representations and warranties of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions Existing Subsidiary Guarantors set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement 2002 Subsidiary Note Guaranty are true and correct on and with respect to the Company’s acceptance Closing Date, (ii) each Existing Subsidiary Guarantor has performed all of its obligations under the proceeds 2002 Subsidiary Note Guaranty which are to be performed on or prior to the Closing Date, and (iii) no Default or Event of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedDefault has occurred and is continuing.
Appears in 2 contracts
Samples: Note Agreement (Universal Forest Products Inc), Note Agreement (Universal Forest Products Inc)
Conditions. (aA) The obligation obligations of the Purchaser under this Agreement are conditional in all respects upon:
(i) the Purchaser's registration statement (No. 333-95623) filed with the US Securities and Exchange Commission having been declared effective, the IPO Price having exceeded USD 10 per share, the receipt of the net proceeds of the IPO by the Purchaser and the listing of the shares of the Purchaser on the NASDAQ National Market;
(ii) the Investor to consummate Parties having each complied fully with its obligations in Clause 9 and the Closing shall be subject Investor Parties having delivered to the condition that all representations Purchaser a certificate in form and warranties substance satisfactory to the Purchaser, who shall act reasonably, and other statements duly executed by the Investor Parties confirming that, if such be the case, the Investor Parties have each complied fully with its obligations in Clause 9;
(iii) no order or judgement of any court or governmental, statutory or regulatory body having been issued or made prior to Completion, which has the effect of making unlawful or otherwise prohibiting the purchase of the Company by the Purchaser;
(iv) the receipt of a letter in the Agreed Form from BOS indicating that it does not intend to exercise any rights that may be triggered by the transactions contemplated by this Agreement pursuant to a term loan agreement and a working capital letter and documentation relating thereto each dated 27 May, 1999(the "BOS Facilities") notwithstanding Completion and confirming that the BOS Facilities will remain in full force and effect notwithstanding Completion, in all respects on their existing terms;
(v) the Warranties being accurate and not misleading as at the date of this Agreement by reference to the fact and circumstances in existence at the date of this Agreement;
(vi) the Warranties continuing to be accurate in all material respects and not misleading in any material way up to and including the Completion Date and the Warranties being materially accurate and not misleading in any material way when repeated immediately before Completion by reference to the facts and circumstances subsisting at that time and the Obligors (on behalf of themselves) and the Natwest Parties and BOS (on behalf of themselves solely in relation to the Warranties in paragraphs 1 and 2 of Schedule 3) having delivered a certificate in form and substance satisfactory to the Purchaser, who shall act reasonably, and duly executed by the Obligors and the NatWest Parties and BOS confirming that, if such be true the case, the applicable Warranties were accurate and correct not misleading as of at the date of this Agreement and that they have continued to be and are materially accurate and not misleading in any material way;
(vii) no change which in the date Purchaser's reasonable opinion affects adversely the business or assets or condition or the financial or trading position or prospects of any member of the Closing Group in any material way having occurred before the time of Completion;
(except those representations viii) the Investor Parties having delivered a certificate in a form and warranties that by their terms speak specifically as of substance satisfactory to the date of this Agreement or some other date Purchaser, who shall be true and correct as of such date)act reasonably, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition confirming that the Company shall and/or any other relevant member of the Group has served all notices and obtained all consents necessitated by the transactions contemplated by this Agreement in relation to the Assumed Liabilities;
(ix) the receipt by the Purchaser of a certificate from the Investor Parties confirming that they have performed in all material respects complied with all of its their obligations hereunder theretofore to be performed under the Investment Agreement and have no claims against the Company (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); in respect of the Investor Parties other than the Managers)or the Managers under the Investment Agreement and, on payment of the Investor Loans Amount and the condition that since April Interest, no amounts will remain outstanding from any member of the date hereof no Material Adverse Effect shall have occurred and be continuing with respect Group to either the Investor Parties;
(x) the receipt by the Purchaser of confirmation from the Company or that Mr P Xxxxxxx has paid up all amounts currently outstanding on his Shares and confirmation from Xxxxxxx Limited that it has released its equitable charge over the B Shares of Xxxx Xxxxxxxx;
(yxi) the Company after giving effect Purchaser having received all necessary approvals in respect of its existing financing facilities in relation to the transactions contemplated by the Branch Purchase this Agreement.
(bB) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements Each of the Investor Parties, BOS and the Purchaser shall be true and correct as (to the extent that it is within their ability to do so) use their respective reasonable endeavours to fulfil or procure the fulfilment of the date of this Agreement conditions set out in sub-clause (A) above and will notify the date of other parties immediately upon the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as satisfaction of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedconditions.
(cC) The obligation of each Purchaser may waive in whole or in part all or any of the conditions set out in sub-clause (A). For the avoidance of doubt, the Investor Parties and BOS expressly acknowledge that the Company Purchaser has sole and absolute discretion to consummate the Closing shall be subject to the following additional conditionsdecide:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require whether or not to consummate, postpone or abandon the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)IPO; and
(3ii) the IPO Price, and the Purchaser shall have no liability to any Investor Party or BOS arising from, relating to, or in connection with any such decision (save as stated in sub-clause 3(G)).
(D) If the conditions set forth out in Section 10 sub-clause (A) are not fulfilled (notwithstanding the required reasonable endeavours in sub-clause (B)) or waived by the Purchaser on or before the Termination Date, then the Purchaser shall be entitled to treat this Agreement as terminated by written notice to the Investor Parties and BOS.
(E) If an event or series of events occurs or first becomes known to the Company after the date hereof but prior to Completion which is reasonably likely to result in the Adjusted Enterprise Value being less than GBP 47,800,000 then NWEP, on behalf of the Branch Purchase AgreementInvestor Parties and BOS, other may give written notice to the Purchaser (such notice to be sent by fax and by same day courier) giving reasons for such belief and delivered to the Purchaser no later than three Business Days before Completion. Unless the Purchaser responds to such notice within two Business Days of receipt, indicating that it wishes to proceed to Completion, this Agreement shall terminate automatically three Business Days after service of such notice by NWEP. If the Purchaser elects to proceed to Completion in accordance with this sub-clause, the Adjustment Amount shall be capped at GBP 5,000,000. NWEP (on behalf of the Investor Parties and BOS), undertakes to notify the Purchaser immediately on its becoming aware of any circumstance which would cause it to serve a notice pursuant to this sub-clause (E).
(F) If the Agreement is terminated then, subject to sub-clauses (G) and (H), the obligations of each party under this Agreement shall automatically terminate PROVIDED that the rights and liabilities of the parties which have accrued prior to termination shall subsist.
(G) If the Agreement is terminated due to the non-fulfilment of the condition set forth in Section 10.3(esub-clause (A)(i) above, the Purchaser will pay to the Sellers an amount equal to 50% of the Branch Purchase reasonable out of pocket expenses incurred by the Sellers in relation to this Agreement with respect up to a maximum amount of GBP 100,000.
(H) The Investor Parties and BOS acknowledge that the Company’s acceptance restrictions contained in Clauses 18 and 19 shall continue to apply after the termination of the proceeds sale and purchase of the Acceptable Financing (as defined Shares under this Agreement without limit in the Branch Purchase Agreement), shall have been satisfied or waivedtime.
Appears in 2 contracts
Samples: Share Purchase Agreement (Ddi Corp), Share Purchase Agreement (Ddi Corp)
Conditions. (a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements following obligations of the Company shall be true satisfied or fulfilled on or prior to the date of each Closing, unless otherwise agreed to in writing by the Placement Agent:
(a) The Company shall have delivered to the Placement Agent, at the Initial Closing, (i) a currently-dated long-form good standing certificate or telegram from the Secretary of State where the Company and correct each Subsidiary is incorporated and each other jurisdiction in which the Company and any of the Subsidiaries is qualified to do business as a foreign corporation; (ii) the certificate of incorporation of the Company and each Subsidiary, as currently in effect, certified by the Secretary of State of the state where the Company and each Subsidiary is incorporated; (iii) a certified copy of the filed Certificate of Designation setting forth the designation, preference rights, qualifications, limitations or restrictions of the Preferred Stock; (iv) by-laws of the Company certified by the secretary of the Company; and (v) certified resolutions of the Board of Directors of the Company approving this Agreement, the execution of the Preferred Stock and the Placement Agent Warrants, the registration of the Registerable Securities and the other transactions contemplated by the Preferred Stock.
(b) There shall have occurred no material adverse event affecting the Company or the Subsidiaries or any of their respective businesses, assets, prospects or the Company's securities since the date of this Agreement and Agreement.
(c) No litigation or administrative proceeding shall have been threatened or commenced against the date Company or any of the Closing Subsidiaries which (except those representations and warranties that by their terms speak specifically as i) seeks to enjoin or otherwise prohibit or restrict the consummation of the date transactions contemplated by this Agreement or (ii) if adversely determined, would have a Material Adverse Effect or have a material adverse effect on the Company's securities.
(d) The Company shall have delivered to the Placement Agent a certificate of its principal executive and financial officers as to the matters set forth in Paragraphs 8(a), (b) and (c) of this Agreement and to the further effect that (i) neither the Company nor any Subsidiary is in default, in any respect, under any note, loan agreement, security agreement, mortgage, deed of trust, indenture, contract, alliance agreement, lease, license, joint venture agreement, agreement or some other date shall be true and correct as of such date)instrument to which it is a party, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually disclosed in the aggregate, Financial Statements or the Memorandum and except where such default has not and will not have a Material Adverse Effect; (ii) the Company's representations and warranties contained in this Agreement are true and correct in all respects on such date with the same force and effect as if made on such date; (iii) there has been no amendment or changes to the Company's or Subsidiaries' certificates of incorporation or by-laws or authorizing resolutions from those delivered pursuant to Paragraph 8(a) of this Agreement; and (iv) no event has occurred which, with or without the lapse of time or giving of notice, or both, would constitute a breach or default thereof by the Company or any Subsidiary or would cause acceleration of any obligation of the Company or any Subsidiary, or could adversely affect the business, operations, financial condition that or prospects of the Company.
(e) The Placement Agent shall have received the opinion of Friedlob Xxxxxxxxx Xxxxxx Xxxxxxx & Tourillott, LLC, counsel for the Company, dated as of the closing date in form and substance reasonably satisfactory to the Placement Agent and its counsel.
(f) The Company shall have performed prepared and filed or delivered to counsel for filing with the SEC and any states in all material respects all which such filing is required, a Form D relating to the sale of its obligations hereunder theretofore to be performed the Preferred Stock and such other documents and certificates as are required.
(without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and g) Subscriptions for at least the condition that since the date hereof no Material Adverse Effect Minimum Amount of Preferred Stock shall have occurred been accepted by the Company.
(h) In addition to the right of the Placement Agent to terminate this Agreement and be continuing with respect to either (x) the Company or (y) the Company after giving effect to not consummate the transactions contemplated by this Agreement as a result of the Branch Purchase Agreement.
(b) The obligation failure of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all comply with any of its obligations hereunder theretofore set forth in this Agreement, this Agreement may be terminated by the Placement Agent by written notice to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject at any time prior to the following additional conditions:
(1) no provision of any applicable law or regulation and no Initial Closing if, in the Placement Agent's sole judgment, injunction(i) the Company and/or Subsidiaries shall have sustained a loss that is material to the Company or its Subsidiaries, taken as a whole, whether or not insured, by reason of fire, earthquake, flood, accident or other calamity, or from any labor dispute or court or government action, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulatordecree; (ii) require the Investor trading in securities on any exchange or any of its affiliates to become a bank holding company; system shall have been suspended or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation limited either generally or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement specifically with respect to the Company’s acceptance 's Common Stock; (iii) material governmental restrictions have been imposed on trading in securities generally or specifically with respect to the Company's Common Stock (not in force and effect on the date of the proceeds of the Acceptable Financing this Agreement; (as defined in the Branch Purchase Agreement), iv) a banking moratorium shall have been satisfied declared by Federal or waivedNew York State authorities; (v) an outbreak of major international hostilities or other national or international calamity shall have occurred; (vi) the Congress of the United States or any state legislative body shall have passed or taken any action or measure, or such bodies or any governmental body or any authoritative accounting institute, or board, or any governmental executive shall have adopted any orders, rules or regulations, which the Placement Agent reasonably believes is likely to have a material adverse effect on the business, financial condition or financial statements of the Company or the market for the Preferred Stock; (vii) the Common Stock shall have been delisted from NASDAQ or the Company shall have received notice from NASDAQ advising the Company of its intention to have the Common Stock delisted from NASDAQ, whether conditional or otherwise, or the Company shall fail to meet the requirements for continued listing on NASDAQ; or (viii) there shall have been, in the Placement Agent's judgment, a material decline in the Dow Xxxxx Industrial Index or the market price of the Common Stock at any time subsequent to the date of this Agreement.
Appears in 2 contracts
Samples: Preferred Stock Placement Agreement (Williams Controls Inc), Preferred Stock Placement Agreement (Williams Controls Inc)
Conditions. (a) The obligation of Star to make its contributions at Closing to the Investor to consummate capital of the Closing Partnership provided for herein shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that performance by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed Xxxxx in all material respects of all of its obligations hereunder theretofore the agreements to be performed (without giving effect to any qualification as to materiality by it hereunder on or Material Adverse Effect contained therein); before the Closing Date, and the condition that since accuracy in all material respects of the date hereof no Material Adverse Effect representations in Exhibit B and to the following further conditions:
(a) Xxxxx shall have occurred conducted its business operations at the Theatre Properties in the ordinary course and be continuing with respect to either (x) in the Company or (y) same manner in which the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementsame have heretofore been conducted.
(b) The obligation After the date hereof, Xxxxx shall have incurred no expenses or obligations, without the consent of the Company to consummate the Closing shall be subject Star, relating to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedXxxxx Undeveloped Theatre Property.
(c) The obligation Star shall have received, from counsel to Xxxxx, an opinion in the form of each of the Investor and the Company to consummate Exhibit E.
(d) There shall not be pending or threatened on the Closing shall be subject Date any action, suit or proceeding, whether administrative or judicial, seeking to enjoin, restrain, prohibit or invalidate the following additional conditions:
(1) no provision consummation of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby by this Agreement or prohibit which may adversely affect the Investor right of the Partnership directly or indirectly to lease, operate or control any or all of the Theatre Properties, nor shall there be in effect on the Closing Date any order, judgment or decree by any court or other governmental body enjoining, restraining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement or subjecting Star or the Partnership to any liability.
(e) Star shall have received a letter from owning Xxxxx Xxxxx and Xxxxxx Xxxxx, dated as of the Closing Date, in form and substance reasonably satisfactory to the Star Partner, stating that each of Xxxxx Xxxxx and Xxxxxx Xxxxx agrees to perform and be bound by the terms of this Agreement applicable to him or voting her, as if each was a signatory hereto.
(f) Star shall have received owner’s policies of title insurance, in the name of the Partnership at Star’s expense, on American Land Title Association Owner’s Form B (1987), including mechanic’s lien coverage and survey coverage, issued by a reputable title insurance company satisfactory to Star (the “Title Company”), dated the Closing Date in amounts reasonably acceptable to Star and reinsured by reputable title insurance companies (the “Reinsurance Companies”), reasonably satisfactory to Star in amounts reasonably acceptable to Star, which Reinsurance Companies each shall have entered into a direct access agreement with Star, with respect to the Theatre Properties, insuring the Partnership’s leasehold interest in such Theatre Properties, subject only to Permitted Encumbrances (including easements and restrictions of record which do not interfere with the use of any of the Investor Shares;
(2Theatre Properties) the purchase by the Investor of the Investor Shares shall not (i) require the Investor and to no other exceptions, whether standard, printed or any of its affiliates to file a prior notice under the Change in Bank Control Actotherwise, or otherwise seek prior approval or and containing non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor imputation endorsements and such other personsaffirmative insurance as Star may reasonably request.
(g) would represent more than 9.9% of any class of voting securities Star shall have obtained, at its expense, ALTA surveys reasonably satisfactory to Star, of the Company outstanding on Theatre Properties.
(h) Xxxxx shall have delivered to Star the date of Disclosure Schedules required to be delivered by Xxxxx hereunder and the Closing (after giving effect exceptions to the purchase representations and warranties of the Investor Shares contemplated hereby); and
(3) the conditions Xxxxx set forth in Section 10 such Disclosure Schedules shall be reasonably acceptable to Star. If Star does not accept any exception set forth in a proposed Disclosure Schedule received from Xxxxx, Star shall object to such exception by written notice to Xxxxx within ten (10) days after its receipt of the Branch Purchase Agreementsuch Disclosure Schedule. If Star does not object to any exception within such period, other than the condition set forth in this Section 10.3(e10.1(i) of the Branch Purchase Agreement shall be waived with respect to the Company’s acceptance of the proceeds of the Acceptable Financing such exception.
(as defined in the Branch Purchase Agreement), i) There shall have been obtained any necessary consents to the assignment of the Leases to the Partnership, and any necessary waivers of radius restrictions in such Leases.
(j) Xxxxx shall have delivered to Star a letter dated as of the Closing Date, in form and substance reasonably satisfactory to Star, certifying that the conditions specified in this Section 11.1 have been satisfied or waived(other than any conditions waived in writing by Star).
(k) Xxxxx shall have obtained non-disturbance agreements in form and substance satisfactory to Star, from all mortgagees of the Theatre Properties included in the Contributed Assets.
Appears in 2 contracts
Samples: Partnership Agreement (LCE AcquisitionSub, Inc.), Partnership Agreement (Loews Mountainside Cinemas, Inc.)
Conditions. This Agreement is expressly conditioned upon the Commission’s acceptance of all its provisions, without change or condition. If the Commission does not accept this Agreement in its entirety, any party hereto, at its sole option exercised within fifteen (a15) The obligation days of the Investor to consummate the Closing such Commission order, may withdraw from this Agreement, in which event it shall be subject deemed to be null and void and without effect and shall not be relied upon by the condition that all representations and warranties and other statements of Company, Ratepayer Intervenors, Staff, the Company shall be true and correct as of OCA, or any party to this proceeding, or the date Commission, for any purpose. The Commission’s acceptance of this Agreement shall not constitute continuing approval of, or precedent regarding, any particular principle or issue in this proceeding. The discussions that produced this Agreement have been conducted on the explicit understanding that all offers of settlement relating thereto are and shall be confidential, shall be without prejudice to the date position of any party or participant representing any such offer or participating in any such discussion, and are not to be used in connection with any future proceeding or otherwise. The Settling Parties agree that all testimony and supporting documentation should be admitted as full exhibits for purposes of reviewing this Agreement. The Settling Parties’ agreement to admit all testimony without challenge does not constitute agreement by the Settling Parties that the content of the Closing (written testimony is accurate or what weight, if any, should be given to the views of any witness, except those representations and warranties that by their terms speak as may be specifically as provided in this Agreement. The identification of the date resolution of any specific issue in this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would does not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting indicate any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates Settling Parties’ agreement to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company that resolution for purposes of any bank regulation future proceeding, nor does the reference to any other document bind the Settling Parties to the contents of, or recommendations in, that document for purposes of any future proceeding. The Commission’s approval of the recommendations in this Agreement shall not constitute a determination or precedent with regard to any specific adjustments, but rather shall constitute only a determination that the rates resulting from the agreement, and other specific conditions stated in this Agreement are just and reasonable and otherwise consistent with the law. This Agreement may be executed by facsimile and in counterparts, to collectively each of which shall be deemed to ownbe an original, control or have the power to vote securities which (assumingand all of which, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement)taken together, shall have been satisfied or waivedconstitute one agreement binding on all Settling Parties.
Appears in 2 contracts
Samples: Settlement Agreement, Settlement Agreement
Conditions. (a) SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. The obligation respective obligations of each party to effect the Investor to consummate the Closing Merger shall be subject to the condition that all representations and warranties and other statements fulfillment at or prior to the Closing Date of the Company shall be true and correct as of the date of following conditions:
(a) this Agreement and the date transactions contemplated hereby shall have been approved and adopted by the requisite vote of the Closing (except those representations and warranties that by their terms speak specifically as stockholders of the date of this Agreement or some other date shall be true Company and correct as of such date), except for such failures to be so true Parent under applicable law and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.applicable listing requirements;
(b) The obligation the shares of Parent Common Stock issuable in the Company Merger and those to consummate be reserved for issuance upon exercise of stock options or warrants or the Closing shall be subject to the condition that all representations and warranties and other statements conversion of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor convertible securities shall have performed all of its obligations hereunder theretofore to be performed.been authorized for listing on the Nasdaq National Market;
(c) The obligation of each the waiting period applicable to the consummation of the Investor and Merger under the Company to consummate the Closing HSR Act shall be subject to the following additional conditions:have expired or been terminated;
(1d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no provision preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any applicable law or regulation and no judgment, such injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shareslifted);
(2f) the purchase no statute, rule or regulation shall have been enacted by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require government or governmental agency in the Investor or any of its affiliates to become a bank holding company; or (iii) cause United States which would prevent the Investor, together with any other person whose securities consummation of the Company would be aggregated with Merger or make the Investor’s securities of Merger illegal;
(g) Xxxxxx Xxxxxxxx L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Company for purposes of any bank regulation or lawClosing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, to collectively be deemed to own, control or have the power to vote securities which (assuming, effect that the Merger will qualify for a pooling of interests accounting treatment if consummated in accordance with this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Agreement; and
(3h) the conditions set forth in Section 10 each of the Branch Purchase Agreementparties to the Agreement shall have received a letter dated the Closing Date, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect addressed to the Company’s acceptance , from Ernst & Young, LLP regarding such firm's concurrence with the Company's management's conclusions that no conditions exist related to the Company that would preclude the Parent's accounting for the Merger with the Company as a pooling of the proceeds of the Acceptable Financing (as defined interests under Accounting Principles Board Opinion No. 16 if closed and consummated in the Branch Purchase accordance with this Agreement), shall have been satisfied or waived.
Appears in 2 contracts
Samples: Merger Agreement (Allied Waste Industries Inc), Merger Agreement (Allied Waste Industries Inc)
Conditions. (a) The obligation obligations of the Investor Sellers and Purchaser to consummate the Closing transactions contemplated by this Agreement shall be subject to the condition that all representations and warranties and other statements satisfaction or waiver, on or before the Closing Date, of the Company shall be true following conditions:
(i) All waiting periods (and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinextension thereof) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect under laws applicable to the transactions contemplated by this Agreement shall have expired or been earlier terminated.
(ii) There shall be no injunction, restraining order or decree of any nature of any court or governmental authority that is in effect that restrains or prohibits the Branch Purchase consummation of the transactions contemplated by this Agreement or imposes conditions on such consummation not otherwise provided for herein.
(iii) Neither Purchaser nor any Seller shall have been advised by any United States federal government agency (which advisory has not been officially withdrawn on or prior to the Closing Date) that such government agency is investigating the transactions contemplated by this Agreement to determine whether to file or commence any litigation that seeks or would seek to enjoin, restrain or prohibit the consummation of the transactions contemplated by this Agreement. In the event any of the above conditions is not satisfied on or before the Closing, either Forestar Petroleum, Forestar (USA) or Purchaser will have the right, exercisable at its sole election, to terminate this Agreement by delivering written notice to the other Parties before the Closing, whereupon Escrow Agent will return the Xxxxxxx Money to Purchaser, and the Parties will have no further rights or obligations hereunder (except as otherwise expressly provided herein).
(b) The obligation Unless waived by Purchaser, in addition to any other conditions set forth in this Agreement, the obligations of Purchaser under this Agreement are expressly made subject to the fulfillment in all respects of the following conditions precedent:
(i) the truth and accuracy as of the Closing Date, in all material respects, of each and every warranty and representation herein made by any Seller;
(ii) Each Seller’s timely performance of and compliance with, in all material respects, each and every term, condition, agreement, restriction and obligation to be performed and complied with by such Seller under this Agreement;
(iii) The aggregate acreage of all Title Objection Property, Title Failure Property and Environmental Property shall not exceed twenty percent (20%) of the acreage of the Timberlands;
(iv) Purchaser’s receipt of a binding commitment from the Title Company to issue a title insurance policy insuring Purchaser’s title to the Property following the Closing, subject only to the Permitted Encumbrances; and
(v) Sellers’ obtaining of all corporate approvals, consents and authorizations as may be required for Sellers to consummate the Closing transaction contemplated by this Agreement. In the event any of the above conditions is not satisfied on or before the Closing, Purchaser will have the right, exercisable at Purchaser’s sole election, to exercise the remedies described in Section 15(b). Notwithstanding the foregoing sentence, in the event of either Seller’s failure to fulfill any condition precedent set forth in Section 14(b)(ii), Purchaser shall be subject provide written notice to such Seller and such Seller shall have seven (7) days from receipt of such notice to fulfill the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such dateprecedent before Purchaser may exercise any remedies described in Section 15(b); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation Unless waived by a Seller, the obligations of each of the Investor and the Company to consummate the Closing shall be such Seller under this Agreement are expressly made subject to the fulfillment in all respects of the following additional conditionsconditions precedent:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2i) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor truth and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date accuracy as of the Closing (after giving effect to the purchase Date, in all material respects, of the Investor Shares contemplated hereby)each and every warranty and representation herein made by Purchaser; and
(3ii) Purchaser’s timely performance of and compliance with, in all material respects, each and every term, condition, agreement, restriction and obligation to be performed and complied with by Purchaser under this Agreement.
(iii) The aggregate acreage of all Title Objection Property shall not exceed ten percent (10%) of the acreage of the Timberlands In the event any of the above conditions is not satisfied on or before the Closing, either Seller will have the right, exercisable at such Party’s sole election, to exercise the remedies described in Section 15(a), provided that if either Seller elects to exercise such remedy, the other Seller shall be deemed to have made an identical election. Notwithstanding the foregoing sentence, in the event of Purchaser’s failure to fulfill any condition precedent set forth in Section 10 14(c)(i) or (ii), Sellers shall provide written notice to Purchaser and Purchaser shall have seven (7) days from receipt of the Branch Purchase Agreement, other than such notice to fulfill the condition set forth precedent before Sellers may exercise any remedies described in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement15(c), shall have been satisfied or waived.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Forestar Group Inc.), Purchase and Sale Agreement (Forestar Group Inc.)
Conditions. (a) Section 6.1 Conditions to Each Party’s Obligation To Effect the Merger. The respective obligation of each party to effect the Investor to consummate the Closing Merger shall be subject to the condition that satisfaction on or prior to the Closing Date of each of the following conditions (any or all of which may be waived by the parties hereto in writing, in whole or in part, to the extent permitted by applicable Law):
(i) This Agreement shall have been adopted and approved by the Company Required Vote and (ii) the Parent Proposal shall have been approved and adopted by the Required Parent Vote;
(b) No statute, rule, order, decree or regulation shall have been enacted or promulgated, and no action shall have been taken, by any Governmental Entity of competent jurisdiction which temporarily, preliminarily or permanently restrains, precludes, enjoins or otherwise prohibits the consummation of the Merger or makes the Merger illegal;
(c) Other than filing the Certificate of Merger in accordance with the DGCL, all authorizations, consents and approvals of all Governmental Entities required to be obtained prior to consummation of the Merger shall have been obtained, except for such authorizations, consents, and approvals the failure of which to be obtained individually or in the aggregate has not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on any party to this Agreement;
(d) The S-4 shall have been declared effective, and no stop order suspending the effectiveness of the S-4 shall be in effect and no proceedings for such purpose shall be pending before or threatened by the SEC; and
(e) The shares of Parent Common Stock issuable to the stockholders of the Company in the Merger and to the holders of the Company Options, Company Stock Awards, and Performance Stock Awards shall have been authorized for listing on Nasdaq, subject to official notice of issuance.
Section 6.2 Conditions to the Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions:
(a) (i) The representations and warranties of Parent set forth in Sections 4.2, 4.3, 4.5(a) and other all statements of the Company set forth in Section 4.27 (relating to Taxes) shall be true and correct in all material respects both at and as of the date of this Agreement and the date at and as of the Closing Date, as if made at and as of such time (except those to the extent expressly made as of an earlier date, in which case as of such date); and (ii) the representations and warranties that by their terms speak specifically of each of Parent set forth in this Agreement (other than the representations and warranties set forth in Sections 4.2, 4.3, 4.5(a) and all statements set forth in Section 4.27 (relating to Taxes)), shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) both at and as of the date of this Agreement or some other date shall be true and correct at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except for where the failure of such failures representations and warranties to be so true and correct (without giving effect to any qualification limitation as to materiality “materiality” or “Material Adverse Effect contained Effect” set forth therein) as individually or in the aggregate has not had, and would not have, individually in the aggregatebe reasonably likely to have or result in, a Material Adverse EffectEffect on Parent. The Company shall have received a certificate signed on behalf of Parent by each of two senior executive officers of Parent to the foregoing effect;
(b) Parent shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time pursuant to the terms of this Agreement, and the Company shall have received a certificate signed on behalf of Parent by the Chief Executive Officer or Chief Financial Officer of Parent to such effect;
(c) There shall not be pending any suit, action or proceeding by any Governmental Entity seeking to restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement;
(d) The Company shall have received the opinion of Xxxxxxx Xxxxx LLP, counsel to the Company, in form and substance reasonably satisfactory to the Company, on the date on which the S-4 is filed and on the Closing Date, in each case dated as of such respective date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent and the Company, all of which are consistent with the state of facts existing as of the date on which the S-4 is filed and the Effective Time, as applicable, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.2(d), Xxxxxxx Xxxxx LLP shall have received and may rely upon the certificates and representations referred to in Section 5.13(d);
(e) Parent must have delivered to its counsel, the Company and the Company’s counsel a certificate signed on behalf of Parent by a duly authorized officer of Parent certifying the representations set forth in Section 4.27 and as otherwise reasonably requested by the Company’s or Parent’s tax counsel;
(f) During the period from the date of execution of this Agreement until the Effective Time, there shall not have occurred a Material Adverse Effect on Parent;
(g) On a pro forma basis and after giving effect to all transactions contemplated by this Agreement to occur on the Closing Date, (i) Parent must have funds equal to at least the amount set forth on Section 6.2(g)(i) of the Parent Disclosure Letter available for borrowing under all tests and all provisions set forth in its credit agreements, as in effect on the Closing Date, (ii) no default or event of default would exist under such credit agreements of Parent, and (iii) additional debt in an amount equal to at least the amount set forth on Section 6.2(g)(iii) of the Parent Disclosure Letter would not result in a default or event of default under such credit agreements of Parent and the Company shall have received a certificate of Parent signed on its behalf by its Chief Executive Officer or Chief Financial Officer to such effect; and
(h) To the condition extent that any notes remain outstanding under the Parent Indenture, Parent shall have complied with all the applicable provisions of the Parent’s Indenture so that on a pro forma basis and after giving effect to all transactions contemplated by this Agreement, no default or event of default will have occurred under the Parent Indenture, and the Company shall have received a certificate of Parent signed on its behalf by its Chief Executive Officer or Chief Financial Officer to such effect. In addition, on a pro forma basis and after giving effect to all transactions contemplated by this Agreement, no default or event of default will have occurred under the Company Indenture (excluding any defaults or events of default in existence under the Company Indenture immediately prior to the Effective Time); provided that, to the extent any notes remain outstanding under the Company Indenture, the Company shall have complied with all the applicable provisions of the Company’s Indenture prior to the Effective Time, such that the Company’s failure to comply with the applicable provisions of the Company’s Indenture shall not have caused the default or event of default occurring on a pro forma basis and after giving effect to all transactions contemplated by this Agreement.
Section 6.3 Conditions to Obligations of Parent to Effect the Merger. The obligations of Parent to effect the Merger are further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions:
(a) (i) The representations and warranties of the Company set forth in Sections 3.2, 3.3 and 3.5(a) and all statements set forth in Section 3.26 (relating to Taxes) shall be true and correct in all material respects both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); and (ii) the representations and warranties of the Company set forth in this Agreement (other than the representations and warranties set forth in Sections 3.2, 3.3 and 3.5(a) and the statements set forth in Section 3.26) shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) individually or in the aggregate has not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on the Company. Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect;
(b) The Company shall have performed in all material respects all each of its obligations hereunder theretofore under this Agreement required to be performed (without giving effect by it at or prior to any qualification as the Effective Time pursuant to materiality or Material Adverse Effect contained therein); the terms of this Agreement, and the condition that since the date hereof no Material Adverse Effect Parent shall have occurred and received a certificate signed on behalf of the Company by the Chief Executive Officer or Chief Financial Officer to such effect;
(c) There shall not be continuing with pending any suit, action or proceeding by any Governmental Entity seeking to (i) prohibit or limit in any material respect to either (x) the ownership or operation by the Company or (y) Parent or any of their respective affiliates of a substantial portion of the business or assets of the Company after giving effect and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement or (ii) restrain, preclude, enjoin or prohibit the Branch Purchase Merger or any of the other transactions contemplated by this Agreement.;
(bd) The obligation Parent shall have received the opinion of Xxxxxxxx & Knight, LLP, counsel to Parent, in form and substance reasonably satisfactory to Parent, on the Company to consummate date on which the S-4 is filed and on the Closing shall be subject to Date, in each case dated as of such respective date, rendered on the condition that all basis of facts, representations and warranties assumptions set forth in such opinion and other statements the certificates obtained from officers of Parent and the Investor shall be true and correct Company, all of which are consistent with the state of facts existing as of the date on which the S-4 is filed or the Effective Time, as applicable, to the effect that (i) the Merger will qualify as a reorganization within the meaning of this Agreement and the date Section 368(a) of the Closing Code and (except those representations ii) the Company and warranties that by their terms speak specifically as Parent will each be a “party to the reorganization” within the meaning of Section 368 of the date of Code. In rendering the opinion described in this Agreement or some other date shall be true and correct as of such dateSection 6.3(d); and the condition that the Investor , Xxxxxxxx & Xxxxxx, LLP, shall have performed all of its obligations hereunder theretofore received and may rely upon the affiliate letters, certificates and representations referred to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharesin Section 5.13(d);
(2e) the purchase by the Investor The number of the Investor Dissenting Shares shall not exceed 10% of the outstanding shares of Company Common Stock;
(if) require All material consents and approvals of any Person that the Investor Company or Parent or any of their respective Subsidiaries is required to obtain in connection with the consummation of the Merger, including consents and approvals from parties to loans, contracts, leases or other agreements, shall have been obtained, and a copy of each such consent and approval shall have been provided to Parent at or prior to the Closing, except for such consents and approvals the failure of which to be obtained individually or in the aggregate would not be reasonably likely to have or result in a Material Adverse Effect on the Company or Parent, as applicable;
(g) The Company must have delivered to its affiliates to file counsel, Parent and Parent’s counsel a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities certificate signed on behalf of the Company would be aggregated with the Investor’s securities by a duly authorized officer of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have certifying the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities representations set forth in Section 3.26 and as otherwise reasonably requested by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Company’s or Parent’s tax counsel; and
(3h) During the conditions set forth in Section 10 period from the date of execution of this Agreement until the Branch Purchase AgreementEffective Time, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to there shall not have occurred a Material Adverse Effect on the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Petrohawk Energy Corp), Agreement and Plan of Merger (KCS Energy Inc)
Conditions. 3.01 Completion is conditional upon the following conditions being satisfied on or before 31 December 2007 or such other date as otherwise agreed by the parties hereto (the “Longstop Date”):
(a) The obligation of the Investor to consummate the Closing shall be subject obtaining in terms acceptable to the condition that Purchaser, of all representations consents, approvals, clearances and warranties authorisations of any relevant governmental authorities or other relevant third parties in the PRC as may be necessary for the execution and other statements implementation of this Supplemental Agreement;
(b) the Company receiving all relevant consents and approvals from third parties as may be necessary in connection with the proposed change in shareholding of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition ensure that the Company shall have performed in maintains all material respects all its existing contractual and other rights following the transfer of its obligations hereunder theretofore the Sale Interest (including, without limitation, the consent of the existing bankers of the Company to be performed continue to provide the existing banking facilities to the Company following the transfer of the Sale Interest);
(without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (xc) the Company or (ypassing at an extraordinary general meeting of the Vendor of ordinary resolution(s) the Company after giving effect to approving this Supplemental Agreement and the transactions contemplated by this Supplemental Agreement by the Branch Purchase shareholders of the Vendor (excluding such shareholders who shall be required to abstain from voting under the Listing Rules); and
(d) completion of the Namtek Acquisition Agreement becoming unconditional in all respects (save in respect of any condition relating to completion of this Supplemental Agreement).
3.02 The Vendor will use all reasonable endeavours (so far as it lies within its powers) to procure the satisfaction of the Conditions as soon as reasonably practicable and in any event before the Longstop Date and will promptly notify the Purchaser when each of the said Conditions have been satisfied.
(a) If at any time the Vendor becomes aware of a fact or circumstance that might prevent a Condition being satisfied, it will immediately inform the Purchaser.
(b) The obligation If at any time the Purchaser becomes aware of a fact or circumstance that might prevent a condition being satisfied, it will immediately inform the Vendor.
3.04 If any of the Company to consummate Conditions have not been satisfied on or before the Closing shall be subject to the condition that Longstop Date then this Supplemental Agreement will immediately terminate and all representations rights and warranties and other statements obligations of the Investor parties shall cease immediately upon termination.
3.05 For avoidance of doubt, the Purchaser agrees and acknowledges that the formal registration documents to be true and correct as issued by the relevant PRC governmental authorities evidencing the Purchaser or its nominee (which may be any of the date Purchaser’s subsidiaries) (or the SPV (as defined in Clause 3.06) as the sole investor of this Agreement Jetup (the “Jetup Approval Documents”) may not be available at Completion and that the date absence of the Closing (except those representations and warranties Jetup Approval Documents shall not prevent this Supplemental Agreement becoming unconditional nor the parties proceeding to Completion PROVIDED that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit Vendor can produce an undertaking from the Investor from owning or voting any Vendor to the Purchaser that it will use its best endeavours to procure the issuance of the Investor Shares;
Jetup Approval Documents; and that (2) the purchase by Vendor hereby agrees and acknowledges that the Investor Sale Interest shall be so held on trust for the benefits of the Investor Shares shall not Purchaser (ior the SPV) require from Completion until the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities issuance of the Company would be aggregated with Jetup Approval Documents.
3.06 The Purchaser may request the Investor’s securities Vendor to procure the transfer of the Company for purposes of any bank regulation Sale Interest to a holding company (“SPV”) prior to Completion, in which case the Vendor shall also deliver to or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities order of the Company outstanding on Purchaser at Completion pursuant to Clause 4.01(a) evidence satisfactory to the date Purchaser that good title to the entire equity capital of the Closing (after giving effect SPV has been passed to the purchase of Purchaser and the Investor Shares contemplated hereby); and
(3) Purchaser has been registered as the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedholder thereof.
Appears in 2 contracts
Samples: Agreement Supplemental to the Agreement Dated 24 September 2007 (Nam Tai Electronics Inc), Supplemental Agreement (Nam Tai Electronics Inc)
Conditions. The obligation of Seller, on one hand, and Purchaser, on the other hand, to consummate the transaction contemplated hereunder is contingent upon the following:
(a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all Each party’s representations and warranties and other statements of the Company contained herein shall be true and correct in all material respects as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.Date;
(b) The obligation As of the Company to consummate the Closing Date, each party shall have performed its obligations hereunder and all deliveries made at Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.tendered;
(c) The obligation No actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of each of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against the Investor other party that would materially and adversely affect the Company other party’s ability to consummate the Closing perform its obligations under this Agreement shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharesexist;
(2d) No pending or threatened action, suit or proceeding with respect to the purchase other party before or by any court or administrative agency which seeks to restrain or prohibit, or to obtain damages or a discovery order with respect to this Agreement or the Investor consummation of the Investor Shares transaction contemplated hereby shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)exist; and
(3e) Seller will pursue the conditions set forth eviction of all tenants on subject property (if any) and no leases shall survive the Closing (if any). So long as neither party is not in Section 10 default hereunder, if any condition to a party’s obligations to proceed with the Closing hereunder has not been satisfied as of the Branch Purchase AgreementClosing Date, such party may, in its sole discretion, terminate this Agreement by delivering written notice to the other than party on or before the condition set forth Closing Date. Or, such party may elect to close, not withstanding the non-satisfaction of such condition, in Section 10.3(e) which event such party shall be deemed to have waived any such condition. There shall be no liability on the part of the Branch Purchase Agreement with respect other party hereto for breaches of representations and warranties of which the party electing to the Company’s acceptance close had knowledge as of the proceeds of the Acceptable Financing (as defined Closing. Nothing in the Branch Purchase Agreement), foregoing shall relieve a party from any liability it would otherwise have been satisfied or waivedif the failure of such party to satisfy a condition also constitutes a default by such party hereunder.
Appears in 2 contracts
Samples: Purchase and Sales Agreement (Notes Live, Inc.), Purchase and Sale Agreement (Fresh Vine Wine, Inc.)
Conditions. (a) The obligation obligations of the Investor each party to consummate the Blackstone Repurchase and to effectuate the Closing shall be are subject to the condition that all representations and warranties and other statements closing of the Company shall be true Blackstone Secondary Offering and correct as the delivery to the underwriters of the date of this Agreement shares purchased in the Blackstone Secondary Offering and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof Purchase Price per share being no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementgreater than $ .
(b) The obligation obligations of the Company to consummate the Blackstone Repurchase and to effectuate the Closing shall be are subject to the condition that all the representations and warranties and other statements of the Investor Blackstone set forth in this Agreement shall be true and correct in all material respects on and as of the date of this Agreement Closing Date as though made on and the date as of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) The obligation obligations of each of the Investor and the Company Blackstone to consummate the Blackstone Repurchase and to effectuate the Closing shall be are subject to the following additional conditions:
(1) no provision of any applicable law or regulation condition that the representations and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities warranties of the Company would set forth in this Agreement shall be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor true and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding correct in all material respects on the date and as of the Closing Date as though made on and as of the Closing Date.
(d) The obligations of each party to consummate the Blackstone Repurchase and to effectuate the Closing are subject to the condition that immediately after giving effect to the purchase consummation of the Investor Shares contemplated hereby); and
Blackstone Repurchase (3i) the conditions set forth in Section 10 present fair value and fair saleable value of the Branch Purchase Agreement, other assets of the Company is not less than the condition set forth in Section 10.3(e) total amount of the Branch Purchase Agreement with respect to the Company’s acceptance liabilities (including contingent liabilities); (ii) the Company should be able to pay its debts as they become due and mature; (iii) the Company does not engage in any business or transaction, for which its property would constitute unreasonably small capital; and (iv) the actual, current value of the proceeds of Company’s assets minus its liabilities shall be greater than the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedCompany’s statutory capital.
Appears in 2 contracts
Samples: Share Repurchase Agreement (SeaWorld Entertainment, Inc.), Share Repurchase Agreement (SeaWorld Entertainment, Inc.)
Conditions. 5.1 Conditions to the Obligations of Parent, the Purchaser and the Company. The obligations of Parent, the Purchaser and the Company to consummate the Merger are subject to the satisfaction, at or before the Effective Time, of each of the following conditions:
(a) The Purchaser shall have purchased all Shares duly tendered and not withdrawn pursuant to the terms of the Offer and subject to the terms thereof; provided that the obligation of the Investor Parent and the Purchaser to consummate effect the Closing Merger shall not be subject conditioned on the fulfillment of the condition set forth in this Section 5.1 (a) if the failure of the Purchaser to purchase the Shares pursuant to the condition that all representations and warranties and other statements Offer shall have constituted a breach of the Company shall be true and correct as of the date Offer or of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation consummation of the Merger shall not be precluded by any order, decree or injunction of a court of competent jurisdiction (each party agreeing to use its best efforts to have any such order reversed or injunction lifted), and there shall not have been any action taken or any Law enacted, promulgated or deemed applicable to the Merger by any Governmental Entity that makes consummation of the Merger illegal.
(c) If required by Certificate of Incorporation and By-Laws of the Company and the DGCL, this Agreement shall have been approved and adopted by the affirmative vote of the holders of the requisite number of shares of Common Stock in accordance with the Certificate of Incorporation and By-Laws of the Company and the DGCL.
(x) Xxx applicable waiting period under the HSR Act shall have expired or been terminated.
5.2 Conditions to the Obligations of Parent and the Purchaser. The obligations of Parent and the Purchaser to consummate the Closing shall be Merger are subject to the condition that all representations and warranties and other statements satisfaction, at or before the Effective Time, of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing following conditions:
(except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor a) The Company shall have performed all of its obligations hereunder theretofore material agreements and covenants contained in this Agreement required to be performedperformed on or prior to the Effective Time and the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of (i) the date made and (ii) except in the case of representations and warranties expressly made solely with reference to a particular date, the Effective Time, and Parent and the Purchaser shall have received a certificate of an executive officer of the Company to such effect.
(b) The Company shall not have received notice from the holder or holders of more than 10% of the outstanding Shares, determined on a fully diluted basis, that such holder or holders have exercised or intend to exercise its or their appraisal rights under Section 262 of the DGCL.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase 179,656 Shares previously held by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Trust shall have been satisfied or waivedreturned to the Company and canceled, as described in the third recital to this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Cambrex Corp), Merger Agreement (Cambrex Corp)
Conditions. (a) The obligation obligations of the Investor Purchaser to consummate purchase the Closing Purchased Shares shall be subject to the condition that satisfaction, on or before the Closing Date, of each of the following conditions precedent (each of which is for the Purchaser’s exclusive benefit and may be waived by the Purchaser, in whole or in part at its option, and any one or more of which, if not satisfied or waived, will relieve the Purchaser of any obligation under this Agreement):
(a) each of the acts, undertakings, obligations, agreements and covenants of the Vendors and the Targets under this Agreement or under any Closing Document to be performed or complied with on or before the Closing Date shall have been duly performed or complied with in all material respects, and the Purchaser shall have received a certificate of the Vendors addressed to the Purchaser and dated as of the Closing Date confirming same. The acceptance by the Purchaser, in its sole discretion, of a certificate which does not correspond in all respects to the terms of the preceding sentence shall be deemed to constitute a variation or amendment, to the extent therein described, of the provisions of this Agreement or any Closing Document;
(b) each of the representations and warranties and other statements made in favour of the Company Purchaser pursuant to this Agreement shall be true true, complete and correct as of the date of this Agreement and the date of the Closing in all material respects (except that those representations and warranties that by their terms speak specifically which are qualified as of to material, materiality, Material Adverse Change or similar expressions, or are subject to the date of this Agreement same or some other date similar type exceptions, shall be true true, complete and correct in all respects) on the Closing Date as if made on and as of such date), except for such failures and the Purchaser shall have received a certificate of the Vendors addressed to the Purchaser and dated as of the Closing Date confirming same. The acceptance by the Purchaser, in its sole discretion, of a certificate which does not correspond in all respects to the terms of the preceding sentence shall be deemed to be so true and correct a waiver of any representation or warranty contained in this Agreement to the extent therein described;
(without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinc) as would there shall not havehave occurred, individually in the aggregatejudgment of the Purchaser, acting reasonably, a Material Adverse Effect; Change since the condition execution of this Agreement;
(d) the Purchaser shall be satisfied that the Company no Claim or Threatened Claim shall have performed been taken, made, threatened or instituted, whether or not having the force of Law, and no Law or Order shall have been proposed, enacted, promulgated, issued or applied: (i) to prohibit or impose any limitation or condition on the completion of the transactions contemplated herein or in any Closing Document or the right of the Purchaser to own or exercise full rights of ownership of all of the Purchased Shares; or (ii) which, if the transactions contemplated herein were completed, could reasonably be expected to result in a Material Adverse Change or prevent the Targets from carrying on, in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification respects, the Business as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharespresently carried on;
(2e) the purchase by Purchase shall be satisfied with the Investor results of its due diligence relating to the Targets and the Business;
(f) all Required Third Party Consents shall have been obtained;
(g) the Pre-Closing Reorganization shall have been duly completed to the satisfaction of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Purchaser; and
(3h) the conditions set forth Purchaser shall be satisfied, acting reasonably, that no fact or circumstance identified in Section 10 its confirmatory due diligence of the Branch Purchase AgreementTargets, other than their respective assets and the condition set forth Business would or could result in Section 10.3(e) of a Material Adverse Change or materially and adversely affect, delay or impair the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedtransactions contemplated hereby.
Appears in 2 contracts
Samples: Share Purchase Agreement (Argo Blockchain PLC), Share Purchase Agreement (Argo Blockchain PLC)
Conditions. (a) The obligation obligations of the Investor Investment Entities to consummate exchange Pfizer Obligations for Shares at the First Exchange Closing and any Optional Closing shall be subject to the condition that all satisfaction (or waiver) of the following conditions:
(i) Pfizer shall have furnished to the Investment Entities an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to Pfizer, dated the applicable Closing Date in the form of Exhibit B hereto;
(ii) the Private Letter Ruling (as defined in the Form of Global Separation Agreement, filed as Exhibit 10.1 to Amendment No. 1 to the Registration Statement) shall remain in full force and effect and shall not have been revoked in whole or in part as of the applicable Closing Date;
(iii) no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, or other legal restraint or prohibition shall be in effect preventing the transactions contemplated to occur at the First Exchange Closing or the Optional Exchange Closing, as applicable;
(iv) (A) the representations and warranties and other statements of the Company Pfizer in this Agreement shall be true and correct in all respects on and as of the date applicable Closing Date, with the same effect as if made on the applicable Closing Date, (B) Pfizer shall have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the applicable Closing Date and (C) Pfizer shall have furnished to the Investment Entities a certificate of this Agreement Pfizer in a form reasonably satisfactory to the Investment Entities, signed by an authorized officer of Pfizer, in his or her capacity as an officer of Pfizer and not in his or her individual capacity, and dated the date of applicable Closing Date, to the Closing effect set forth in clauses (except those A) and (B) above;
(A) the representations and warranties that by their terms speak specifically as of the date of Zoetis in this Agreement or some other date shall be true and correct in all respects on and as of such date)the applicable Closing Date, except for such failures to be so true and correct with the same effect as if made on the applicable Closing Date, (without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinB) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company Zoetis shall have performed in complied with all material respects the agreements and satisfied all of the conditions on its obligations hereunder theretofore part to be performed or satisfied at or prior to the applicable Closing Date and (without giving C) Zoetis shall have furnished to the Investment Entities a certificate of Zoetis in a form reasonably satisfactory to the Investment Entities, signed by an Executive Vice President, Corporate Secretary or Treasurer of Zoetis and dated the applicable Closing Date, to the effect to any qualification as to materiality or Material Adverse Effect contained therein); set forth in clause (A) and (B) above;
(vi) the Underwriting Agreement has been duly executed and delivered and shall remain in full force and effect and the condition that since conditions to the date hereof no Material Adverse Effect shall have occurred obligations of the Underwriters to purchase and be continuing pay for the applicable Shares as set forth in Section 9(a), (b) (with respect to either Pfizer and Zoetis only), (xc), (d), (e)(x), (e)(y), (f)-(h), (k)-(n), (p) and (r) (with respect to Pfizer and Zoetis only) of the Company Underwriting Agreement shall have been satisfied or waived (y) the Company after giving effect other than those conditions that by their nature cannot be satisfied prior to the transactions contemplated applicable closing pursuant to the Underwriting Agreement); and
(vii) Pfizer shall have furnished to each Investment Entity a properly completed and executed certification of non-foreign status substantially in the form set forth in Treasury Regulations Section 1.1445-2(b)(2)(iv). In the event that any of the conditions set forth in this clause (a) shall not have been fulfilled (or waived by the Branch Purchase Investment Entities) on the First Exchange Closing Date, this Agreement may be terminated by the Investment Entities by delivering a written notice of termination to Pfizer and Zoetis. The parties acknowledge and agree that any of their respective rights and/or obligations under the Underwriting Agreement, including Sections 6, 10 and 11 thereof, shall not be affected by any such termination of this Agreement.
(b) The obligation obligations of Pfizer to exchange Shares for Pfizer Obligations at the Company to consummate the First Exchange Closing and any Optional Closing shall be subject to the condition that all satisfaction (or waiver) of the following conditions:
(i) Each Investment Entity shall have furnished to Pfizer an opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel to each of the Investment Entities, dated the applicable Closing Date in the form of Exhibit C hereto.
(ii) (A) the representations and warranties and other statements of the Investor each Investment Entity in this Agreement shall be true and correct in all respects on and as of the date applicable Closing Date, with the same effect as if made on the applicable Closing Date, (B) each Investment Entity shall have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the applicable Closing Date and (C) each Investment Entity shall have furnished to Pfizer a certificate of this Agreement such Investment Entity in a form reasonably satisfactory to Pfizer, signed by an authorized officer and dated the date applicable Closing Date, to the effect set forth in clauses (A) and (B) above;
(iii) the Private Letter Ruling (as defined in the Form of Global Separation Agreement, filed as Exhibit 10.1 to Amendment No. 1 to the Closing (except those representations Registration Statement) shall remain in full force and warranties that by their terms speak specifically effect and shall not have been revoked in whole or in part as of the date applicable Closing Date;
(iv) no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any federal, state, local or foreign government or any court of this Agreement competent jurisdiction, administrative agency or some commission or other date governmental authority or instrumentality, domestic or foreign, or other legal restraint or prohibition shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit in effect preventing the transactions contemplated hereby to occur at the First Exchange Closing or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActOptional Exchange Closing, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)as applicable; and
(3v) the Underwriting Agreement has been duly executed and delivered and shall remain in full force and effect and the conditions to the obligations of the Underwriters to purchase and pay for the applicable Shares as set forth in Section 9(b) (with respect to the Investment Entities only), 9(d), (e)(z), (i)-(k), (o) and (r) (with respect to the Investment Entities only) of the Underwriting Agreement shall have been satisfied or waived (other than those conditions that by their nature cannot be satisfied prior to the applicable closing pursuant to the Underwriting Agreement). In the event that any of the conditions set forth in Section 10 this clause (b) shall not have been fulfilled (or waived by Pfizer) on the First Exchange Closing Date, this Agreement may be terminated by Pfizer by delivering a written notice of termination to the Branch Purchase Investment Entities and Zoetis. The parties acknowledge and agree that any of their respective rights and/or obligations under the Underwriting Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement)including Sections 6, 10 and 11 thereof, shall have been satisfied or waivednot be affected by any such termination of this Agreement.
Appears in 2 contracts
Samples: Debt for Equity Exchange Agreement, Debt for Equity Exchange Agreement (Zoetis Inc.)
Conditions. As a material inducement for the Purchaser to enter into this Agreement, Seller hereby makes the following acknowledgments and representations:
(a) The obligation of That, it owns the Investor to consummate the Closing shall be subject tradenames to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase AgreementProducts described herein.
(b) The obligation execution and delivery of this Agreement, the consummation of the Company transactions herein contemplated and compliance with the terms of the Agreement will not result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, other agreement or instrument to consummate which the Closing shall be subject Seller is a party or by which it or its assets are bound; or to the condition that all representations best of Seller's knowledge, any applicable regulation, judgment, order or decree of any governmental instrumentality or court, domestic or foreign, having jurisdiction over the Seller or its properties;
(c) There are presently no contingent liabilities, factual circumstances, threatened or pending litigation, contractually assumed obligations or unasserted possible claims which might result in a material adverse change with respect to the premises being purchased herein;
(d) The execution, delivery and warranties and other statements of the Investor shall be true and correct as of the date performance of this Agreement and the date transactions contemplated hereby do not require the consent, authority or approval of any other person or entity except such as have been obtained;
(e) To the best of Sellers knowledge and belief no transactions have been entered into either by or on behalf of the Closing Seller, other than in the ordinary course of business nor have any acts been performed which would adversely affect goodwill with respect to the premises being purchased herein;
(except those representations f) The entering into of this Agreement and warranties that the performance thereof has been duly and validly authorized by their terms speak specifically all required corporate action, and does not require any consents, corporate, governmental or otherwise, other than such as have been unconditionally obtained;
(g) The trademark/tradename, documentation, a copy of which is annexed hereto and made a part hereof as Exhibit A accurately reflects the current ownership and registration of the Seller and no additional information is required in order to render the information so provided not misleading;
(h) As of the date of the execution of this written Agreement or some other date no events have occurred nor have any facts been discovered which materially alter in detrimental manner the trademarks of the Seller;
(i) The foregoing representations and warranties do not contain any untrue statements nor do they fail to disclose information necessary in order to render the information provided not misleading;
(j) The foregoing representations and warranties shall also be true true, complete and correct accurate on and as of the Closing Date, as if initially provided on such date); , the Seller hereby covenanting and agreeing to do all things required therefore (including within such obligation the condition that abstinence from any actions, the Investor shall have performed all performance of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting which would render any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Actforegoing representations and warranties inaccurate, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date as of the Closing (after giving effect to the purchase of the Investor Shares contemplated herebyDate); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.;
Appears in 2 contracts
Samples: License Agreement (Hispanica International Delights of America, Inc.), License Agreement (Hispanica International Delights of America, Inc.)
Conditions. (a) The obligation If Purchaser has actual knowledge, or should ---------- have actual knowledge by inspection of the Investor Property or of the public records at or before the Closing, that (i) any representation of Seller hereunder is untrue, as of the date represented, or (ii) Seller has failed to consummate the Closing perform, observe or comply with any covenant, agreement or condition to be performed hereunder, Purchaser shall notify Seller of such within five (5) days after discovery by Purchaser. Purchaser's failure to so notify Seller shall be subject deemed to constitute Purchaser's waiver of same as a condition to Closing and otherwise.
(b) In the condition event that all (A) any of Seller's representations and warranties and other statements of the Company shall be made in Section 3.1 are not true and correct as of the date of this Agreement (and for the purposes hereof a representation shall be untrue only if factually untrue and having a material adverse business or legal impact on Purchaser), and (B) Purchaser has actual knowledge, or should have actual knowledge by inspection of the Property or of the public records at or before the Closing that any of Seller's representations referred to in clause (A) of this sentence are untrue, then Purchaser may, as its sole remedy (whether at law or in equity), all other claims for damages or specific performances being hereby expressly waived by Purchaser, elect to terminate this Agreement, and the date sole liability of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date Seller shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect return to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in Purchaser the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the InvestorDeposit, together with any other person whose securities interest accrued thereon, and thereupon, this Agreement shall be null and void and the parties hereto shall be relieved of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for all further obligations and liability under this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to those obligations and liabilities which expressly survive the Company’s acceptance termination of the proceeds of the Acceptable Financing (as defined in the Branch Purchase this Agreement), shall have been satisfied or waived.
Appears in 2 contracts
Samples: Sale Agreement (Sl Green Realty Corp), Agreement of Sale and Purchase (Sl Green Realty Corp)
Conditions. (a) The obligation obligations of the Investor Debt Holders to consummate exchange MMC Debt Obligations for Shares at the Closing shall be subject to the condition that all satisfaction (or waiver) of the following conditions:
(i) the Private Letter Ruling (as defined in the Form of Separation and Distribution Agreement filed as Exhibit 10.3 to the Registration Statement) shall remain in full force and effect and shall not have been revoked in whole or in part as of the applicable Closing Date;
(ii) no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, or other legal restraint or prohibition shall be in effect preventing the transactions contemplated to occur at the Closing;
(iii) (A) the representations and warranties and other statements of the Company MMC in this Agreement shall be true and correct in all respects on and as of the date of this Agreement Closing Date, with the same effect as if made on the applicable Closing Date, and (B) MMC shall have complied with all the date of agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the applicable Closing Date;
(except those iv) (A) the representations and warranties that by their terms speak specifically as of the date of MMI in this Agreement or some other date shall be true and correct in all respects on and as of such date)the applicable Closing Date, except for such failures to be so true with the same effect as if made on the applicable Closing Date, and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinB) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company MMI shall have performed in complied with all material respects the agreements and satisfied all of the conditions on its obligations hereunder theretofore part to be performed or satisfied at or prior to the applicable Closing Date;
(without giving v) the Underwriting Agreement shall have been duly executed and delivered and shall remain in full force and effect and the conditions to any qualification the obligations of the Underwriters to purchase and pay for the applicable Shares as set forth in the Underwriting Agreement shall have been satisfied or waived (other than those conditions that by their nature cannot be satisfied prior to materiality or Material Adverse Effect contained thereinthe applicable closing pursuant to the Underwriting Agreement); and the condition that since the date hereof no Material Adverse Effect and
(vi) MMC shall have occurred furnished to each Debt Holder a properly completed and be continuing with respect to either executed certification of non-foreign status substantially in the form set forth in Treasury Regulations Section 1.1445-2(b)(2)(iv). In the event that any of the conditions set forth in this clause (xa) the Company shall not have been fulfilled (or (y) the Company after giving effect to the transactions contemplated waived by the Branch Purchase AgreementDebt Holders) on the Closing Date, this Agreement may be terminated by the Debt Holders by delivering a written notice of termination to MMC and MMI.
(b) The obligation obligations of the Company MMC to consummate exchange Shares for MMC Debt Obligations at the Closing shall be subject to the condition that all satisfaction (or waiver) of the following conditions:
(i) (A) the representations and warranties and other statements of the Investor each Debt Holder in this Agreement shall be true and correct in all respects on and as of the date of this Agreement applicable Closing Date, with the same effect as if made on the applicable Closing Date, and (B) each Debt Holder shall have complied with all the date of agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the applicable Closing Date;
(except those representations ii) the Private Letter Ruling shall remain in full force and warranties that by their terms speak specifically effect and shall not have been revoked in whole or in part as of the date applicable Closing Date;
(iii) no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any federal, state, local or foreign government or any court of this Agreement competent jurisdiction, administrative agency or some commission or other date governmental authority or instrumentality, domestic or foreign, or other legal restraint or prohibition shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit in effect preventing the transactions contemplated hereby or prohibit to occur at the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Closing; and
(3iv) the Underwriting Agreement shall have been duly executed and delivered and shall remain in full force and effect and the conditions to the obligations of the Underwriters to purchase and pay for the applicable Shares as set forth in the Underwriting Agreement shall have been satisfied or waived (other than those conditions that by their nature cannot be satisfied prior to the applicable closing pursuant to the Underwriting Agreement). In the event that any of the conditions set forth in Section 10 this clause (b) shall not have been fulfilled (or waived by MMC) on the Closing Date, this Agreement may be terminated by MMC by delivering a written notice of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect termination to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedDebt Holders and MMI.
Appears in 2 contracts
Samples: Debt for Equity Exchange Agreement (Marcus & Millichap, Inc.), Debt for Equity Exchange Agreement (Marcus & Millichap, Inc.)
Conditions. A. In addition to Purchaser’s absolute right to terminate this Contract for any reason at any time during the Review Period, the obligation of Purchaser under this Contract to purchase the Property from Seller is subject to the satisfaction of each of the following conditions on or prior to the Closing Date, any of which conditions may be waived in whole or in part by Purchaser by written waiver at or prior to the Closing Date:
1. Title to the Real Property shall be good and marketable as required herein, free and clear of all liens and encumbrances and subject to no exceptions other than the Permitted Exceptions and the Escrow Agent shall be prepared to issue an owner’s title insurance policy pursuant to the Title Commitment insuring the title to the Real Property subject only to the Permitted Exceptions in the amount of the Purchase Price. For purposes of determining whether this Condition has been satisfied, it shall be assumed that as of the Closing Date: (a) The obligation all of Purchaser’s “Requirements” set forth in the Investor Title Commitment have been satisfied; and (b) the Escrow Agent’s willingness to consummate issue such owner’s title insurance policy shall satisfy the requirement that title to the Real Property shall be good and marketable.
2. Seller shall have performed, observed and complied with all covenants, agreements and conditions required by this Contract to be performed by, observed and complied with on its part either on or prior to the Closing shall be subject to the condition that all Date.
3. All of Seller’s representations and warranties and other statements of the Company contained herein shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement Closing Date and the date Seller will deliver to Purchaser at Closing a certificate to that effect.
4. The physical condition of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares Property shall not (i) require have materially changed since the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedEffective Date.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Wheeler Real Estate Investment Trust, Inc.)
Conditions. The Employer agrees:
(ai) The obligation With respect to the investment option of the Investor to consummate Plan that is funded under the Closing shall be subject Guaranteed Interest Option and to the condition extent that all representations the Plan provides for allocations to, and warranties transfers to and other statements from such option are to be made solely at the discretion of the Company shall be true individuals covered by the Plan, such allocations and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures transfers are to be so true and correct (without giving effect to any qualification as to materiality made in accordance with instructions by the Employer or Material Adverse Effect contained therein) as would not have, individually in Participant covered by the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore Plan. We are to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated given at least 60 days advance written notice by the Branch Purchase AgreementEmployer of any noncompliance with this condition.
(bii) The obligation Employer is to provide us with any amendment to the Plan or its investment policy, any communication to the Participants covered by the Plan concerning the Guaranteed Interest Option or the investment option of the Company Plan to consummate which it relates, or any change in the Closing shall manner in which the Plan is administered. Any such document is to be subject provided to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement us at least 60 days before its effective date. We may also request, and the date Employer will thereupon provide, any other information that we reasonably determine would bear upon the flow of funds to and from the Closing (except those representations and warranties that by their terms speak specifically as of Guaranteed Interest Option. If the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not conditions stated in (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; and (ii) require above are not complied with or, if the Investor Employer fails to remit Contributions in accordance with Part III on "Contributions, Allocations and Discontinuance" or if we determine and so notify the Employer by written notice that an amendment to the Plan, its investment policy, or any change in the manner in which the Plan is administered would materially and adversely affect the flow of its affiliates funds to become a bank holding company; or (iii) cause from the InvestorGuaranteed Interest Option, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or then we will have the power right to:
1. decline further requests for transfers to vote securities which (assumingor from the Guaranteed Interest Option; and/or
2. deem that a discontinuance of Contributions has occurred under the section, for this purpose only, full conversion and/or exercise "Discontinuance of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedContributions".
Appears in 2 contracts
Samples: Group Flexible Premium Deferred Variable Annuity Contract (Separate Account a of Axa Equitable Life Insurance Co), Group Annuity Contract (Separate Account a of Equitable Life Assu Soc of the Us)
Conditions. (a) The obligation obligations of the Investor Company and the Backstop Purchaser to consummate the Closing transactions contemplated hereby shall be subject to the condition that all satisfaction prior to the Closing of each of the following conditions (which may be waived in whole or in part by the Company or the Backstop Purchaser, as the case may be, in its or their sole discretion, except as set forth in subsection (b) below):
(i) The Registration Statement shall have been declared effective by the SEC and shall continue to be effective and no stop order shall have been entered by the SEC with respect thereto, and no proceedings therefore will have been initiated or, to the knowledge of the Company, threatened by the SEC, and any request on the part of the SEC for additional information will have been complied with.
(ii) The representations and warranties of each party in Sections 3 and other statements 4 are true and correct in all material respects as of the Company Closing Date, as if made on such date (except for representations and warranties made as of a specified date, which shall be true and correct in all material respects as of such specified date), nor shall there have occurred any breach of any covenant of the Company set forth in Section 5 hereof.
(iii) The Rights Offering shall have been conducted in all material respects in accordance with this Agreement.
(iv) All material governmental and third-party notifications, filings, consents, waivers, and approvals required for the consummation of the transactions contemplated by this Agreement, including the Rights Offering, shall have been made or received.
(v) No action shall have been taken, no statute, rule, regulation, or order shall have been enacted, adopted, or issued by any federal, state, or foreign governmental or regulatory authority, and no judgment, injunction, decree, or order of any federal, state, or foreign court shall have been issued that, in each case, prohibits the implementation of the Rights Offering, and the issuance and sale of Common Stock in the Rights Offering, or materially impairs the benefit of implementation thereof, and no action or proceeding by or before any federal, state, or foreign governmental or regulatory authority shall be pending or threatened wherein an adverse judgment, decree, or order would be reasonably likely to result in the prohibition of or material impairment of the benefits of the implementation of the Rights Offering and the issuance and sale of Common Stock in the Rights Offering.
(vi) Since the date of this Agreement and the date of the Closing (except those representations and warranties Agreement, there shall not have been any material adverse effect or any effect that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not havewould, individually or in the aggregate, a Material Adverse Effect; reasonably be expected to materially and adversely affect the condition that ability of the Company or the Backstop Purchaser, as the case may be, to perform its or their obligations under this Agreement or consummate the transactions contemplated hereby on a timely basis or to materially and adversely affect the business, assets or financial condition of the Company.
(vii) As of the Closing Date, trading in the Common Stock shall not have been suspended by the SEC.
(viii) As of the Closing Date, the Common Stock shall be quoted on the OTCQX Best Market (or a national securities exchange) and quotations as to its price shall not be blocked.
(ix) The Backstop Purchaser shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing received a legal opinion from Xxxxxxxx Xxxx LLP with respect to either customary matters in a form satisfactory to the Backstop Purchaser in its reasonable discretion relating to the due authorization of the issuance of the Rights and the shares of Common Stock in the Rights Offering, the due authorization of this Agreement and such other matters as the Backstop Purchaser shall reasonably request.
(x) The Refinancing Condition shall have been satisfied.
(xi) The Company shall enter into the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Registration Rights Agreement.
(b) The obligation of Notwithstanding the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgmentforegoing, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of (ii) and (vi) above (x) as they relate to the Branch Purchase AgreementBackstop Purchaser, other than may only be waived by the condition set forth in Section 10.3(eCompany, and (y) of the Branch Purchase Agreement with respect as they relate to the Company’s acceptance of , may only be waived by the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedBackstop Purchaser.
Appears in 2 contracts
Samples: Backstop Agreement (Williams Industrial Services Group Inc.), Backstop Agreement (Williams Industrial Services Group Inc.)
Conditions. (a) The obligation of the Investor In addition to consummate the Closing shall be being subject to the condition that all representations and warranties and other statements satisfaction of the Company conditions contained in Sections 5.1 and 5.2, the obligation of an Issuing Bank to issue any Letter of Credit is subject to the satisfaction in full of the following conditions:
(A) the Borrower shall have delivered to the applicable Issuing Bank (at such times and in such manner as such Issuing Bank may reasonably prescribe) and the Administrative Agent, a request for issuance of such Letter of Credit in substantially the form of Exhibit C hereto (each such request a "REQUEST FOR LETTER OF CREDIT"), duly executed applications for such Letter of Credit, and such other documents, instructions and agreements as may be required pursuant to the terms thereof (all such applications, documents, instructions, and agreements being referred to herein as the "L/C DOCUMENTS"), and the proposed Letter of Credit shall be true reasonably satisfactory to such Issuing Bank as to form and correct content; and
(B) as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement issuance no order, judgment or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision decree of any court, arbitrator or Governmental Authority shall purport by its terms to enjoin or restrain the applicable law Issuing Bank from issuing such Letter of Credit and no law, rule or regulation applicable to such Issuing Bank and no judgment, injunction, order request or decree directive (whether or not having the force of law) from a Governmental Authority with jurisdiction over such Issuing Bank shall prohibit or request that such Issuing Bank refrain from the transactions contemplated hereby issuance of Letters of Credit generally or prohibit the Investor from owning or voting any issuance of the Investor Shares;
(2) the purchase by the Investor that Letter of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Credit; and
(3C) in the case of LaSalle acting in its capacity as Issuing Bank, the Borrower shall have duly executed and delivered to LaSalle the L/C Master Agreement and the Borrower shall be in compliance therewith; provided that in the event that the terms and conditions set forth in Section 10 of the Branch Purchase L/C Master Agreement (or any similar agreement entered into with any other Issuing Bank) shall conflict with the terms and conditions of this Agreement, other than the condition set forth in Section 10.3(e) terms and conditions of the Branch Purchase this Agreement with respect shall govern and control to the Company’s acceptance extent of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedsuch conflict.
Appears in 2 contracts
Samples: Credit Agreement (Alion Science & Technology Corp), Credit Agreement (Alion Science & Technology Corp)
Conditions. 6.2.1 Notwithstanding anything herein contained, the obligation of the Vendor to complete the transactions provided for herein will be subject to the fulfilment of the following conditions at or prior to the Time of Closing, and the Purchaser covenants to use its commercially reasonable efforts to ensure that such conditions, to the extent under the control of the Purchaser, are fulfilled:
(a) The obligation consideration payable pursuant to Sections 2.1(a), 2.1(b) and 2.1(c) to Vendor for the acquisition of the Investor to consummate the Closing Purchased Shares shall be subject to delivered by the condition that all Purchaser.
(b) All representations and warranties and other statements of the Company Purchaser as contained in this Agreement shall be true and correct in all material respects to the extent not qualified by materiality or Purchaser Material Adverse Effect and in all respects to the extent qualified by materiality or Purchaser Material Adverse Effect as of the Closing Date as if made on and as of such date (except for representations and warranties made as of a specified date, the accuracy of which shall be determined as of that specified date).
(c) All covenants to be performed by the Purchaser by the Closing Date as contained in this Agreement shall have been performed and the Purchaser shall have complied in all material respects with its covenants in this Agreement.
(d) All Consents and Regulatory Approvals required to be obtained by the Purchaser in connection with this Agreement and the Investor Rights Agreement and the transactions contemplated hereunder and thereunder shall have been obtained on terms and conditions satisfactory to Vendor, acting reasonably.
(e) There shall not exist any prohibition under Law, including a cease trade order, injunction or other prohibition or order at law or under applicable legislation, against Purchaser which shall prevent the consummation of the transactions contemplated hereby or prevent the trading of the common shares of the Purchaser.
(f) Since the date of this Agreement Agreement, there shall not have been any Purchaser Material Adverse Effect.
(g) The Purchaser executing and delivering in favour of Vendor the Investor Rights Agreement.
(h) The Purchaser shall deliver to the Vendor all in form and substance acceptable to Vendor, acting reasonably:
(i) a certificate of incumbency with respect to Purchaser;
(ii) a copy of the resolution of its Board of Directors (certified by a duly appointed officer as true and correct), authorising the signature of and the date performance by Purchaser of its obligations under this Agreement, the Investor Rights Agreement, and each of the other documents (if any) to be executed by Purchaser pursuant to this Agreement or any of the foregoing agreements; and
(iii) a certificate by Purchaser confirming that (i) all representations and warranties made pursuant to Section 3.2 of this Agreement are true and correct in all material respects to the extent not qualified by materiality or Purchaser Material Adverse Effect and in all respects to the extent qualified by materiality or Purchaser Material Adverse Effect as of the Closing Date as if made on and as of such date (except those for representations and warranties that by their terms speak specifically made as of a specified date, the date accuracy of which shall be determined as of that specified date) and (ii) all covenants to be performed by the Purchaser by the Closing Date as contained in this Agreement have been performed and the Purchaser has complied in all material respects with its covenants in this Agreement.
(i) The Purchaser shall have delivered to Vendor all documentation required under the policies of the CSE relating to the issuance of Talisker Securities to Vendor pursuant to Section 2.1.
(j) The Samsung Security Interest shall have been discharged.
6.2.2 Notwithstanding anything herein contained, the obligation of the Purchaser to complete the transactions provided for herein will be subject to the fulfilment of the following conditions at or some other date prior to the Time of Closing, and Vendor and Bralorne, as the case may be, covenant to use their commercially reasonable efforts to ensure that such conditions are fulfilled:
(a) All representations and warranties of Vendor in this Agreement shall be true and correct in all material respects to the extent not qualified by materiality or material adverse effect and in all respects to the extent qualified by materiality or material adverse effect as of the Closing Date as if made on and as of such date (except for representations and warranties made as of a specified date, the accuracy of which shall be determined as of that specified date), except for such failures .
(b) All covenants to be so true and correct (without giving effect to any qualification performed by the Vendor or Bralorne by the Closing Date as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company this Agreement shall have been performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since Vendor or Bralorne, as the date hereof no Material Adverse Effect case may be, shall have occurred and be continuing complied in all material respects with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase its covenants in this Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation All Consents and Regulatory Approvals required to be obtained by Bralorne or Vendor in connection with this Agreement and the transactions contemplated hereunder shall have been obtained on terms and conditions satisfactory to Purchaser, acting reasonably.
(d) Vendor shall have caused Bralorne to file a notice of alteration in the form attached hereto as Schedule 6.2.2(d) to create the Class A Shares and Vendor shall have subscribed for that number of the Class A Shares for nominal consideration to provide Vendor with 50.1% of the outstanding votes required to elect Bralorne's directors immediately after the Closing.
(e) Bralorne’s directors shall have tendered their resignations.
(f) Vendor and Purchaser shall have entered into a shareholders agreement that is not a "unanimous shareholders agreement" pursuant to the Business Corporations Act (British Columbia), that will: (i) specify the size of Bralorne's board of directors and provide that Purchaser, as the holder of all of the outstanding common shares of Bralorne, will be entitled to nominate all of the directors of Bralorne; and (ii) provide that any matters requiring shareholder approval while Vendor holds Class A Shares must be approved by a special resolution of all shareholders, which shareholders agreement shall be in the form attached hereto as Schedule 6.2.2(f).
(g) Vendor shall deliver, or cause Bralorne to deliver, as the case may be, to the Purchaser, among other documents, all in form and substance acceptable to the Purchaser:
(i) the Books and Records of Bralorne within its possession or control;
(ii) the share certificates (duly endorsed for transfer to the Purchaser or, as the Purchaser may direct, the Purchaser’s nominee) representing the Purchased Shares and shall cause Bralorne to register the transfer of the shares;
(iii) a certificate of incumbency with respect to the Vendor;
(iv) evidence satisfactory to Purchaser of the discharge of the Samsung Security Interest;
(v) evidence satisfactory to Purchaser that Bralorne has sufficient cash on hand on the Closing Date to at a minimum satisfy the FT Expenses;
(vi) evidence satisfactory to the Purchaser that the requirements of Section 4.1(o) have been satisfied in its sole discretion;
(vii) evidence satisfactory to the Purchaser that the requirements of Section 4.1(p) have been satisfied in its sole discretion;
(viii) a certificate of good standing or equivalent with respect to Bralorne;
(ix) a mutual release between the directors and officers, on the one hand, and Bralorne, on the other hand, with effect from the Time of Closing, of those claims by and against Bralorne, as applicable, in the form satisfactory to Purchaser;
(x) a mutual release between Vendor and Bralorne with effect from the Time of Closing of those claims by and against Bralorne, in the form satisfactory to Purchaser;
(xi) a certificate executed by a senior officer of Vendor confirming that (A) all representations and warranties of Vendor in this Agreement are true and correct in all material respects to the extent not qualified by materiality or material adverse effect and in all respects to the extent qualified by materiality or material adverse effect as of the Closing Date as if made on and as of such date (except for representations and warranties made as of a specified date, the accuracy of which shall be determined as of that specified date); (B) all covenants to be performed by the Vendor or Bralorne by the Closing Date as contained in this Agreement have been performed in all material respects and each of the Investor Vendor and Bralorne, as the case may be, has complied in all material respects with its covenants in this Agreement; and (C) as of the Closing Time, Bralorne has no outstanding indebtedness or any liabilities or obligations (whether accrued, absolute, contingent or otherwise, matured or unmatured, including under any guarantee of any debt) other than Reclamation and Rehabilitation Costs and the Company to consummate royalties set out in Schedule 1.1(uu) of the Closing shall be subject Disclosure Letter;
(xii) an opinion of Vendor’s legal counsel addressed to the following additional conditions:
(1) no provision of any applicable law or regulation Purchaser as to certain legal matters relating to Vendor and no judgmentBralorne, injunctionincluding corporate existence, order or decree shall prohibit authorization and enforceability relating to the transactions contemplated hereby or prohibit hereby, the Investor from owning or voting any authorized and issued share capital of Bralorne and the shareholders of Bralorne as at the Time of Closing and the transfer of the Investor Shares;
(2) Purchased Shares to the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActPurchaser, or otherwise seek prior approval or non-objection free and clear of any state or federal banking regulator; (ii) require and all Encumbrances, in form and substance satisfactory to the Investor or any of Purchaser and its affiliates to become a bank holding company; or (iii) cause the Investorcounsel, together with any other person whose securities of the Company would be aggregated acting reasonably, and which is consistent in all material respects with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise draft of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect opinion that has been provided to the purchase of Purchaser and its counsel prior to the Investor Shares contemplated hereby)execution this Agreement; and
(3xiii) the conditions Pro Forma Balance Sheet.
(h) Vendor executing and delivering in favour of Purchaser the Investor Rights Agreement.
(i) Vendor and Bralorne shall have completed the reorganization set forth out in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(eSchedule 6.2.2(i) of the Branch Purchase Agreement Disclosure Letter.
6.2.3 The conditions precedent set out in Section 6.2.1 (except for the Regulatory Approvals required to be obtained in Sections 6.2.1(c) and 6.2.1(d), which are provided for the mutual benefit of the Purchaser and Vendor) are inserted for the sole benefit of Vendor and the conditions precedent set out in Section 6.2.2 (except for the Regulatory Approvals required to be obtained in Sections 6.2.2(b) and 6.2.2(c), which are provided for the mutual benefit of the Purchaser and Vendor) are inserted for the sole benefit of the Purchaser. Either of the Purchaser or the Vendor may refuse to proceed with respect the closing of the purchase and sale of the Purchased Shares if the conditions precedent inserted for its benefit are not fulfilled to its reasonable satisfaction prior to the CompanyClosing Date and it shall incur no liability to any other party by reason of such refusal.
6.2.4 The foregoing conditions precedent may be waived in whole or in part by the party for whose benefit they are inserted in that party’s acceptance absolute discretion. No such waiver shall be of any effect unless it is in writing signed by the proceeds of Party granting the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedwaiver.
Appears in 2 contracts
Samples: Share Purchase Agreement (Avino Silver & Gold Mines LTD), Share Purchase Agreement
Conditions. (a1) Subject to Section 4.4, the following are conditions to the consummation of the Distribution (which, to the extent permitted by applicable Law, may be waived, in whole or in part, by AFC Gamma in its sole discretion):
(i) The obligation of SUNS Registration Statement shall have been declared effective by the Investor to consummate the Closing SEC and shall be subject to no further comment, no stop order suspending the condition effectiveness of the SUNS Registration Statement shall be in effect, and no Proceedings for that purpose will be pending before or threatened by the SEC;
(ii) The SUNS Common Stock to be delivered to the AFC Gamma stockholders in the Distribution shall have been accepted for listing on the Nasdaq, subject to official notice of distribution;
(iii) Each of AFC Gamma and SUNS shall have received any necessary permits, registrations and consents under the securities or “blue sky” Laws of states or other political subdivisions of the United States (and any comparable Laws under any foreign jurisdiction) in connection with the Distribution and all representations such permits and warranties authorizations shall be in effect;
(iv) No order, injunction or decree issued by any court or other tribunal of competent jurisdiction shall have been entered and shall continue to be in effect and no other Law or other legal restraint or prohibition shall have been adopted or be effective preventing the consummation of the Separation, Distribution or any of the related transactions contemplated herein;
(v) The Internal Reorganization shall have been effectuated, including the execution of all such instruments, assignments, documents and other statements of agreements necessary to effect the Company Internal Reorganization; and
(vi) No other events or developments shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement exist or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred that, in the judgment of the AFC Gamma Board, in its sole and be continuing with respect absolute discretion, makes it inadvisable to either (x) effect the Company Separation, the Distribution or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase this Agreement.
(b2) The obligation conditions set forth in this Section 4.5 are for the sole benefit of AFC Gamma and shall not give rise to or create any duty on the Company part of AFC Gamma or the AFC Gamma Board to consummate the Closing shall be subject waive or not waive any such condition. Any determination made by AFC Gamma prior to the condition that all representations and warranties and other statements Distribution concerning the satisfaction or waiver of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement any or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in this Section 10 of 4.5 shall be conclusive and binding on the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedParties hereto.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Sunrise Realty Trust, Inc.), Separation and Distribution Agreement (Sunrise Realty Trust, Inc.)
Conditions. (a) Section 8.1 Conditions to Each Party's Obligation to Effect the Merger. The obligation respective obligations of each party to effect the Investor to consummate the Closing Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) This Agreement and the Merger shall have been adopted and approved by the affirmative vote of holders of (i) a majority of the outstanding shares of PZE Common Stock; and (ii) a majority of the outstanding shares of DVN Common Stock and the Northstar Exchangeable Shares voting as a single class with the DVN Special Voting Stock voting for the Northstar Exchangeable Shares as provided in DVN's charter.
(b) The waiting period applicable to the consummation of the Merger shall have expired or been terminated under (i) the HSR Act and (ii) any mandatory waiting period under any applicable foreign competition or antitrust law or regulation where the failure to observe such waiting period referred to in this clause (ii) would have, individually or in the aggregate, a DVN Material Adverse Effect or a PZE Material Adverse Effect.
(c) None of the parties hereto shall be subject to any decree, order or injunction of a court of competent jurisdiction, U.S. or foreign, which prohibits the consummation of the Merger; provided, however, that prior to invoking this condition that each party agrees to comply with Section 7.5, and with respect to other matters not covered by Section 7.5, to use its commercially reasonable best efforts to have any such decree, order or injunction lifted or vacated; and no statute, rule or regulation shall have been enacted by any governmental authority which prohibits or makes unlawful the consummation of the Merger.
(d) The Form S-4 shall have become effective and no stop order with respect thereto shall be in effect.
(e) The shares of Newco Common Stock to be issued pursuant to the Merger shall have been authorized for listing on the NYSE or the AMEX, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of PZE to Effect the Merger. The obligation of PZE to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) DVN shall have performed in all material respects its covenants and agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of DVN and Newco contained in this Agreement and in any document delivered in connection herewith (i) to the extent qualified by DVN Material Adverse Effect or any other statements of the Company materiality qualification shall be true and correct and (ii) to the extent not qualified by DVN Material Adverse Effect or any other materiality qualification shall be true and correct so long as any failures of such representations and warranties to be true and correct, individually or in the aggregate, do not have a DVN Material Adverse Effect, as of the date of this Agreement and the date as of the Closing Date (except those for representations and warranties that by their terms speak specifically made as of the date of this Agreement or some other date shall a specified date, which need be true and correct only as of such the specified date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company PZE shall have performed in all material respects all received a certificate of the DVN, executed on its obligations hereunder theretofore behalf by its President or a Vice President of DVN, dated the Closing Date, certifying to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementsuch effect.
(b) The obligation PZE shall have received the opinion of Xxxxx & Xxxxx, L.L.P., counsel to PZE, in form and substance reasonably satisfactory to PZE, dated the Closing Date, a copy of which shall be furnished to DVN, to the effect that (i) the Merger will be treated for federal income tax purposes as a reorganization within the meaning of section 368(a) of the Company Code and (ii) no gain or loss will be recognized by PZE or the stockholders of PZE who exchange all of their PZE Common Stock solely for Newco Common Stock pursuant to consummate the Closing Merger (except with respect to cash received in lieu of a fractional share interest in Newco Common Stock). In rendering such opinion, such counsel shall be subject entitled to the condition that all receive and rely upon representations of officers of PZE and warranties and other statements of the Investor shall be true and correct DVN as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically to such matters as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedcounsel may reasonably request.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of At any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on time after the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase this Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined there shall not have been any event or occurrence, individually or in the Branch Purchase Agreement)aggregate with all such events or occurrences, shall that have been satisfied had or waivedis likely to have a DVN Material Adverse Effect.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pennzenergy Co), Agreement and Plan of Merger (Devon Energy Corp /Ok/)
Conditions. (a) The obligation obligations of the Investor Vendors to consummate sell the Closing Purchased Shares shall be subject to the condition that satisfaction, on or before the Closing Date, of each of the following conditions precedent (each of which is for the exclusive benefit of the Vendors and may be waived by the Vendors, in whole or in part at their option, and any one or more of which, if not satisfied or waived, will relieve the Vendors of any obligation under this Agreement):
(a) each of the acts, undertakings, obligations, agreements and covenants of the Purchaser under this Agreement or under any Closing Document to be performed or complied with on or before the Closing Date shall have been duly performed or complied with in all material respects, and the Vendors shall have received a certificate of the Purchaser addressed to the Vendors and dated as of the Closing Date, confirming same. The acceptance by the Vendors, in their sole discretion, of a certificate which does not correspond in all respects to the terms of the preceding sentence shall be deemed to constitute a variation or amendment, to the extent therein described, of the provisions of this Agreement or any Closing Document; and
(b) each of the representations and warranties and other statements made in favour of the Company Vendors pursuant to this Agreement shall be true true, complete and correct as of the date of this Agreement and the date of the Closing in all material respects (except that those representations and warranties that by their terms speak specifically which are qualified as of to material, materiality, Material Adverse Change or similar expressions, or are subject to the date of this Agreement same or some other date similar type exceptions, shall be true true, complete and correct in all respects) on the Closing Date as if made on and as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company Vendors shall have performed in all material respects all received a certificate of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect Purchaser addressed to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations Vendors and warranties and other statements of the Investor shall be true and correct dated as of the date Closing Date, confirming same. The acceptance by the Vendors, in their sole discretion, of this Agreement and a certificate which does not correspond in all respects to the date terms of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date preceding sentence shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% be a waiver of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect representation or warranty contained in this Agreement to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedextent therein described.
Appears in 2 contracts
Samples: Share Purchase Agreement (Argo Blockchain PLC), Share Purchase Agreement (Argo Blockchain PLC)
Conditions. The obligations of the Initial Purchasers to purchase the Notes under this Agreement are subject to the performance by each of the Company and each of the Guarantors of their respective covenants and obligations hereunder and the satisfaction of each of the following conditions:
(a) The obligation All of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company and the Subsidiaries contained in this Agreement and in each of the Transaction Documents shall be true and correct as of the date of this Agreement hereof and the date of at the Closing (Date, except those to the extent that the failure of such representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or “material,” “materiality,” “Material Adverse Effect contained thereinEffect” or any similar terms, qualifications or limitations to such representations and warranties) as to be true or correct individually or in the aggregate would not havereasonably be expected to have a Material Adverse Effect. On or prior to the Closing Date, the Company and each other party to the Transaction Documents (other than the Initial Purchasers) shall have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Transaction Documents (other than conditions to be satisfied by such other parties, which the failure to so satisfy would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; ).
(b) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the condition Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Transaction Documents. No stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company, be pending or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Transaction Documents. No Proceeding shall be pending or, to the knowledge of the Company, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Pricing Disclosure Package and the Final Offering Memorandum, there shall not have been any event that would have a Material Adverse Effect.
(e) The Notes shall (i) have been designated PORTAL securities in accordance with the rules and regulations adopted by the Financial Industry Regulatory Authority relating to trading in the PORTAL market, and (ii) be eligible for clearance and settlement through DTC.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(g) The Initial Purchasers shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (1) the Chief Executive Officer of the Company and (2) the Chief Financial Officer of the Company, on behalf of the Company, to the effect that (a) the representations and warranties set forth in Section 4 hereof and in each of the Transaction Documents are true and correct in all respects, except to the extent that the Company shall have performed in all material respects all failure of its obligations hereunder theretofore to be performed such representations and warranties (without giving effect to any qualification as to materiality or “material,” “materiality,” “Material Adverse Effect contained therein); Effect” or any similar terms, qualifications or limitations to such representations and warranties) to be true or correct individually or in the condition that aggregate would not reasonably be expected to have a Material Adverse Effect, with the same force and effect as though expressly made at and as of the Closing Date, (b) the Company has performed and complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect shall have occurred Effect, (d) since the date of the most recent financial statements in the Pricing Disclosure Package and be continuing with respect the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), other than as described in the Pricing Disclosure Package and the Final Offering Memorandum or contemplated hereby, neither the Company nor any Subsidiary of the Company has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to either the Company and the Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long- term indebtedness of the Company or any Subsidiary of the Company that is material to the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole, and (e) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company and each Guarantor, certifying such matters as the Initial Purchasers may reasonably request covering such matters as are customarily covered in such certificates.
(iii) a perfection certificate, dated the Closing Date, executed by an officer of the Company and each of the Guarantors substantially in the form previously provided to counsel of Company.
(iv) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in the form previously approved by the Initial Purchasers or its counsel.
(v) the opinion of Xxxxx Xxxxx LLP, counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(vi) the opinion of Xxxxx Xxxxx Heuer & Xxxxx, P.C., local Michigan counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers.
(vii) the opinion of Xxxxxx & Xxxxxxxxx LLP, local Indiana counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers.
(viii) the opinion of Xxxxx, Brown, Koehn, Shors & Xxxxxxx, P.C., local Iowa counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers.
(ix) the opinion of Xxxxxxxxx & Xxxxxx P.L.L.P., local Minnesota counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers.
(x) the Company or (y) the Company after giving effect opinion of Proskauer Rose LLP, counsel to the transactions contemplated by Initial Purchasers, dated the Branch Purchase AgreementClosing Date, in form satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(bxi) a copy of a payoff letter or other evidence of repayment in form and substance reasonably satisfactory to the Initial Purchasers from the administrative agent under the Existing Credit Facility, releasing the Company and the Guarantors from all obligations under the Existing Credit Facility and any guarantees thereunder, which letter shall become effective immediately following the application of the net proceeds of the Offering as set forth under the “Use of Proceeds” section in the Pricing Disclosure Package and Final Offering Memorandum.
(h) The obligation Initial Purchasers shall have received on the date hereof and on the Closing Date a certificate from the Chief Financial Officer of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct Company, dated as of the date hereof and thereof, substantially in the form of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedExhibit A attached hereto.
(ci) The obligation of each of the Investor and the Company to consummate the Closing Initial Purchasers shall be subject to the following additional conditions:
have received (1A) no provision of any applicable law or regulation and no judgmenta customary comfort letter from PricewaterhouseCoopers LLP, injunctionindependent auditors, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance , dated as of the proceeds date hereof, in form and substance satisfactory to the Initial Purchasers and its counsel, with respect to the financial statements and certain financial information contained in the Pricing Disclosure Package and the Final Offering Memorandum and (B) a customary bring-down comfort letter from PricewaterhouseCoopers LLP, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers and its counsel, to the effect that PricewaterhouseCoopers LLP reaffirms the statements made in its letter furnished pursuant to clause (A) with respect to the financial statements and certain financial information contained in the Pricing Disclosure Package and the Final Offering Memorandum.
(j) Each of the Acceptable Financing (as defined in the Branch Purchase Agreement), Transaction Documents shall have been executed and delivered by all parties thereto, and the Initial Purchasers shall have received a fully executed original of each of the Transaction Documents.
(k) The terms of each Transaction Document shall conform in all material respects to the description thereof in the Pricing Disclosure Package and the Final Offering Memorandum.
(l) The Collateral Agent shall have received (with a copy for the Initial Purchasers) on the Closing Date:
(i) appropriately completed copies of Uniform Commercial Code financing statements naming the Company and each Guarantor as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Security Agreement;
(ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any Security Agreement previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company or any Guarantor (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Documents, other than such financing statements that evidence Permitted Liens);
(iv) such other approvals, opinions, or documents as the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Collateral Agent; and
(v) the Collateral Agent and its counsel shall be satisfied that (A) the Lien granted to the Collateral Agent, for the benefit of the Secured Parties in the collateral described above is of the priority described in the Pricing Disclosure Package and the Final Offering Memorandum; and (B) no Lien exists on any of the collateral described above other than the Lien created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Documents, in each case subject to the Permitted Liens.
(m) All Uniform Commercial Code financing statements or waivedother similar financing statements and Uniform Commercial Code Form UCC-3 termination statements required pursuant to clause (l)(i) and (l)(ii) above shall have been delivered to CT Corporation System or another similar filing service company acceptable to the Collateral Agent.
Appears in 2 contracts
Samples: Purchase Agreement (CPM Holdings, Inc.), Purchase Agreement (CPM Holdings, Inc.)
Conditions. (a) The obligation issuance, amendment or extension of the Investor to consummate the Closing shall be any Facility Letter of Credit is subject to the condition that all representations and warranties and other statements satisfaction in full of the Company following conditions on the Issuance Date:
(i) the Borrower shall have delivered to the Issuer at such times and in such manner as the Issuer may reasonably prescribe a Reimbursement Agreement and such other documents and materials as may be reasonably required pursuant to the terms thereof, and the proposed Facility Letter of Credit shall be true reasonably satisfactory to such Issuer in form and correct as content, provided, however, in the event of any conflict between the date terms of this Agreement and the date terms of the Closing Reimbursement Agreement, the terms of this Agreement shall control;
(except those ii) as of the Issuance Date no order, judgment or decree of any court, arbitrator or governmental authority shall enjoin or restrain such Issuer from issuing the Facility Letter of Credit and no law, rule or regulation applicable to the Issuer and no directive from any governmental authority with jurisdiction over the Issuer shall prohibit such Issuer from issuing Letters of Credit generally or from issuing that Facility Letter of Credit;
(iii) the following statements shall be true, and the Agent and such Issuer shall have received a certificate, substantially in the form of the certificate attached hereto as Exhibit D, signed by a duly authorized officer of the Borrower dated the Issuance Date stating that:
(a) the representations and warranties that by their terms speak specifically as of the date contained in Article IV of this Agreement or some other date shall be true and are correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all on and as of its obligations hereunder theretofore to be performed (without giving effect to any qualification such Issuance Date as to materiality or Material Adverse Effect contained therein); though made on and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect as of such Issuance Date except to the transactions contemplated by the Branch Purchase Agreement.extent that any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty is correct in all material respects as of such earlier date; and
(b) The obligation No Default or Event of Default has occurred and is continuing or would result from the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement issuance, amendment or some other date shall be true and correct as extension of such date); and the condition that the Investor shall have performed all Facility Letter of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor SharesCredit;
(2iv) the purchase by Issuer and the Investor of the Investor Shares Agent shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Acthave received such other approvals, opinions, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (documents as defined in the Branch Purchase Agreement), shall have been satisfied or waivedeither may reasonably request.
Appears in 2 contracts
Samples: Credit Agreement (Clarksburg Skylark, LLC), Credit Agreement (Beazer Homes Usa Inc)
Conditions. 10.3.1 The indemnities set out in Section 10.1 and Section 10.2 shall not apply to any such claim or proceedings:
(a) The obligation unless as soon as reasonably practicable following receipt of notice of such claim or proceedings, the Indemnified Person shall have notified the indemnifying Party in writing of it and shall, upon the indemnifying Party’s request and at that indemnifying Party’s cost, have permitted the indemnifying Party to have full care and control of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement claim or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all proceedings using legal representation of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein)own choosing; and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.or
(b) The obligation if the Indemnified Person shall have made any admission in respect of such claim or proceedings or taken any action relating to such claim or proceedings prejudicial to the defence of it without the written consent of the Company indemnifying Party (such consent not to consummate the Closing be unreasonably withheld or delayed), provided that no Indemnified Person shall be subject deemed to be in breach of this condition by any statement properly made by the condition that all representations and warranties and other statements Indemnified Person in connection with the operation of the Investor shall be true Indemnified Person’s internal complaint procedures, accident reporting procedures, or disciplinary procedures, or where such a statement is required by law.
10.3.2 The indemnifying Party shall, in relation to any claim or proceedings it has assumed care and correct as control of under Section 10.3.1(a):
(a) keep the Indemnified Pperson fully informed of the date progress of this Agreement and any claim or proceedings;
(b) consult fully with the date Indemnified Person on the nature of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore any defence to be performed.advanced; and
(c) The obligation of each not, without the prior written consent of the Investor and the Company Indemnified Person (such consent not to consummate the Closing shall be subject to the following additional conditions:
unreasonably withheld or delayed), enter into any settlement or compromise of such claim or proceedings which: (1a) no provision of any applicable law would result in injunctive or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding companyother relief being imposed against an Indemnified Person; or (iiib) cause does not include as an unconditional term the Investor, together with any giving by the claimant to all applicable Indemnified Persons of a release from liability in relation to such claim or proceedings.
10.3.3 Each Party shall use its reasonable endeavours to inform the other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes Party promptly of any bank regulation circumstances that are likely to give rise to a claim or lawproceedings in respect of which it may be entitled to indemnification under Section 10.1 or Section 10.2; and shall keep the other Party reasonably informed of developments in relation to any such claim or proceedings, even where the Party does not intend to collectively be deemed make a claim under Section 10.1 or Section 10.2.
10.3.4 Each Party shall give to own, control or have the power to vote securities which (assuming, indemnifying Party such assistance as it may reasonably require for this purpose only, full conversion and/or exercise of such securities by the Investor conduct and such other persons) would represent more than 9.9% prompt handling of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); andsuch claim or proceedings.
(3) the conditions set forth 10.3.5 Nothing in Section 10 10.1 or Section 10.2 shall restrict or limit an Indemnified Person’s general obligation at law to mitigate a loss it may suffer or incur as a result of the Branch Purchase Agreement, other than the condition set forth in an event that gives rise to a claim under Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied 10.1 or waivedSection 10.2.
Appears in 2 contracts
Samples: Manufacturing and Clinical Trial Agreement (TEKMIRA PHARMACEUTICALS Corp), Manufacturing and Clinical Trial Agreement (TEKMIRA PHARMACEUTICALS Corp)
Conditions. The effectiveness of Article 2 of this Amendment is subject to the satisfaction of the following conditions precedent:
(a) The obligation Administrative Agent (or its counsel) shall have received (i) from each party hereto a counterpart of this Amendment signed on behalf of such party (which, subject to Section 9.06(b) of the Investor to consummate Credit Agreement, may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page) and (ii) duly executed copies of any other Loan Documents and such other certificates, documents, instruments and agreements as the Closing Administrative Agent shall be subject reasonably request at least two Business Days prior to the condition that Amendment Effective Date in connection with the transactions contemplated by this Amendment, the Credit Agreement and the other Loan Documents, all in form and substance satisfactory to the Administrative Agent;
(b) The Administrative Agent shall have received all fees required to be paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Amendment Effective Date;
(c) Immediately after giving effect to this Amendment, the representations and warranties and other statements of the Company Loan Parties set forth in the Loan Documents shall be true and correct in all material respects with the same effect as though made on and as of the date of this Agreement Amendment Effective Date (it being understood and the date of the Closing (except those representations and warranties agreed that any representation or warranty which by their its terms speak specifically is made as of the date of this Agreement or some other a specified date shall be required to be true and correct in all material respects only as of such specified date), except for such failures and that any representation or warranty which is subject to any materiality qualifier shall be required to be so true and correct in all respects);
(without d) Immediately after giving effect to any qualification as this Amendment, no Default shall have occurred and be continuing;
(e) No event shall have occurred and no condition shall exist which has or could be reasonably expected to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, have a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3f) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), The Administrative Agent and its counsel shall have been satisfied or waivedcompleted all legal due diligence, the results of which shall be reasonably satisfactory to Administrative Agent in its sole discretion.
Appears in 2 contracts
Samples: Credit Agreement (DZS Inc.), Credit Agreement (DZS Inc.)
Conditions. (a) The obligation of the Investor to consummate the Closing Incremental Term Loan Commitments shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct become effective as of the first date of this Agreement and that the date of following conditions precedent have been satisfied:
(i) all conditions set forth in Section 4.4 with respect to the applicable Incremental Projects shall have been met;
(ii) since the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement Date, no event or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, circumstance which has had a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing;
(iii) no Default or Event of Default shall have occurred and be continuing with respect to either (x) as of the Company Incremental Satisfaction Date or (y) the Company would exist immediately after giving effect to the transactions contemplated by borrowings to be made on the Branch Purchase Agreement.Incremental Satisfaction Date;
(biv) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties contained in this Agreement and the other statements Loan Documents (in each case with respect to each date of the Investor a Loan for a Project and as of each Inclusion Date with respect to an Incremental Project such representation or warranty as to any Project or any Project Company shall relate only to such Project or Project Company) shall be true and correct in all material respects on and as of the date of this Agreement Incremental Satisfaction Date (unless such representation and the date of the Closing (except those representations warranty is qualified by materiality, in which event such representation and warranties that by their terms speak specifically as of the date of this Agreement or some other date warranty shall be true and correct in all respects) on and as of the Incremental Satisfaction Date with the same force and effect as if made on and as of such date); , except to the extent that such representations and the condition that the Investor warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have performed been true and correct in all material respects (unless such representation and warranty is qualified by materiality, in which event such representation and warranty shall have been true and correct in all respects) on and as of its obligations hereunder theretofore such earlier date) and except for changes in factual circumstances permitted under the Loan Documents;
(v) the Borrower shall deliver or cause to be performed.delivered officer’s certificates and legal opinions with respect to the Increase Joinder to the extent reasonably requested by, and in form and substance reasonably satisfactory to, the Required Lenders;
(cvi) The obligation of each of the Investor and the Company to consummate the Closing Administrative Agent shall be subject have received, at least ten (10) Business Days prior to the following additional conditionsrequested Incremental Satisfaction Date:
(1a) no provision of any All documentation and other information regarding the Pledgors and the Obligors requested in connection with applicable law or regulation “know your customer” rules and no judgmentregulations, injunctionAnti-Money Laundering Laws, order or decree shall prohibit including the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Patriot Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3b) Beneficial Ownership Certifications with respect to each Pledgor and each applicable Obligor.
(vii) the conditions Borrower has delivered a notice meeting the requirements set forth in this Section 10 2.3.1(b) at least forty-five (45) days prior to the Incremental Satisfaction Date; and
(viii) no later than ten (10) Business Days before the Inclusion Date, the Borrower shall have delivered to the Administrative Agent (for delivery to each Lender and LC Issuer) (A) a final update to the most recently updated Base Case Projections, which Base Case Projections update shall be satisfactory to the Administrative Agent and the Required Lenders (in consultation with the Independent Engineer) and (B) a certificate of an Authorized Officer of the Branch Purchase AgreementBorrower stating that the Base Case Projections were prepared in good faith based upon assumptions which the Borrower considers to be reasonable at the time made and at the time made available to the Administrative Agent, other than the condition set forth in Section 10.3(e) Lenders and LC Issuers and as of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedIncremental Satisfaction Date.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (OPAL Fuels Inc.), Credit and Guaranty Agreement (OPAL Fuels Inc.)
Conditions. 4.1 Conditions to the Obligations of Investor The obligations of Investor to complete the transactions contemplated by this Agreement are subject to the satisfaction, prior to the Closing Date, of the following conditions. The parties acknowledge and agree that each of the following conditions is included for the exclusive benefit of Investor and may be waived by Investor in whole or in part without prejudice to its right to rely on any other conditions:
(a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company Corporation set out in the Convertible Debentures shall be true and correct as in all material respects on the Closing Date and the Corporation shall have delivered to Investor at the Time of Closing certificates dated the Closing Date, duly executed by the senior officers of the date Corporation reasonably acceptable to Investor, to such effect. The receipt of such certificates and the closing of the transactions contemplated by this Agreement shall not be nor be deemed to be a waiver of the representations and warranties contained in the Convertible Debentures, which representations and warranties shall continue in full force and effect for the benefit of Investor as provided in the Convertible Debentures;
(b) all of the terms, covenants, obligations and conditions of this Agreement and the date Convertible Debentures to be complied with or performed by the Corporation on or before the Closing Date shall have been complied with or performed in all material respects, and the Corporation shall have delivered to Investor at the Closing certificates dated the Closing Date, duly executed by the senior officers of the Closing Corporation reasonably acceptable to Investor, to such effect;
(except those representations and warranties that c) no action, suit or proceeding shall be pending or threatened by their terms speak specifically as any Authority or any other Person to restrain or prohibit the completion of the date of 7 - 7 - transactions contemplated by this Agreement or some to prevent or restrain the Corporation, in any material respect, from carrying on its business as presently carried on;
(d) all actions, proceedings, instruments, documents and all other date legal matters relating to the subscriptions contemplated by this Agreement shall be true have been approved as to form and correct as legality to the satisfaction of such date)Investor's outside counsel, except for such failures acting reasonably, and all instruments and documents to be so true delivered by the Corporation pursuant to this Agreement prior to or on the Closing Date shall have been delivered prior to or on the Closing Date; without limiting the generality of the foregoing, the Corporation shall duly authorize the execution and correct delivery of the Convertible Debentures and the performance of its obligations thereunder and provide documentation evidencing same to Investor, and, without notice or any action by Investor, the Corporation shall prepare and file, as required, any amendments to its constating documents and by-laws necessitated by the execution and delivery of the Convertible Debentures and the performance of the Corporation's obligations thereunder;
(without giving effect e) there shall have been no change, which has had or could reasonably be expected to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; Effect (as defined in the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that Convertible Debentures) since the date hereof no Material Adverse Effect of the Audited Financial Statements (as defined in the Convertible Debentures);
(f) the Board of Directors of the Corporation shall have occurred approved the terms of this Agreement and be continuing with respect the consummation of the transactions contemplated hereby, including to either (x) the Company or (y) the Company after giving effect an extent and in a manner sufficient to render inapplicable to the transactions contemplated by this Agreement the Branch Purchase Agreement.provisions of Section 203 of the General Corporation Law of the State of Delaware;
(bg) The obligation the Corporation shall have delivered to Investor at the Closing Date an opinion of the Company Corporation's outside counsel as to consummate such matters as are reasonably requested by Investor's outside counsel, all reasonably satisfactory in form, substance and scope to Investor's outside counsel;
(h) the Closing shall be subject to the condition that all representations Corporation and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of executed and delivered the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Amended Registration Rights Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement)Convertible Debentures) on the 8 - 8 - terms contemplated by the Convertible Debentures and in a form reasonably satisfactory to Investor's outside counsel, and when delivered hereunder such Registration Rights Agreement will be a legal, valid, binding and enforceable obligation of the Corporation except as the same may be limited by creditors rights laws and general principles of equity;
(i) the Corporation shall have filed and delivered to the American Stock Exchange ("AMEX") an additional listing application (with respect to all common shares into which any of the Convertible Debentures may be converted) in a form and on terms reasonably satisfactory in form, substance and scope to Investor's outside counsel, and shall use its best efforts to ensure that such common shares become listed on AMEX;
(j) the Corporation shall have obtained all waivers, consents and other Approvals of all Authorities and other third Persons (including consent by NHP (such consent and all documentation executed in connection therewith to be in form and substance reasonably satisfactory to Investor and its outside counsel) to the "change in control" (as defined in the NHP Lease) caused by execution of the Convertible Debentures and the completion of the transactions contemplated thereby) required to complete the transactions contemplated by this Agreement (and shall have provided evidence in form and substance satisfactory to Investor, acting reasonably, that all such waivers, consents and other Approvals have been satisfied or waivedobtained).
Appears in 2 contracts
Samples: Purchase Agreement (Balanced Care Corp), Purchase Agreement (Balanced Care Corp)
Conditions. (a) The Properties Other than Coronado South and Rivermark. Except as provided in Section 5.8(b) and 5.8(c), but notwithstanding any other provision of this Agreement to the contrary, Buyer's obligation of the Investor to consummate the Closing purchase a Property shall be subject to and contingent upon the condition that all representations and warranties and other statements satisfaction or waiver of the following conditions precedent:
(i) The Title Company shall be true being irrevocably and correct as unconditionally committed to issue, upon the sole condition of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all payment of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and regularly scheduled premium, the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing Policy with respect to either (x) such Property, insuring Buyer in the Company or (y) amount of the Company after giving effect Purchase Price allocable to such Property that title to such Property is vested of record in Buyer on the Closing Date subject only to the transactions contemplated by Permitted Exceptions (and, to the Branch Purchase Agreement.extent provided in Section 3.3, any New Matters);
(bii) The obligation Except to the extent such matters are the responsibility of the Company Buyer under the Management Agreement relating to consummate the Coronado South Property (during the time such Management Agreement is in effect), the physical condition of the Property shall be in at least substantially the same physical condition on the Closing shall be Date as on the Effective Date, reasonable wear and tear and loss by casualty or condemnation excepted (subject to the condition that all representations and warranties and other statements provisions of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated herebyArticle VI); and
(3iii) To the conditions extent any of the following would reasonably be expected to materially and adversely affect the Buyer, any Property or Buyer's ownership of such Property after the Closing Date (including but not limited to the ability of Buyer to operate such Property as a multifamily residential property), as of the Closing Date:
(A) There shall be no litigation, administrative action or governmental proceeding pending or threatened in writing by any applicable governmental agency against a Property or the Seller of such Property, which seeks to restrain or prohibit the purchase and sale of the Property; provided, however, that in the event of any such litigation, administrative action or proceeding, Buyer's obligation to purchase such Property shall not terminate if, within ten (10) business days, such action is dismissed or a court order is issued allowing the sale to proceed; and provided, further, that in the event the Closing of such Property proceeds on the basis of such a court order or in the event of any litigation, administrative action or governmental proceeding pending or threatened in writing against a Property or the Seller of such Property which seeks to obtain damages or a discovery order with respect to this Agreement or the purchase and sale of the Property, but which does not seek to restrain or prohibit the purchase and sale of the Property, the Closing of such Property shall proceed and Sellers hereby agree to protect, indemnify and hold harmless Buyer and its subsidiaries, affiliates, partners and constituent entities, and all their respective employees, shareholders, officers and directors, successors and assigns, from and against any Losses (but specifically excluding lost profits) arising from such litigation or administrative action or other governmental proceeding, and such indemnity shall not be limited by the provisions of Section 4.7; and
(B) Except to the extent such proceedings are the subject of Sellers' indemnity as set forth in the second paragraph of Section 10 4.7, no proceedings shall be pending or threatened in writing by the applicable governmental agency which could or would cause the redesignation or other modification of the Branch Purchase Agreementzoning classification of, other than or of any building code requirements applicable to, the condition set forth in Section 10.3(e) Property or any portion thereof which would reasonably be expected to have a material adverse effect on Buyer's ability to own, operate, maintain and repair such Property as a multi-family residential property. The failure of any of the Branch Purchase Agreement foregoing conditions to occur solely with respect to the Company’s acceptance any Property shall not be deemed to be a failure of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedsuch condition with respect to any other Property.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (United Dominion Realty Trust Inc), Purchase and Sale Agreement (Essex Property Trust Inc)
Conditions. Notwithstanding anything in this Agreement or the Plan to the contrary: (a) The obligation the Company may, if it shall determine it necessary or desirable for any reason, at the time of award of any Option or the issuance of any shares of Common Stock pursuant to any Option, require the recipient of the Investor to consummate the Closing shall be subject Option, as a condition to the receipt thereof or to the receipt of shares of Common Stock issued pursuant thereto, to deliver to the Company a written representation of present intention to acquire the Option or the shares of Common Stock issued pursuant thereto for its, his or her own account for investment and not for distribution; and (b) if at any time the Company further determines, in its sole discretion, that the listing, registration or qualification (or any updating of any such document) of any Option or the shares of Common Stock issuable pursuant thereto is necessary on any securities exchange or under any federal or state securities or blue sky law, or that the consent or approval of any governmental regulatory body is necessary or desirable as a condition that all representations and warranties and of, or in connection with the award of any Option, the issuance of shares of Common Stock pursuant thereto, or the removal of any restrictions imposed on such shares, such Option shall not be awarded or such shares of Common Stock shall not be issued or such restrictions shall not be removed, as the case may be, in whole or in part, unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Company. Notwithstanding any other statements provision of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of Plan, this Agreement or some any other date shall agreements entered into pursuant to the Plan, the Company will not be true required to issue any shares of Common Stock under this Agreement or the Plan, and correct as a Participant may not sell, assign, transfer or otherwise dispose of such date), except for such failures to be so true and correct (without giving effect shares of Common Stock issued pursuant to any qualification as to materiality Options granted under this Agreement or Material Adverse Effect contained thereinthe Plan, unless (a) as would not have, individually there is in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) such shares a registration statement under the Company Securities Act, and any applicable state or (y) foreign securities laws or an exemption from such registration under the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
Securities Act and applicable state or foreign securities laws, and (b) there has been obtained any other consent, approval or permit from any other regulatory body which the Administrator, in its sole discretion, deems necessary or advisable. The obligation Company may condition such issuance, sale or transfer upon the receipt of any representations or agreements from the parties involved, and the placement of any legends on certificates representing shares of Common Stock, as may be deemed necessary or advisable by the Company in order to comply with such securities law or other restrictions. The Administrator may restrict the rights of Participants to the extent necessary to comply with Section 16(b) of the Exchange Act, the Code or any other applicable law or regulation. The grant of an Option pursuant to this Agreement or the Plan shall not limit in any way the right or power of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement make adjustments, reclassifications, reorganizations or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all changes of its obligations hereunder theretofore capital or business structure or to be performed.
(c) The obligation of each of the Investor and the Company merge, exchange or consolidate or to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law dissolve, liquidate, sell or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor transfer all or any part of its affiliates to file a prior notice under the Change in Bank Control Act, business or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedassets.
Appears in 2 contracts
Samples: Option Agreement (Global Pari-Mutuel Services, Inc.), Non Qualified Stock Option Agreement (Global Pari-Mutuel Services, Inc.)
Conditions. 3.1 Completion of the Subscription shall be conditional upon the following conditions having been satisfied:
(a) The obligation the passing of an ordinary resolution by the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements independent shareholders of the Company shall be true and correct as at the general meeting of the date of this Agreement Company for approving the Specific Mandate and the date allotment and issue of the Closing New Shares by the Company in accordance with the Applicable Law (except those representations and warranties that by their terms speak specifically as including the GEM Listing Rules);
(b) the Listing Committee of the date Hong Kong Stock Exchange granting approval for the listing of, and permission to deal in, the New Shares on the Hong Kong Stock Exchange and such approval and permission remaining in full force and effect;
(c) the passing of this Agreement or some other date shall be true and correct as an ordinary resolution by the shareholders of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in at the general meeting of the Company for approving the increase of authorised share capital of the Company to HK$65,000,000 divided into 650,000,000 shares of HK$0.1 each;
(d) all material respects necessary governmental approvals, consents, filings and reports for the completion of the Subscription having been obtained or duly filed (as applicable) by the Company;
(e) all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); necessary governmental, shareholders’ and the condition that since third parties’ approvals, consents, filings and reports for the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either completion of the Subscription having been obtained or duly filed (xas applicable) by the Company or Subscriber; and
(yf) the Company after giving effect to the transactions contemplated by the Branch Purchase Acquisition Agreement having become unconditional in accordance with its terms (other than any condition relating to this Agreement having become unconditional).
3.2 The Company shall use all reasonable efforts to achieve satisfaction of the Conditions (a), (b), (c), (d) and (f) as soon as possible before the Long Stop Date, and the Subscriber shall use all reasonable efforts to achieve satisfaction of the Condition (e) as soon as possible before the Long Stop Date.
3.3 The conditions specified in clause 3.1 above are not capable of being waived by any of the parties hereto.
3.4 In the event that Completion does not take place by the Long Stop Date, the parties shall then consult each other and discuss a later date for the satisfaction of the Conditions and the Completion as the parties may agree in writing. In the event that the parties cannot agree to a later date, either party shall be entitled to terminate this Agreement by written notice to the other party and this Agreement and all rights and obligations of the parties hereunder shall cease and terminate save for accrued rights and obligations of the parties under this Agreement.
(b) The obligation 3.5 Each of the Company Parties shall, at the request of the relevant governmental authorities referred to consummate in clause 3.1 (the Closing Approval Authorities), furnish such information, supply such documents and do all such acts and things as may reasonably be required by such Approval Authorities in connection with the fulfillment of the Conditions in respect of such party, and each party shall be subject responsible for its own fees in relation thereto. At the request of a party, the other party shall update such party of the progress of the application for the approvals or consents from the Approval Authorities in relation to the condition that all representations and warranties and other statements of the Investor shall be true and correct Subscription as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically soon as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedpossible.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 2 contracts
Samples: Subscription Agreement (BIT Mining LTD), Subscription Agreement
Conditions. (a) The obligation respective obligations of the Investor parties to consummate the Closing shall be Subject Share Purchase are subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of fulfillment, prior to or concurrently with the Closing (except those representations and warranties that by their terms speak specifically as hereinafter defined), of each of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures following conditions:
(i) Any waiting period applicable to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; Subject Share Purchase under the condition that the Company HSR Act shall have performed in all material respects all of its obligations hereunder theretofore to be performed expired or been terminated; and
(without giving effect to any qualification as to materiality ii) No statute, rule, regulation, order, writ, injunction, judgment or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect decree shall have occurred and be continuing with respect to either (x) been enacted, promulgated, entered or enforced by any federal or state court or other Governmental Authority which has the Company effect of making illegal, impeding or (y) otherwise restraining or prohibiting the Company after giving effect to the transactions contemplated by the Branch Purchase AgreementSubject Share Purchase.
(b) The obligation obligations of CREC to purchase and pay for the Company to consummate the Closing shall be Aggregate Subject Shares are subject to the condition that all fulfillment, prior to or concurrently with the Closing, of each of the conditions set forth in Section 7.2(a) and (b) of the Merger Agreement and to each of the following additional conditions (any one or more of which may be waived, in whole in part, by CREC):
(i) Each of the representations and warranties and other statements of the Investor Shareholder Parties contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically Date as of the date of this Agreement or some other date shall be true and correct as of if made on such date); and the condition that the Investor and
(ii) The Shareholder Parties shall have performed and complied in all of its obligations hereunder theretofore material respects with all provisions, covenants and conditions contained in this Agreement required to be performedperformed or complied with by them prior to or on the Closing Date.
(c) The obligation obligations of the Shareholder Parties to sell and deliver the Subject Shares are subject to the fulfillment, prior to or concurrently with the Closing, of each of the Investor and following conditions (any one or more of which may be waived, in whole in part, by the Company to consummate Shareholder Parties, but only if all Shareholder Parties waive the Closing shall be subject condition with respect to the following additional conditions:Aggregate Subject Shares).
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities Each of the Company would representations and warranties of CREC contained in this Agreement shall be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor true and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date correct in all material respects as of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Date as if made on such date; and
(3ii) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), CREC shall have been satisfied performed and complied in all material respects with all provisions, covenants and conditions contained in this Agreement required to be performed or waivedcomplied with by it prior to or on the Closing Date.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Janal LTD Partnership), Stock Purchase Agreement (Cavco Industries Inc)
Conditions. (a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements following obligations of the Company shall be true ---------- satisfied or fulfilled on or prior to the date of each Closing, unless otherwise agreed to in writing by the Offering Agent:
(a) The Company shall have delivered to the Offering Agent, at the Initial Closing, (i) a currently-dated long-form good standing certificate or telegram from the Secretary of State where the Company is incorporated; (ii) the certificate of incorporation of the Company, as currently in effect, certified by the secretary of the Company; and correct as (iii) by-laws of the Company certified by the secretary of the Company.
(b) There shall have occurred no event which had a Material Adverse Effect on the Company or its business, assets, prospects or the Company's securities since the date of this Agreement and Agreement.
(c) No litigation or administrative proceeding shall have been threatened or commenced against the date Company which (i) seeks to enjoin or otherwise prohibit or restrict the consummation of the Closing transactions contemplated by this Agreement or (except those representations ii) if adversely determined, would have a Material Adverse Effect on the Company or the Company's securities.
(d) The Company shall have delivered to the Offering Agent a certificate of its principal executive and warranties that by their terms speak specifically financial officers as of to the date matters set forth in Paragraphs 8(a), (b) and (c) of this Agreement and to the further effect that (i) the Company is not in default, in any respect, under any note, loan agreement, security agreement, mortgage, deed of trust, indenture, contract, alliance agreement, lease, license, joint venture agreement, agreement or some other date shall be true and correct as of such date)instrument to which it is a party, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually disclosed in the aggregate, Prospectus and except where such default has not and will not have a Material Adverse Effect; (ii) the Company's representations and warranties contained in this Agreement are true and correct in all respects on such date with the same force and effect as if made on such date; (iii) there has been no amendment or changes to the Company's certificates of incorporation or by-laws or authorizing resolutions from those delivered pursuant to Paragraph 8(a) of this Agreement; and (iv) no event has occurred which, with or without the lapse of time or giving of notice, or both, would constitute a breach or default thereof by the Company or would cause acceleration of any obligation of the Company, or could adversely affect the business, operations, financial condition that or prospects of the Company.
(e) The Offering Agent shall have received the opinion of Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx, special counsel for the Company, dated as of the Closing Date in form and substance reasonably satisfactory to the Offering Agent and its counsel.
(f) Subscriptions for at least the Minimum Amount of Offered Shares shall have been accepted by the Company.
(g) In addition to the right of the Offering Agent to terminate this Agreement and not consummate the transactions contemplated by this Agreement as a result of the failure of the Company to comply with any of its obligations set forth in this Agreement, this Agreement may be terminated by the Offering Agent by written notice to the Company at any time prior to the Initial Closing if, in the Offering Agent's sole judgment, (i) the Company shall have performed in all sustained a loss that is material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated Company, taken as a whole, whether or not insured, by the Branch Purchase Agreement.
(b) The obligation reason of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and fire, earthquake, flood, accident or other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement calamity, or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of from any applicable law labor dispute or regulation and no judgment, injunctioncourt or government action, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulatordecree; (ii) require the Investor trading in securities on any exchange or any of its affiliates to become a bank holding company; system shall have been suspended or (iii) cause the Investorlimited, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation either generally or lawspecifically, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance 's Common Stock; (iii) material governmental restrictions have been imposed on trading in securities, generally or specifically, with respect to the Company's Common Stock (not in force and effect on the date of the proceeds of the Acceptable Financing (as defined in the Branch Purchase this Agreement), ; (iv) a banking moratorium shall have been satisfied declared by Federal or waivedNew York State authorities; (v) an outbreak of major international hostilities or other national or international calamity shall have occurred; (vi) the Congress of the United States or any state legislative body shall have passed or taken any action or measure, or such bodies or any governmental body or any authoritative accounting institute, or board, or any governmental executive shall have adopted any orders, rules or regulations, which the Offering Agent reasonably believes is likely to have a Material Adverse Effect on the business, financial condition or financial statements of the Company or the market for the Common Stock; or (vii) there shall have been, in the Offering Agent's judgment, a material decline in the Dow Xxxxx Industrial Index or the market price of the Common Stock at any time subsequent to the date of this Agreement.
Appears in 1 contract
Conditions. (a) The obligation obligations of the Investor Company to consummate sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing shall be Date are subject to the condition that all representations the Prospectus, as amended or supplemented, in relation to the Shares, shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period described for such filing by the rules and warranties regulations under the Securities Act, and other statements as of the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall be in effect or shall be pending or, to the knowledge of the Company, threatened by the Commission; and no notice objecting to its use pursuant to Rule 401(g)(2) shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall have been instituted or threatened. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 3(a)(62) under the Exchange Act; and
(ii) there shall be true not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and correct its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the date of Shares on the Closing (except those representations terms and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; manner contemplated in the condition that the Company shall have performed in all material respects all Time of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase AgreementSale Prospectus.
(b) The obligation Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be contained in this Agreement are true and correct as of the date of this Agreement Closing Date and that the date Company has complied with all of the Closing (except those representations agreements and warranties that by their terms speak specifically as satisfied all of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of conditions on its obligations hereunder theretofore part to be performedperformed or satisfied hereunder on or before the Closing Date. Any officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The obligation Underwriters shall have received on the Closing Date an opinion, including an opinion with regard to the Company’s qualification and taxation as a REIT, and a negative assurance letter of Cravath, Swaine & Xxxxx LLP, outside counsel for the Company, each dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(d) The Underwriters shall have received on the Closing Date an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, tax counsel for the Company, with regard to the Company’s qualification and taxation as a REIT, dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of the General Counsel or Associate General Counsel to the Company, dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion and a negative assurance letter of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, each dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(g) The Underwriters shall have received, on each of the Investor date hereof and the Company to consummate Closing Date, a letter dated the date hereof or the Closing shall be subject Date, as the case may be, in form and substance satisfactory to the following additional conditions:
(1) no provision of any applicable law or regulation Underwriters, from PricewaterhouseCoopers LLP, independent public accountants, containing statements and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any information of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates type ordinarily included in accountants’ “comfort letters” to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement underwriters with respect to the Company’s acceptance historical and pro forma financial statements and certain financial information of the proceeds Company contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than three business days prior to the Closing Date.
(h) The Underwriters shall have received, on each of the Acceptable Financing (date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as defined the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants to LTS, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the consolidated financial statements and certain financial information of LTS contained in the Branch Purchase Agreement)Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that each letter shall use a “cut-off date” not earlier than October 31, 2017.
(i) The Shares shall have been satisfied approved for listing on the New York Stock Exchange (“NYSE”), subject only to official notice of issuance.
(j) On or waivedprior to the Closing Date, the Company shall have furnished to the Underwriters such further certificates and documents as the Underwriters may reasonably request.
(k) The representations and warranties of the Company contained herein shall be true and correct on and as of the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Crown Castle International Corp)
Conditions. (a) The obligation of the Investor Purchasers to consummate purchase the Closing shall be Series A Notes under this Agreement is subject to the condition that all satisfaction or waiver of each of the following conditions:
(i) All the representations and warranties and other statements of the Company Issuer in this Agreement shall be true and correct in all material respects (other than representations and warranties with a materiality qualifier, which shall be true and correct as of the date of this Agreement written) at and the date as of the Closing (except those representations Date after giving effect to the Transactions with the same force and warranties that by their terms speak specifically effect as if made on and as of such date. On or prior to the Closing Date, the Issuer shall have performed or complied in all material respects with all of the agreements and satisfied in all material respects all conditions on its part to be performed, complied with or satisfied pursuant to this Agreement.
(ii) The Offering Circular shall have been printed and copies made available to the Purchasers not later than 12:00 noon, New York City time, on the first business day following the date of this Agreement or some other at such later date and time as the Purchasers may approve.
(iii) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or interfere with the consummation of any of the Transactions; and no stop order suspending the qualification or exemption from qualification of any of the Series A Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or be pending or contemplated.
(iv) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of any of the Transactions. No Proceeding shall be true and correct as of such date)pending or threatened other than Proceedings that (A) if adversely determined could not, except for such failures to be so true and correct (without giving effect to any qualification as to materiality singly or Material Adverse Effect contained therein) as would not have, individually in the aggregate, adversely affect the issuance or marketability of the Series A Notes and (B) could not reasonably be expected to have a Material Adverse Effect.
(v) Since the date as of which information is given in the Offering Circular, there shall not have been any Material Adverse Change.
(vi) The Notes shall have (A) been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the PORTAL market, and (B) received a rating of B and B2 from Standard & Poor's Corporation and Xxxxx'x Investors Services, Inc., respectively.
(vii) The Purchasers shall have received on the Closing Date (A) certificates dated the Closing Date, signed by (1) the President and (2) the principal financial or accounting officer of the Issuer, on behalf of the Issuer, (x) confirming the matters set forth in paragraphs (i) through (v) of this Section 9(a) and (y) certifying as to such other matters as the Purchasers may reasonably request, (B) a certificate, dated the Closing Date, signed by the Secretary of the Issuer, certifying such matters as the Purchasers may reasonably request and (C) a certificate of solvency, dated the Closing Date, signed by the principal financial or accounting officer of the Issuer substantially in the form previously approved by the Purchasers.
(viii) The Purchasers shall have received:
(1) an opinion of Xxxxxxx & Xxxxxx, counsel to the Issuer ("Winston & Xxxxxx"), dated the Closing Date, in the form of Exhibit A hereto; and
(2) an opinion, dated the condition Closing Date, of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx (Illinois), in form and substance reasonably satisfactory to the Purchasers covering such matters as are customarily covered in such opinions.
(ix) The Purchasers shall have received from Ernst & Young LLP (A) a customary comfort letter, dated the date of the Offering Circular, in form and substance reasonably satisfactory to the Purchasers, with respect to the financial statements and certain financial information contained in the Offering Circular, and (B) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Purchasers, to the effect that they reaffirm the statements made in the letter furnished pursuant to clause (A), except that the Company specified date referred to shall be a date not more than five days prior to the Closing Date.
(x) The Documents shall have performed been executed and delivered by all parties thereto and the Purchasers shall have received a fully executed original of each Document.
(xi) The Purchasers shall have received copies of duly executed payoff letters, UCC-3 termination statements, mortgage releases and other collateral releases and terminations, each in form and substance satisfactory to the Purchasers, evidencing
(1) the repayment of the outstanding indebtedness of the Issuer under the Old Credit Facility (as defined in the Offering Circular) and (2) the release of all Liens created under the Old Credit Facility on each item constituting Collateral under the Indenture, and each such release shall be in full force and effect.
(xii) The Purchasers shall have received copies of commitments to issue ALTA title insurance policies on the real property collateral in form and substance satisfactory to the Purchasers.
(xiii) The Trustee shall have received executed copies of each UCC-1 financing statement signed by the Issuer, naming the Trustee as secured party and filed in such jurisdictions as the Purchasers may reasonably require.
(xiv) The Issuer shall have entered into the New Credit Facility and an amendment to the Securities Purchase Agreement on or prior to the Closing.
(xv) Counsel to the Purchasers shall have been furnished with such documents as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in this Section 9 and in order to evidence the accuracy, completeness or satisfaction in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality of the representations, warranties or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementconditions herein contained.
(b) The obligation of the Company Issuer to consummate sell the Closing shall be Series A Notes under this Agreement is subject to the condition that all satisfaction or waiver of each of the following conditions:
(i) The Purchasers shall have delivered payment to the Issuer for the Series A Notes pursuant to Sections 2 and 4 of this Agreement.
(ii) All of the representations and warranties and other statements of the Investor Purchasers in this Agreement shall be true and correct in all material respects at and as of the date of this Agreement Closing Date, with the same force and the date of the Closing (except those representations effect as if made on and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(ciii) The obligation No injunction, restraining order or order of each any nature by a Governmental Authority shall have been issued as of the Investor Closing Date that would prevent or interfere with the issuance and sale of the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation Series A Notes; and no judgment, injunction, stop order suspending the qualification or decree shall prohibit the transactions contemplated hereby or prohibit the Investor exemption from owning or voting qualification of any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares Series A Notes in any jurisdiction shall not (i) require the Investor have been issued and no Proceeding for that purpose shall have been commenced or any of its affiliates to file a prior notice under the Change in Bank Control Act, be pending or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date contemplated as of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedDate.
Appears in 1 contract
Conditions. The obligations of the Initial Purchaser to purchase the Units under this Agreement are several and subject to the satisfaction by the Company or waiver by the Initial Purchaser of each of the following conditions:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of each of the Company and its Subsidiaries contained in this Agreement and in each of the Documents to which the Company or any of its Subsidiaries is a party shall be true and correct as of the date hereof and at the Closing Date. On or prior to the Closing Date, the Company, each of this Agreement its Subsidiaries that is a party thereto and each other party to the date Documents (other than the Initial Purchaser) shall have performed or complied with, in all material respects, all of the Closing (except those representations agreements and warranties that by satisfied all conditions on their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures respective parts to be performed, complied with or satisfied on or prior to the Closing Date pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as satisfy would not havenot, individually or in the aggregate, have a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the qualification or exemption from qualification of any of the Securities in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company to consummate the Closing shall after reasonable inquiry, be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct pending or contemplated as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that, as of the Closing Date, prevents the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding shall be pending or, to the knowledge of the Company after reasonable inquiry, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Units, and (B) would not, individually or in the aggregate, have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Final Offering Circular, there shall not have been any Material Adverse Change.
(e) The obligation Units, Notes and Warrants shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL market.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(g) The Initial Purchaser shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (1) the Chief Executive Officer and (2) the principal financial or accounting officer of the Company, on behalf of the Company, to the effect that (a) the representations and warranties set forth in Section 4 hereof, in each of the Documents and the Perfection Certificate are true and correct in all material respects with the same force and effect as though expressly made at and as of the Closing Date, (b) the Company has performed and complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), no event or events have occurred, no information has become known to the Company nor, except as disclosed in the Final Offering Circular, does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), other than as disclosed in the Final Offering Circular or contemplated hereby and thereby, neither the Company nor any Subsidiary of the Company has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company and its Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material the properties, business, operations, earnings, assets, liabilities or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company or any Subsidiary of the Company that is material to the properties, business, operations, earnings, assets, liabilities or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, and (e) the sale of the Notes has not been enjoined (temporarily or permanently),
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company, certifying such matters as the Initial Purchaser may reasonably request, including the approval by 80% of the authorized number of directors constituting the Board of Directors of the issuance of the Warrants and the Warrant Shares,
(iii) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in the form previously approved and provided to the Company by the Initial Purchaser or its counsel,
(iv) the opinion of Xxxxxx & Block LLP, counsel to the Company and the Guarantors, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser,
(v) an opinion of each of the Investor and the Company local counsel to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) Company listed on Schedule III hereto shall have furnished to the purchase by Initial Purchaser, at the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities request of the Company would be aggregated with or such Guarantor, its written opinion, dated the Investor’s securities Closing Date and addressed to the Initial Purchaser, in form and substance reasonably satisfactory to the Initial Purchaser,
(vi) an opinion, dated the Closing Date, of Xxxxx, Xxxxx, Xxxx & Maw LLP, special counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions, and
(vii) a representation and warranty certificate addressing collateral matters certified by an officer of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor in form and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect substance reasonably satisfactory to the purchase of the Investor Shares contemplated hereby); andInitial Purchaser.
(3h) the conditions set forth in Section 10 of the Branch Purchase AgreementThe Initial Purchaser shall have received from Xxxxx Xxxxxxxx, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance , (i) a customary comfort letter, dated the date of the proceeds Final Offering Circular, in form and substance reasonably satisfactory to the Initial Purchaser and its counsel, with respect to the financial statements and certain financial information contained in the Final Offering Circular, and (ii) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser and its counsel, to the effect that Xxxxx Xxxxxxxx reaffirms the statements made in its letter furnished pursuant to clause (i).
(i) Each of the Acceptable Financing Documents shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of each Document.
(j) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered or required to be delivered under or in connection with the Offering, the Documents or any transaction contemplated in the Documents.
(k) The Initial Purchaser shall have received the Final Offering Circular, and the terms of each Document shall conform in all material respects to the description thereof in the Final Offering Circular.
(l) The Collateral Agent shall have received (with a copy for the Initial Purchaser) on the Closing Date:
(i) the Pledged Shares, together with stock powers or other powers of transfer related thereto and executed in blank;
(ii) fully executed Control Agreements (in form and substance reasonably satisfactory to the Initial Purchaser and its counsel) with respect to (A) each Securities Account (as defined in the Branch Purchase Security Agreement) of each of the Company and the Guarantors that contains cash, cash equivalents and Investment Property (as defined in the Security Agreement) in an aggregate amount in excess of $250,000 as of the end of the most recently ended calendar month or at the Closing Date and (B) each Deposit Account (as defined in the Security Agreement) of each of the Company and the Guarantors that has a balance in excess of $250,000 as of the end of such month or at the Closing Date (other than xxxxx cash, payroll and zero-balance accounts with respect to which the average aggregate amount on deposit in all such accounts at the close of business for the five business days immediately preceding the Closing Date did not exceed $1,000,000);
(iii) appropriately completed copies of Uniform Commercial Code financing statements naming the Company and each Guarantor as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Initial Purchaser and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Security Agreement;
(iv) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any security agreement previously granted by any Person (including the Liens securing the 8% Notes);
(v) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Initial Purchaser and its counsel, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company or any Guarantor (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Agreement, other than such financing statements that evidence Permitted Liens);
(vi) copies of the policies of insurance (or binders or insurance certificates in respect thereof), as are required by the terms of the Security Agreement; and
(vii) such other approvals, opinions, or documents as the Initial Purchaser or the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Initial Purchaser or the Collateral Agent, as case may be. The Initial Purchaser and its counsel shall be satisfied that (A) the Lien granted to the Collateral Agent, for the benefit of the Secured Parties in the Collateral is perfected and of the priority described in the Final Offering Circular; and (B) no Lien exists on any of the Collateral other than the Lien created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement, in each case subject to the Permitted Liens.
(m) The Initial Purchaser and its counsel shall be satisfied that all arrangements necessary for the filing of all Uniform Commercial Code financing statements or other similar financing statements and Uniform Commercial Code Form UCC-3 termination statements required pursuant to clause (l)(i) and (ii) above (collectively, the "Filing Statements") by CT Corporation System (or another similar filing service company acceptable to the Initial Purchaser or its counsel) in the appropriate filing offices within 10 days of the Closing Date have been made.
(n) The Company shall have been satisfied delivered the following documents and instruments with regard to each of the Premises prior to or waivedcontemporaneously with the Closing:
(i) to the Collateral Agent, as mortgagee, fully executed counterparts of Mortgages, each dated as of the Closing Date, duly executed by the Company, together with evidence of the completion (or satisfactory arrangements for the completion), of all recordings and filings of such Mortgage as may be necessary to create a valid, perfected Lien, subject to Permitted Liens, against the properties to be covered thereby;
(ii) to the Collateral Agent, mortgagee's title insurance policies in favor of the Collateral Agent, as mortgagee for the ratable benefit of the Collateral Agent and the Secured Parties, in an amount equal to 100% of the Fair Market Value of the Premises purported to be covered by the related Mortgage, insuring that title to such property is marketable and that the interests created by the Mortgages constitute valid Liens thereon free and clear of all Liens, defects and encumbrances other than Permitted Liens, and such policies shall also include, to the extent available, a revolving credit endorsement and such other endorsements as the Collateral Agent shall reasonably request and shall have the standard exceptions thereto deleted (other than the survey exception to the extent required in Section 7(n)(iii) below) and shall be accompanied by evidence of the payment in full of all premiums thereon; and
(iii) to the Collateral Agent, with respect to each of the covered Premises, the most recent survey of such Premises and, solely to the extent that the title company insuring the Lien of the respective Mortgages shall deem such survey acceptable to remove the standard survey exception from the applicable title policy and/or to issue a survey endorsement with respect thereto, the Company shall have such survey exception deleted and such survey endorsement delivered to the Collateral Agent.
(o) The Initial Purchaser shall have received substantially contemporaneously with the Closing a copy of the receipt of a payoff letter or lien release letter from each of the institutions listed on Schedule II attached hereto.
(p) The Initial Purchaser shall have received (i) evidence reasonably satisfactory to it that $55.7 million aggregate principal amount of 8% Senior Notes will be paid contemporaneously with Closing to the Redeemed 8% Senior Note Holders, and (ii) an executed copy of a supplemental indenture to the Indenture, dated as of April 8, 2003, between the Company and Xxxxx Fargo Bank Minnesota, National Association, as trustee, which supplemental indenture (including the amendments and lien release contained therein) shall be in full force and effect and in form and substance reasonably satisfactory to the Initial Purchaser and its counsel.
Appears in 1 contract
Conditions. (a) The obligation of any Agent, as agent of the Investor Company, at any time (“Solicitation Time”) to consummate solicit offers to purchase the Closing Notes, the obligation of any Agent to purchase Notes as principal pursuant to any Terms Agreement or otherwise, and the obligation of any other purchaser to purchase Notes shall in each case be subject subject: (1) to the condition that all representations and warranties of the Company herein and all statements of officers of the Company made in any certificate furnished pursuant to the provisions hereof are accurate (i) in the case of an Agent’s obligation to solicit offers to purchase Notes, at and as of such Solicitation Time and (ii) in the case of any Agent’s or any other statements purchaser’s obligation to purchase Notes, at and as of the time the Company accepts the offer to purchase such Notes and, as the case may be, at and as of the related Time of Delivery or time of purchase; (2) to the condition that at or prior to such Solicitation Time, time of acceptance, Time of Delivery or time of purchase, as the case may be, the Company shall have complied with all its agreements and all conditions on its part to be performed or satisfied hereunder; and (3) to the following additional conditions when and as specified:
(a) Prior to such Solicitation Time or corresponding Time of Delivery or time of purchase, as the case may be:
(i) the Prospectus as amended or supplemented (including, if applicable, the Pricing Supplement) with respect to such Notes shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the rating accorded any securities of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act;
(iii) there shall not have occurred any change or any development in or affecting particularly the business or properties of the Company or its subsidiaries which, in the judgment of the applicable Agent, materially impairs the investment quality of the Notes; and
(iv) (A) trading generally shall not have been suspended on or by, as the case may be, any of the New York Stock Exchange or the American Stock Exchange, minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities shall not have been required, on the New York Stock Exchange or the American Stock Exchange, by such Exchange or by order of the Commission or any other governmental authority having jurisdiction; (B) trading in any securities of the Company shall be true not have been suspended by the Commission or a national securities exchange or in any over-the-counter market; (C) any major disruption of settlements of securities shall not have occurred and correct as a general moratorium on commercial banking activities in New York shall not have been declared by either Federal or New York State authorities; or (D) there shall not have occurred any outbreak or escalation of hostilities in which the date United States is involved, a declaration of this Agreement and war by Congress, any major act of terrorism against the date United States, any other substantial national or international calamity or crisis or any other event or occurrence of a similar character if, in the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as judgment of such date)Agent or Agents or of such other purchaser, except for the effect of any such failures outbreak, escalation, declaration, calamity or other event or occurrence makes it impracticable or inadvisable to be so true market the Notes on the terms and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregatemanner contemplated in the General Disclosure Package or the Prospectus as amended or supplemented at the Solicitation Time or at the time such offer to purchase was made. Promptly after the determination by any such Agent or other purchaser that it is impractical or inadvisable to market the Notes, a Material Adverse Effectsuch Agent or other purchaser shall notify the Company of such determination in writing; but the condition that omission so to notify the Company shall have performed in all material respects all not act to modify the rights of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality the Agent or Material Adverse Effect contained thereinother purchaser under this Section 6(a)(iv)(A); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) On the Commencement Date, and in the case of a purchase of Notes by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, the General Counsel, the Managing Counsel or Senior Counsel to the Company and/or Squire, Xxxxxxx & Xxxxxxx (US) LLP, Counsel to the Company, as indicated in the applicable Prospectus Supplement shall have furnished to the relevant Agent or Agents their written opinion, dated the Commencement Date or Time of Delivery, as the case may be, in form and substance satisfactory to such Agent or Agents, to the effect that:
(i) The obligation Company has been duly incorporated and is an existing corporation in good standing under the laws of Ohio and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; KeyBank is a duly organized and validly existing national banking association under the laws of the United States and continues to hold a valid certificate to do business as such; each of the Company and KeyBank has full corporate power and authority to consummate conduct its business as described in the Closing shall Registration Statement, the General Disclosure Package (if applicable) and the Prospectus and is duly qualified to do business in each jurisdiction in which it owns or leases real property, except where the failure to be so qualified, considering all such cases in the aggregate, does not involve a material risk to the business, properties, financial position or results of operations of the Company and its subsidiaries taken as a whole; and all of the outstanding shares of capital stock of KeyBank has been duly authorized and validly issued, is fully paid and non-assessable (exceptions to be specified) and (except as otherwise stated in the Registration Statement) is owned beneficially by the Company subject to no security interest, other encumbrance or adverse claim.
(ii) This Agreement and any applicable Terms Agreement have been duly authorized, executed and delivered by the condition that Company.
(iii) The Notes conform in all representations material respects to the description thereof contained or incorporated by reference in the General Disclosure Package (if applicable), the Prospectus and warranties the applicable prospectus supplement, and such description conforms in all material respects to the rights set forth in the instruments defining the same.
(iv) The Notes have been duly and validly authorized and, when executed, authenticated and delivered in accordance with the terms of the applicable Indenture and issued to and paid for by any purchaser of Notes sold through an Agent as agent or any Agent as principal pursuant to any Terms Agreement or other agreement, will be entitled to the benefits of such applicable Indenture and will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms subject, as to enforcement, to bankruptcy, insolvency, reorganization and other statements similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(v) Each of the Investor shall be true Senior Indenture and correct as the Subordinated Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and legally binding instrument of the date Company enforceable in accordance with its terms subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the Indentures have been duly qualified under the Trust Indenture Act.
(vi) The issue and sale of the Notes and the execution and delivery by the Company of the Notes, the Indentures, this Agreement and any applicable Terms Agreement or other agreement pursuant to which an Agent purchases Notes as principal and the date consummation of the Closing (except those representations transactions herein and warranties that by their terms speak specifically as therein contemplated will not conflict with or result in a breach or violation of any of the date terms and provisions of, or constitute a default under, any statute, rule or regulation, any agreement or instrument known to such counsel to which the Company or any subsidiary of this Agreement the Company is a party or some other date shall be true by which it or any of them are bound or to which any of the property or assets of the Company or any its subsidiaries is subject and correct that is material to the Company and its subsidiaries, taken as a whole, the Company’s Articles of Incorporation or Regulations, or any order known to such date); and counsel of any court or governmental agency or body having jurisdiction over the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedCompany.
(cvii) No consent, approval, authorization, order, registration or qualification of or filing with any court or governmental agency or body is required for the issue and sale of the Notes or the consummation of the other transactions contemplated by this Agreement, any applicable Terms Agreement or other agreement pursuant to which an Agent purchases Notes as principal, or the Indentures, except such consents, approvals, authorizations, registrations or qualifications as have been obtained under the Securities Act and the Trust Indenture Act and as may be required under state securities or Blue Sky laws in connection with offers and sales of the Notes from the Company and with purchases of Notes.
(viii) The obligation of Registration Statement is effective under the Securities Act; any required amendment or supplement to each of the Investor and the Company to consummate the Closing shall be subject prospectus relating to the following additional conditions:
offered Notes (1including the Prospectus) no provision pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of any applicable law or regulation Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and no judgment, injunction, order or decree shall prohibit within the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase time period required by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated herebyRule 433(d); and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened by the Commission.
(3ix) the conditions set forth in Section 10 Such counsel is of the Branch Purchase Agreementopinion ascribed to it in the Prospectus Supplement under the caption “Material United States Tax Considerations,” if any.
(x) Such counsel (A) is of the opinion that at the time the Registration Statement, including without limitation the Rule 430B Information, became effective or is deemed effective, and at the date such opinion is delivered, the Registration Statement and the Prospectus, and at the time they were filed, each document incorporated by reference therein (other than the condition financial statements, including the notes and schedules thereto and the audit reports thereon, or any other financial and statistical data set forth or referred to therein or in Section 10.3(e) any document incorporated by reference therein or any exhibits thereto, and the Statements of Eligibility of the Branch Purchase Agreement Trustee on Form T-1 filed as an exhibit thereto, as to which we express no opinion), complied as to form in all material respects with respect to the Company’s acceptance requirements of the proceeds of Securities Act, the Acceptable Financing (as defined in Exchange Act, the Branch Purchase Agreement), shall have been satisfied or waived.Trust Indenture Act and the respective rules thereunder;
Appears in 1 contract
Conditions. (a) 7.1 Conditions to Each Party's Obligation to Effect the Mergers. The obligation respective obligations of each party to effect the Investor to consummate the Closing Mergers shall be subject to the condition that all representations and warranties and other statements fulfillment at or prior to the Effective Date of the Company shall be true and correct as following conditions:
(a) No preliminary or permanent injunction or other order by any Federal or state court or by any governmental or regulatory body in the United States which prevents the FILING #0001705193 PG 60 OF 193 VOL B-00116 FILED 03/20/1997 03:00 PM PAGE 03426 SECRETARY OF THE STATE CONNECTICUT SECRETARY OF THE STATE consummation of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement Mergers or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementhereby shall have been issued and remain in effect (each party agreeing to use its best efforts to have any such injunction lifted and to seek to avoid any such injunction).
(b) The obligation No statute, rule or regulation shall have been enacted by the government (or any governmental body or agency) of the Company to consummate United States or any state thereof that prevents the Closing shall be subject to the condition that all representations and warranties and other statements consummation of the Investor shall be true and correct as of Mergers or the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedtransactions contemplated hereby.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of No action or proceeding before any applicable law court or regulation any governmental or regulatory authority and no judgmentinvestigation by any governmental or regulatory authority shall have been commenced (and be pending), injunctionagainst the Companies, order SFX, the SFX Subs or decree shall prohibit any of their respective affiliates, associates, officers or directors seeking to prevent or materially delay the transactions contemplated hereby or prohibit the Investor from owning or voting challenging any of the Investor Shares;
(2) terms or provisions of this Agreement or seeking material damages in connection therewith; provided, however, that in the purchase case of an action or proceeding brought by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than a governmental or regulatory authority, the condition set forth in Section 10.3(ethis paragraph (d) of the Branch Purchase Agreement shall be deemed to have been satisfied with respect to such action or proceeding of SFX, the Company’s acceptance of SFX Subs and the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Companies shall have been satisfied provided with an opinion of counsel satisfactory to them to the effect that it is reasonably probable that the relief sought in such action or waivedproceeding will not be granted.
Appears in 1 contract
Conditions. The obligations of the Initial Purchasers to purchase and pay for the Offered Securities as provided for under this Agreement on the First Closing Date and, with respect to the Optional Additional Securities, each Option Closing Date, are subject to the performance by the Company and each of the Guarantors of their respective covenants and obligations hereunder and the satisfaction of each of the following conditions:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company and the Guarantors contained in this Agreement and in each of the Documents shall be true and correct as of the date hereof and at the First Closing Date as though then made and, with respect to the Optional Additional Securities, as of this Agreement each Option Closing Date as though then made. On or prior to the First Closing Date and, with respect to the Optional Additional Securities, each Option Closing Date, the Company and the date Guarantors and each other party to the Documents (other than the Initial Purchasers) shall have performed or complied with all of the Closing (except those representations agreements and warranties that by satisfied all conditions on their terms speak specifically as respective parts to be performed, complied with or satisfied pursuant to the Documents, including, without limitation, all of the date of this Agreement or some conditions set forth below (other date shall be true and correct as of such date), except for such failures than conditions to be satisfied by such other parties, which the failure to so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as satisfy would not havenot, individually or in the aggregate, have a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation No injunction, restraining order or order of the Company to consummate the Closing any nature by a Governmental Authority shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct have been issued as of the date of this Agreement and First Closing Date and, with respect to the date Optional Additional Securities, each Option Closing Date, that would prevent or materially interfere with the consummation of the Closing (except those representations Offering or any of the transactions contemplated under the Documents; and warranties no stop order suspending the qualification or exemption from qualification of any of the Securities in any jurisdiction shall have been issued and no Proceeding for that by their terms speak specifically purpose shall have been commenced or, to the knowledge of the Company, after due inquiry, be pending or contemplated as of the date of this Agreement or some other date shall be true and correct as of such date); and First Closing Date and, with respect to the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedOptional Additional Securities, each Option Closing Date.
(c) The obligation of each No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Investor First Closing Date and, with respect to the Optional Additional Securities, each Option Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding shall be pending or, to the knowledge of the Company, after due inquiry, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Securities or the issuance of the Shares upon conversion of the Offered Securities at the option of the holders thereof, and (B) would not, individually or in the aggregate, have a Material Adverse Effect. The Company shall not have amended or supplemented the Time of Sale Document or the Final Offering Memorandum unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement at least two business days prior to the proposed use, and shall not have reasonably objected to such amendment or supplement.
(d) Subsequent to the respective dates as of which data and information is given in the Time of Sale Document and the Company to consummate Final Offering Memorandum, there shall not have been any Material Adverse Change.
(e) The Nasdaq Global Market shall have issued a letter concurring with the Closing shall be subject Company’s view that the issuance of the Securities pursuant to the following additional conditionsterms hereof and of the Securities and the Indenture does not require shareholder approval. The Nasdaq Global Market shall have approved the Company’s listing application for the Shares to be issued upon conversion of the Securities and the Shares shall have been approved for quotation on the Nasdaq Global Market. The Company’s Common Stock shall not have been suspended by the SEC or the Nasdaq Global Market.
(f) The Securities shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market and all agreements set forth in the representation letter of the Company and the Guarantors to DTC relating to the approval of the Securities by DTC for “book-entry” transfer shall have been complied with.
(g) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(h) The Initial Purchasers shall have received on the applicable Closing Date:
(i) certificates dated the First Closing Date and, with respect to the Optional Additional Securities, each Option Closing Date, signed by (1) no provision of any applicable law or regulation the Chief Executive Officer and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor principal financial or accounting officer of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActCompany, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities on behalf of the Company would be aggregated and the Guarantors, to the effect that (a) the representations and warranties set forth in Section 4 hereof, in each of the Documents and the Perfection Certificate are true and correct in all material respects with the Investor’s securities same force and effect as though expressly made at and as of the Company for purposes of any bank regulation or lawFirst Closing Date and, with respect to collectively be deemed to ownthe Optional Additional Securities, control or have the power to vote securities which each Option Closing Date, (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other personsb) would represent more than 9.9% of any class of voting securities of the Company outstanding and the Guarantors have performed and complied with all agreements and satisfied all conditions in all material respects on their part to be performed or satisfied at or prior to the First Closing Date and, with respect to the Optional Additional Securities, each Option Closing Date, (c) at the First Closing Date and, with respect to the Optional Additional Securities, each Option Closing Date, since the date hereof or since the date of the Closing most recent financial statements in the Time of Sale Document and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after giving effect the date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Time of Sale Document and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), other than as described in the Time of Sale Document and the Final Offering Memorandum or contemplated hereby, neither the Company nor any Subsidiary of the Company has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the purchase Company and the Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations or prospects of the Investor Shares Company and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company or any Subsidiary of the Company that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, (e) there shall have been no dividend or distribution of any kind declared, paid or made by the Company on any class of its Common Stock, and (f) the sale of the Securities has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the First Closing Date and, with respect to the Optional Additional Securities, each Option Closing Date, executed by the Secretary of the Company and each Guarantor, certifying such matters as the Initial Purchasers may reasonably request.
(iii) a certificate of solvency, dated the First Closing Date and, with respect to the Optional Additional Securities, each Option Closing Date, executed by the principal financial or accounting officer of the Company substantially in the form previously approved by the Initial Purchasers or their counsel.
(iv) evidence satisfactory to the Initial Purchasers and the Collateral Agent that the insurance policies required by the Indenture and any Collateral Agreement are in full force and effect together with, in respect of those insurance policies maintained with respect to the properties of the Guarantors, (A) endorsements naming the Collateral Agent, on behalf of the secured parties, as an additional insured and/or loss payee and (B) a provision that cancellation, material addition in amount or material change in coverage shall not be effective until 30 days after written notice to the Collateral Agent.
(v) evidence acceptable to the Initial Purchasers of payment or arrangements for payment by the Guarantors of all applicable recording taxes, fees, charges, costs and expenses required for the recording of the Collateral Agreements.
(vi) all certificates, agreements or instruments representing or evidencing Capital Stock pledged to the Collateral Agent (the “Pledged Shares”) accompanied by instruments of transfer and stock powers undated and endorsed in blank.
(vii) the opinion of Xxxxxxx Xxxxx LLP, counsel to the Company and the Guarantors, dated the First Closing Date and, with respect to the Optional Additional Securities, each Option Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(viii) the opinion of Xxxxxxx Xxxx & Xxxxxxxxx LLP, regulatory counsel to the Company, dated the First Closing Date and, with respect to the Optional Additional Securities, each Option Closing Date, reasonably satisfactory to the Initial Purchasers in substantially the form of Exhibit A attached hereto.
(ix) the FCC opinion of Xxxxxxx Xxxx & Xxxxxxxxx LLP, regulatory counsel to the Company, dated the First Closing Date and, with respect to the Optional Additional Securities, each Option Closing Date, reasonably satisfactory to the Initial Purchasers in substantially the form of Exhibit B attached hereto.
(x) an opinion, dated the First Closing Date and, with respect to the Optional Additional Securities, each Option Closing Date, of Paul, Hastings, Xxxxxxxx &Walker LLP, counsel to the Initial Purchasers, in form and substance satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(i) The Initial Purchaser shall have received from Ernst & Young LLP, independent registered public accounting firm, and KBA Group LLP, independent registered public accounting firm, with respect to the Company and its predecessor, (A) a customary comfort letter, dated the date hereof, in form and substance reasonably satisfactory to the Initial Purchasers and their counsel, with respect to the financial statements and certain financial information contained in the Preliminary Offering Memorandum and the Final Offering Memorandum (in the case of Ernst & Young LLP) and the Time of Sale Document (in the case of KBA Group LLP), and (B) a customary comfort letter, dated the First Closing Date and, with respect to the Optional Additional Securities, each Option Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and its counsel, to the effect that Ernst& Young LLP and KBA Group LLP reaffirm the statements made in their letters furnished pursuant to clause (A) with respect to the financial statements and certain financial information contained in the Time of Sale Document and the Final Offering Memorandum.
(j) Each of the Documents shall have been executed and delivered by all parties thereto (other than the Initial Purchasers), and the Initial Purchasers shall have received a fully executed original of each Document.
(k) The Initial Purchasers shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any transaction contemplated herebyin the Documents.
(l) The terms of each Document shall conform in all material respects to the description thereof in the Time of Sale Document and the Final Offering Memorandum.
(m) The Collateral Agent shall have received (with a copy for each of the Initial Purchasers) on the First Closing Date:
(i) appropriately completed copies of Uniform Commercial Code financing statements naming the Company and each Guarantor as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Collateral Agreements;
(ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any security agreement previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the First Closing Date, listing all effective financing statements which name the Company or any Guarantor (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Agreement, other than such financing statements that evidence Permitted Liens);
(iv) such other approvals, opinions, or documents as the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Collateral Agent; and
(3v) the conditions set forth in Section 10 Collateral Agent and its counsel shall be reasonably satisfied that (i) the Lien granted to the Collateral Agent, for the benefit of the Branch Purchase Agreement, secured parties in the collateral described above is of the priority described in the Time of Sale Document and the Final Offering Memorandum; and (ii) no Lien exists on any of the collateral described above other than the condition set forth Lien created in Section 10.3(e) favor of the Branch Purchase Agreement with respect Collateral Agent, for the benefit of the secured parties, pursuant to a Collateral Agreement, in each case subject to the Permitted Liens.
(n) The Company’s shareholders, holding a sufficient number of shares of the Company’s acceptance Common Stock to approve the terms of the proceeds Securities and the issuance of the Acceptable Financing (as defined in Shares upon the Branch Purchase Agreement)conversion thereof pursuant to the terms of the Securities and the Indenture, shall have been satisfied or waivedirrevocably agreed to vote in favor of a resolution to approve the terms of the Securities and such issuance of Shares.
Appears in 1 contract
Samples: Purchase Agreement (FiberTower CORP)
Conditions. (a) Conditions to Series B Investors’ Obligations to Effect the Closing. The obligation of the each Series B Investor to consummate the Closing shall be transactions contemplated by Section 2.1, Section 2.2 and Section 2.3 is subject to the condition that all representations and warranties and other statements satisfaction, on or before the Closing Date, of the Company following conditions, any of which may be waived in writing by such Series B Investor in its sole discretion:
(i) The Fundamental Representations shall be true have been true, accurate and correct not misleading in all respects on and as of the date of this Agreement and the date on and as of the Closing (except those representations Date with the same effect as if made on and warranties that by their terms speak specifically as of the date Closing Date (except for such Fundamental Representations that are made as of this Agreement or some other date a specific date, which shall be true and correct speak only as of such date), except for and all other representations and warranties of the Company contained in Section 3.1 shall have been true, accurate and not misleading in all respects (in the case of any such failures to be so true and correct (without giving effect to representation or warranty containing any qualification as to materiality or Material Adverse Effect contained thereinqualification) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed or in all material respects all (in the case of its obligations hereunder theretofore to be performed (any such representation or warranty without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); qualification) on and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date on and as of the Closing Date with the same effect as if made on and as of the Closing Date (except those for such representations and warranties that by their terms speak specifically are made as of the date of this Agreement or some other date a specific date, which shall be true and correct speak only as of such date); and the condition that the Investor .
(ii) The Company shall have performed and complied in all material respects with all, and not be in breach or default in any material respect under any, agreements, covenants, conditions and obligations contained in this Agreement and the other Transaction Documents that are required to be performed or complied with on or before the Closing Date.
(iii) No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins, prevents, prohibits or otherwise makes illegal the consummation of the Contemplated Transactions, or imposes any damages or penalties in connection with the Contemplated Transactions; and no action, suit, proceeding or investigation shall have been instituted or threatened by any Governmental Authority or any third party that seeks to restrain, enjoin, prevent, prohibit or otherwise make illegal the consummation of the Contemplated Transactions, or imposes any damages or penalties in connection with the consummation of the Contemplated Transactions.
(iv) The Company shall have obtained any and all Authorizations necessary for the consummation by the Company of the issuance of the applicable Series B Preferred Shares or the Series B Warrant to such Series B Investor and the entry by the Company into the Transaction Documents to which it is a party and the performance by it of its obligations hereunder theretofore contemplated thereby (other than those Authorizations to be performedobtained after the Closing pursuant to the Transaction Documents), all of which shall be in full force and effect.
(cv) No event, development or state of circumstances shall have occurred or come to exist which, individually or in the aggregate, has had or would reasonably be expected to have or result in a Material Adverse Effect.
(vi) The obligation of each Company shall have delivered to the Series B Investors a certificate, dated the Closing Date and signed by a duly authorized signatory of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgmentCompany, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) certifying that the conditions set forth in Section 10 of the Branch Purchase Agreement2.4(a)(i), other than the condition set forth in Section 10.3(e2.4(a)(ii), Section 2.4(a)(iii), Section 2.4(a)(iv), Section 2.4(a)(v), Section 2.4(a)(vi), Section 2.4(a)(vii), Section 2.4(a)(viii), Section 2.4(a)(ix) of the Branch Purchase Agreement (solely with respect to Tencent) and Section 2.4(a)(x) have been satisfied.
(vii) The Company shall have delivered to the Series B Investors a copy of legal opinions issued to the Series B Investors by the Company’s acceptance Cayman Islands and PRC legal counsels respectively, dated the Closing Date, relating to the Contemplated Transactions.
(viii) The Articles shall have been duly adopted by the Company and shall remain in full force and effect.
(ix) (solely with respect to Tencent) all parties to the Business Cooperation Agreement having duly executed the Business Cooperation Agreement.
(x) The Board and the shareholders of the proceeds of the Acceptable Financing (Company, as defined in the Branch Purchase Agreement)applicable, shall have been satisfied or waivedduly adopted resolutions approving the issuance of the Series Preferred Shares and/or the Series B Warrants in accordance with this Agreement.
Appears in 1 contract
Samples: Series B Preferred Share and Warrant Purchase Agreement (58.com Inc.)
Conditions. The obligations of the Initial Purchaser to purchase the Notes under this Agreement are subject to the performance by the Company of its covenants and obligations hereunder and the satisfaction of each of the following conditions:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that are qualified by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not havein this Agreement and in each of the Documents shall be true and correct, individually in and the aggregate, a Material Adverse Effect; the condition that representations and warranties of the Company shall have performed contained in all material respects all this Agreement and in each of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to the Documents that are not qualified by materiality or Material Adverse Effect contained therein); shall be true and the condition that since correct in all material respects, in each case, as of the date hereof no and at the Closing Date. On or prior to the Closing Date, the Company and each other party to the Documents (other than the Initial Purchaser) shall have performed or complied in all material respects with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to be so satisfied would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase AgreementEffect).
(b) The obligation No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company to consummate after due inquiry, be pending or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding shall be subject pending or, to the condition knowledge of the Company after due inquiry, threatened other than Proceedings that all would not, individually or in the aggregate, have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Time of Sale Document and the Final Offering Memorandum, there shall not have been any Material Adverse Change.
(e) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(f) The Initial Purchaser shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (1) the chief executive officer and (2) the chief financial officer of the Company, on behalf of the Company, to the effect that (a) the representations and warranties that are qualified by materiality or Material Adverse Effect set forth in Section 4 hereof and other statements in each of the Investor Documents and the Perfection Certificate are true and correct, and the representations and warranties set forth in Section 4 hereof and in each of the Documents and the Perfection Certificate that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects with the same force and effect, in each case, as though expressly made at and as of the Closing Date, (b) the Company has performed and complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date of this Agreement hereof, no event or events have occurred and no information has become known that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Time of Sale Document and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), other than as described in the Time of Sale Document and the Final Offering Memorandum or contemplated thereby, the Company has not incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations or prospects of the Company, and there has not been any change in the capital stock or long-term indebtedness of the Company that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company, and (e) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the secretary of the Company, certifying such matters as the Initial Purchaser may reasonably request.
(except those representations iii) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in the form previously approved by the Initial Purchaser or its counsel.
(iv) (i) the opinion, in the form of Exhibit A attached hereto, and warranties that (ii) an opinion relating to security interests in the form of Exhibit B attached hereto, each dated the Closing Date, of Xxxxx Day, counsel to the Company.
(v) Milling Xxxxxx Xxxxxxxx L.L.P., special Louisiana counsel to the Company, shall have furnished to the Initial Purchaser and the Collateral Agent, at the request of the Company, its written opinion, dated the Closing Date and addressed to the Initial Purchaser and the Collateral Agent, substantially in the form of Exhibit C attached hereto.
(vi) an opinion and 10b-5 letter, each dated the Closing Date, of White & Case LLP, counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(g) The Initial Purchaser shall have received a copy of an executed amendment to, or an executed amendment and restatement of, the Revolving Credit Facility, in form and substance reasonably satisfactory to the Initial Purchaser, and such amendment shall have become (or concurrently with the issuance of the Notes will become) effective.
(h) The Company shall have delivered fully executed counterparts of Mortgages in respect of real property owned in fee by their terms speak specifically the Company, each dated as of the date Closing Date, duly executed by the Company, together with evidence of this Agreement the completion (or some other date shall be true satisfactory arrangements for the completion), of all recordings and correct as filings of such date); and Mortgage as may be necessary to create a valid, perfected Lien, subject to Permitted Liens, against the condition that the Investor shall have performed all of its obligations hereunder theretofore properties to be performedcovered thereby.
(ci) The obligation of each Initial Purchaser shall have received the structuring fee set forth in Section 4(b) of the Investor Engagement Letter dated as of September 25, 2009 between the Initial Purchaser and the Company to consummate the Closing Company.
(j) The Initial Purchaser shall be subject have received from KPMG LLP, independent auditors with respect to the following additional conditions:
Company, (1A) no provision of any applicable law or regulation and no judgmenta customary comfort letter, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on dated the date of the Closing (after giving effect Final Offering Memorandum, in form and substance reasonably satisfactory to the purchase Initial Purchaser and its counsel, with respect to the financial statements and certain financial information contained in the Time of Sale Document and the Final Offering Memorandum, and (B) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser and its counsel, to the effect that KPMG LLP reaffirms the statements made in its letter furnished pursuant to clause (A) with respect to the financial statements and certain financial information contained in the Time of Sale Document and the Final Offering Memorandum.
(k) Each of the Investor Shares Documents shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of each Document (other than Mortgages in respect of leasehold interests in real property, deposit account control agreements and securities account control agreements).
(l) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any transaction contemplated herebyin the Documents delivered pursuant to Section 7(j) hereof.
(m) The terms of each Document delivered pursuant to Section 7(j) hereof shall conform in all material respects to the description thereof in the Time of Sale Document and the Final Offering Memorandum.
(n) The Collateral Agent shall have received (with a copy for the Initial Purchaser) on the Closing Date:
(i) appropriately completed copies of Uniform Commercial Code (“UCC”) financing statements naming the Company as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Security Agreement;
(ii) appropriately completed copies of Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any Security Agreement previously granted by any Person;
(iii) certified copies of UCC Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company (under its present name and any name of the Company used during the immediately preceding five year period ending on the Closing Date) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Document, other than such financing statements that evidence Permitted Liens and financing statements in respect of which UCC-3 termination statements have been delivered pursuant to the immediately preceding clause (ii)); and
(3iv) the conditions set forth in Section 10 Collateral Agent and its counsel shall be reasonably satisfied that (i) the Lien granted to the Collateral Agent, for the benefit of the Branch Purchase Agreement, Secured Parties in the collateral described above is of the priority described in the Time of Sale Document and the Final Offering Memorandum; and (ii) no Lien (other than any Lien being released contemporaneously with the issuance of the Notes) exists on any of the collateral described above other than the condition set forth Lien created in Section 10.3(e) favor of the Branch Purchase Agreement with respect Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Document, in each case subject to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedPermitted Liens.
Appears in 1 contract
Conditions. (a) The obligation This policy, any endorsement hereon and the schedule shall be read together as one contract and any word or expression to which a specific meaning has been attached in any part of this policy or of the Investor schedule shall bear such specific meaning wherever it may appear.
1. In the event of any incident, circumstance which may give rise to consummate a claim for indemnity under this policy, the Closing Insured shall give immediate notice in writing to the Insurer. Such notice having been given not later than 30 days after the expiration of the policy period, any claim to which that circumstance has given rise, which may be made within 36 months after the expiration of the period specified in the schedule, shall be deemed for the purpose of this policy to have been made during the existence hereof.
2. The Insured shall not admit liability or settle or make or promise any payment in respect of any claim which may be the subject to of indemnity hereunder, or incur any costs or expenses in connection therewith, without the condition that all representations and warranties and other statements written consent of the Company Insurer, which shall be true entitled to take over and correct as conduct in the name of the Insured the defence and/or settlement of any such claim, for which purpose the Insured shall give all the information and assistance that the Insurer may reasonably require. The Insurer will not settle any claim without the consent of the Insured. If, however, the Insured refuses to consent to any settlement recommended by the Insurer and shall elect to contest or continue any legal proceedings, then the liability of the Insurer shall not exceed the amount for which the claim could have been so settled, plus the costs and expenses incurred with their consent up to the date of such refusal.
3. Where a retroactive date is specified in the schedule, this Agreement insurance does not apply to claims made against the Insured by reason of any negligent act, error or omission which occurred or was committed, or is alleged to have occurred or committed prior to the said retroactive date.
4. The Insured shall at all times
a) maintain accurate descriptive records of all professional services which records shall be available for inspection and use by the Insurer or their duly appointed representatives insofar as they pertain to any claim hereunder,
b) give to the Insurer or their duly appointed representatives such information, assistance and signed statements as the Insurer may require, and
c) assist in the defence of any claim without charge to the Insurer;
5. In the event of any dispute arising between the Insured and the date Insurer, this insurance shall be governed by the law of the Closing (except those representations country specified in the schedule, whose courts only shall have jurisdiction in any dispute arising hereunder.
6. It is hereby agreed that if any payment is made under this insurance in respect of a claim, the Insurer is thereupon subrogated to all the Insured's rights of recovery in relation thereto.
7. If the Insured makes any claim knowing the same to be fraudulent or false, as regards amount or otherwise, this insurance shall become void and warranties that all claims there-under shall be forfeited.
8. This insurance shall not be called upon in contribution and shall only pay such loss if and so far as it is not recoverable under any other insurance.
9. The indemnity provided by their terms speak specifically as this policy is restricted to apply in respect of a) compensation resulting from judgement rendered by or obtained from a court of competent jurisdiction in the territory stated in the schedule b) charges, expenses and legal costs incurred and recoverable in the territory stated in the schedule.
10. In the absence of a local, legal regulation regarding cancellation, this insurance may be cancelled by the Insured at any time by giving written notice to the Insurer. This insurance may also be cancelled by or on behalf of the date of this Agreement Insurer by registered, certified or some other date first class mail, to the Insured's address as shown in the schedule containing written notice about when, not less than 30 days thereafter, the cancellation shall be true and correct as effective. The mailing of such date), except for such failures to notice as aforesaid shall be so true sufficient proof of notice and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company this insurance shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since terminate at the date hereof no Material Adverse Effect and hour specified in such notice.
11. If this insurance is cancelled by the Insured, the Insurer shall have occurred and refund the customary short rate proportion of the premium hereon. If this insurance is cancelled by, or on behalf of, the Insurer for any reason other than non-payment of the premium or any breach of contract by the Insured, the Insurer shall refund the pro rata proportion of the premium hereon.
12. Payment or tender of any unearned premium by the Insurer shall not be continuing with respect to either (x) a precondition for the Company or (y) validity of cancellation, but such payment shall be made as soon as practicable.
13. If the Company after giving effect period of limitation relating to the transactions contemplated giving of notice is prohibited or made void by any law controlling the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing construction thereof, such period shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power be amended so as to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect be equal to the purchase minimum period of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedlimitation permitted by such law.
Appears in 1 contract
Samples: Professional Indemnity Policy
Conditions. 5.1 The obligation of the Seller to effect the Completion is subject to the satisfaction (or waiver agreed to in writing by the Seller) at or prior to the Completion of each of the following conditions:
(a) The obligation Purchaser shall have obtained the approval from the Financial Services Commission (the “FSC”) with respect to its application filed under the Financial Holding Companies Act of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements Korea for inclusion of the Company as a subsidiary of the Purchaser due to the acquisition of the Shares (the “Purchaser Required Approval”);
(b) No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Applicable Law or Order prohibiting or making illegal the consummation of the transactions contemplated hereby (provided, that if any Governmental Authority enacts, issues, promulgates, enforces or enters any such Order, the Seller shall use its best endeavours to ensure such Order is vacated by pursuing all available legal challenges and appeals thereto);
(c) Each of the Purchaser’s Warranties shall be true and correct in all respects, in each case, as of the date of this Agreement and the date as of the Closing Completion Date as though made on and as of such date (except those representations and warranties that other than Purchaser’s Warranties which by their terms speak specifically address matters only as of another specified date, which shall be true and correct only as of such date), except where the failure of such Purchaser’s Warranties to be so true and correct has not, individually or in the aggregate, materially impaired or prevented the ability of the Purchaser to consummate the transactions contemplated by the Transaction Documents; and
(d) The Purchaser shall have, in all material respects, performed and complied with the agreements and covenants required hereunder to be performed or complied with by it at or prior to the Completion.
5.2 The obligation of the Purchaser to effect the Completion is subject to the satisfaction (or waiver agreed to in writing by the Purchaser) at or prior to the Completion of each of the following conditions:
(a) The Purchaser shall have obtained the Purchaser Required Approval;
(b) No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Applicable Law or Order prohibiting or making illegal the consummation of the transactions contemplated hereby (provided, that if any Governmental Authority enacts, issues, promulgates, enforces or enters any such Order, the Purchaser shall use its best endeavours to ensure such Order is vacated by pursuing all available legal challenges and appeals thereto);
(c) Each of the Seller’s Warranties shall be true and correct in all respects, in each case, as of the date of this Agreement or some and as of the Completion Date as though made on and as of such date (other date than Seller’s Warranties which by their terms address matters only as of another specified date, which shall be true and correct only as of such date), except for where the failure of such failures Seller’s Warranties to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would has not havehad, individually or in the aggregate, a Material Adverse Effect; the condition that the Company ;
(d) The Seller shall have performed have, in all material respects all of its obligations respects, performed and complied with the agreements and covenants required hereunder theretofore to be performed or complied with by it at or prior to the Completion; and
(without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect e) There shall not have occurred and be continuing with respect any Material Adverse Effect.
5.3 Each Party undertakes to either use its best endeavours to ensure that the conditions set forth in Clauses 5.1 and 5.2 (xcollectively, the “Conditions”) which it is in control of, or responsible for hereunder, are fulfilled as soon as reasonably practicable and, in any event, by the Company or (y) Long Stop Date. If it becomes apparent that the Company after giving effect FSC will not otherwise give the Purchaser Required Approval, the Purchaser shall promptly notify the Seller and shall promptly offer, accept and agree to all such conditions, obligations, undertakings and/or modifications as are required by the FSC to obtain the Purchaser Required Approval.
5.4 Without prejudice to the transactions contemplated by generality of Clause 5.3, the Branch Purchase Agreement.
Purchaser shall within 5 (bfive) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of Business Days after the date of this Agreement commence unofficial discussion with the FSC regarding its filing of a formal application for the Purchaser Required Approval, and shall file the date of the Closing (except those representations and warranties that by their terms speak specifically application as of soon as possible after the date of this Agreement but in no event later than 15 (fifteen) Business Days after the date of this Agreement, subject to the FSC’s confirmation for the submission of the formal application.
5.5 Without prejudice to Clauses 5.3 and 5.4, the Purchaser shall ensure that any notifications and/or filings made by it in connection with the Purchaser Required Approval are made as soon as reasonably practicable and with all due care and that such notifications and/or filings are accurate and complete, in all material respects, with regard to all requirements specified by the relevant Governmental Authority. In furtherance of the foregoing, the Seller shall:
(a) render to the Purchaser such assistance as may reasonably be requested by the Purchaser in respect of the Purchaser’s obligations to obtain the Purchaser Required Approval; and
(b) as soon as reasonably practicable following a request from the Purchaser, provide the Purchaser with all information reasonably necessary to make any notification or some other date filing in connection with the Purchaser Required Approval or as requested by any Governmental Authority, provided that neither the Seller nor any member of the Seller’s Group shall be true required under this Clause 5.5 to provide the Purchaser or any member of the Purchaser’s Group with documents or information which contain commercially sensitive or confidential information which the Seller considers (acting in good faith and correct as on a reasonable basis) the disclosure of which would be in violation of any Applicable Law.
5.6 Each Party shall keep the other Party promptly informed of, and shall consult with the other Party regarding, the progress of satisfying the Conditions which it is in control of, or responsible for hereunder. Each Party shall immediately inform the other Party of all developments which would or might reasonably be expected to result in such date); Party becoming unable to comply with, or satisfy in any respect, any Condition, which it is in control of, or responsible for hereunder. Without any prejudice to the generality of the foregoing, the Purchaser shall, to the extent permitted by Applicable Law and the condition that requirements of Governmental Authorities:
(a) consult with the Investor shall have performed all Seller or its nominated professional advisers prior to communicating with the FSC (including by email, telephone and text) in any material respect in connection with the Purchaser Required Approval;
(b) give the Seller prior written notice of, and (if the Seller so reasonably requests) procure permission for the attendance of its obligations hereunder theretofore to be performed.Authorised Representatives of the Seller at, substantive meetings and teleconferences with applicable Governmental Authorities in connection with the Purchaser Required Approval;
(c) The obligation provide the Seller with draft copies of each of the Investor and the Company all material written submissions to consummate the Closing shall be subject any Governmental Authority in relation to the following additional conditions:
Purchaser Required Approval (1other than any such submission or any part thereof that the Purchaser considers (acting in good faith and on a reasonable basis) no provision of to be competitively sensitive or required to be kept confidential under contractual obligations or Applicable Law) at such time as will permit the Seller a reasonable opportunity to provide comments on such material submissions before they are submitted or sent or made and, in completing such material submissions or communications, and to the extent reasonably practicable, have due regard to any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase reasonable comments made by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Seller; and
(3d) promptly provide the conditions set forth Seller upon receipt with copies of all correspondence received from the relevant Governmental Authorities in Section 10 of any material respect in connection with the Branch Purchase Agreement, Purchaser Required Approval (other than any such correspondence or any part thereof that the condition set forth Purchaser considers (acting in Section 10.3(egood faith and on a reasonable basis) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreementbe competitively sensitive or required to be kept confidential under contractual obligations or Applicable Law), shall have been satisfied or waived.
Appears in 1 contract
Samples: Share Purchase Agreement (Prudential Financial Inc)
Conditions. (a) The obligation This policy any endorsement hereon and the schedule shall be read together as one contract and any word or expression to which a specific meaning has been attached in any part of this policy or of the Investor schedule shall bear such specific meaning wherever it may appear.
1. The Insured shall take all reasonable precautions to consummate prevent or minimize injury, illness, loss or damage which may give rise to a claim under this policy.
2. In the Closing event of any incident or circumstance which may give rise to a claim for indemnity under this policy, the Insured shall give immediate notice in writing to the Insurer. Such notice having been given not later than 30 days after expiry of the policy period, any claim to which that incident or circumstance has given rise, which may be made within 36 months after the expiry of the period specified in the schedule, shall be deemed for the purpose of this policy to have been made during the existence hereof.
3. The Insured shall not admit liability or settle or make or promise any payment in respect of any claim which may be the subject to of indemnity hereunder, or incur any costs or expenses in connection therewith, without the condition that all representations and warranties and other statements written consent of the Company Insurer which shall be true entitled to take over and correct as conduct in the name of the Insured the defence and/or settlement of any such claim, for which purpose the Insured shall give all the information and assistance that the Insurer may reasonably require. The Insurer will not settle any claim without the consent of the Insured. If, however, the Insured refuses to consent to any settlement recommended by the Insurer and shall elect to contest or continue any legal proceedings, then the liability of the Insurer shall not exceed the amount for which the claim could have been so settled plus the costs and expenses incurred with its consent up to the date of such refusal.
4. The Insurer may pay to the Insured the maximum sum payable under this Agreement policy in respect of any occurrence or any lesser sum for which the claim or claims arising from such occurrence can be settled and the date Insurer shall not be under any further liability in respect of that occurrence except for the payment of costs and expenses of litigation incurred prior to such payment.
5. If at the time of any occurrence or claim there is or but for the existence of this policy would be any other policy of indemnity or insurance in favour of or effected by or on behalf of the Closing (Insured applicable to such occurrence or claim the Insurer shall not be liable under this policy to indemnify the Insured in respect of such occurrence or claim except those representations as far as concerns any excess beyond the amount which would be payable under such other indemnity or insurance had this policy not been effected.
6. Where a retroactive date is specified in the schedule, this insurance does not apply to claims made against the Insured by reason of any negligent act, error or omission committed, occurred or alleged to have been committed or occurence prior to the said retroactive date.
7. The Insured shall at all times
a) maintain accurate descriptive records of all professional services which shall be available for inspection and warranties that use by their terms speak specifically the Insurer or its duly appointed representatives insofar as they pertain to any claim hereunder,
b) give to the Insurer or its duly appointed representatives such information, assistance and signed statements as the Insurer may require, and
c) assist in the defence of any claim at its own expense;
8. The due observance and fulfilment of the date terms, provisions and conditions so far as they relate to anything to be done or complied with by the Insured and the truth of the statements in the proposal made by him (which shall be the basis of this Agreement or some other date contract and held to be incorporated herein) shall be true conditions precedent to any liability of the Insurer.
9. In the event of any dispute arising between the Insured and correct the Insurer this insurance shall be governed by the law of the country specified in the schedule whose courts shall be the only ones having jurisdiction in any dispute arising hereunder.
10. It is hereby agreed that if any payment is made under this insurance in respect of a claim, the Insurer is thereupon subrogated to all the Insured's rights of recovery on relation thereto.
11. If the Insured makes any claim knowing the same to be fraudulent or false, as regards the amount or otherwise, this insurance shall become void and all claims thereunder shall be forfeited.
12. This insurance shall not apply in connection with any insurance and shall only pay losses if and so far as they are not recoverable under any other insurance.
13. The indemnity provided by this policy is restricted to apply in respect of a) compensation resulting from judgement rendered by or obtained from a court of competent jurisdiction in the territory stated in the schedule b) charges, expenses and legal costs incurred and recoverable in the territory stated in the schedule.
14. In the absence of a local legal regulations regarding the cancellation this insurance may be cancelled by the Insured at any time by written notice to the Insurer. This insurance may also be cancelled by or on behalf of the Insurer by registered, certified or other first class mail to the Insured's address as shown in the schedule, containing written notice about when, not less than 30 days thereafter, the cancellation shall be effective. The mailing of such date), except for such failures to notice as aforesaid shall be so true sufficient proof of notice and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company this insurance shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since terminate at the date hereof no Material Adverse Effect and hour specified in such notice.
15. If this insurance is cancelled by the Insured, the Insurer shall have occurred and refund the customary short rate proportion of the premium hereon. If this insurance is cancelled by, or on behalf of, the Insurer for any reason other than non-payment of the premium or any breach of contract by the Insured, the Insurer shall refund the pro rata proportion of the premium hereon.
16. Payment or tender of any unearned premium by the Insurer shall not be continuing with respect to either (x) the Company or (y) the Company after giving effect a condition precedent to the transactions contemplated by the Branch Purchase Agreementeffectiveness of cancellation but such payment shall be made as soon as practicable.
(b) The obligation 17. If the period of the Company to consummate the Closing shall be subject limitation relating to the condition that all representations and warranties and other statements giving of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that notice is prohibited or made void by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgmentstatutory provision, injunction, order or decree such period shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power be amended so as to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect be equal to the purchase minimum period of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied notice permitted by such law or waivedstatutory provision.
Appears in 1 contract
Conditions. The obligations of the Agent, as agent of the Company, at any time (a"Solicitation Time") The to solicit offers to purchase the Securities, the obligation of the Investor Agent to consummate purchase Securities as principal pursuant to any Terms Agreement or otherwise, and the Closing obligation of any other purchaser to purchase Securities shall in each case be subject (1) to the condition that all representations and warranties and other statements of the Company shall be true herein and correct as all statements of officer's of the date of this Agreement and Company made in any certificate furnished pursuant to the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so provisions hereof are true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained thereini) as would not have, individually in the aggregatecase of the Agent's obligation to solicit offers to purchase Securities, a Material Adverse Effectat and as of such Solicitation Time and (ii) in the case of the Agent's or any other purchaser's obligation to purchase Securities, at and as of the time the Company accepts the offer to purchase such Securities and, as the case may be, at and as of the related Time of Delivery or time of purchase; (2) to the condition that at or prior to such Solicitation Time, time of acceptance, Time of Delivery or time of purchase, as the case may be, the Company shall have performed in complied with all material respects its agreements and all of conditions on its obligations hereunder theretofore part to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein)satisfied hereunder; and (3) to the following additional conditions when and as specified:
(a) Prior to such Solicitation Time or corresponding Time of Delivery or time of purchase, as the case may be no stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission and there shall have been no material adverse change (not in the ordinary course of business) in the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) of the Company or (y) and its subsidiaries, taken as a whole, from that set forth in the Company after giving effect to Registration Statement and the transactions contemplated by the Branch Purchase AgreementProspectus.
(b) The obligation On the Commencement Date, and in the case of a purchase of Securities by the Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, Margaret M. Foran, Vice President, Assistant General Cxxxxxx xxx Xxxxxxant Secretary of the Company to consummate the Closing Company, shall be subject have furnished to the condition that all representations Agent her written opinion, dated the Commencement Date or Time of Delivery, as the case may be, in form and warranties and other statements of substance satisfactory to the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedAgent.
(c) The obligation On the Commencement Date, and in the case of each a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, Cravath, Swaine and Moore, counsel to the Agent, shall have furnished to txx Xxent such opinion or opinions, dated the Commencement Date or Time of Delivery, as the case may be, with respect to the validity of the Investor Indenture, the Securities, the Registration Statement, the Prospectus as amended or supplemented and other related matters as the Company Agent may reasonably request, and in each case such counsel shall have received such papers and information as they may reasonably request to consummate the Closing shall be subject enable them to the following additional conditions:pass upon such matters.
(1d) no provision On the Commencement Date, and in the case of any applicable law a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or regulation and no judgmentotherwise, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase if called for by the Investor applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, the Investor Shares shall not (i) require Company's independent certified public accountants who have certified the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities financial statements of the Company would be aggregated with and its subsidiaries included or incorporated by reference in the Investor’s securities Registration Statement and Prospectus, as then amended or supplemented, shall have furnished to the Agent a letter, dated the Commencement Date or Time of Delivery, as the case may be, in form and substance satisfactory to the Agent, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information relating to the Company contained in or incorporated by reference in the Registration Statement and the Prospectus, as then amended or supplemented.
(e) On the Commencement Date, and in the case of a purchase of Securities by the Agent as principal pursuant to a Terms Agreement or otherwise, if called for purposes by the applicable Terms Agreement or other agreement, at the corresponding Time of any bank regulation Delivery, the Agent shall have received a certificate or lawcertificates signed by an officer of the Company, dated the Commencement Date or Time of Delivery, as the case may be, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 6(a)above.
(f) On the Commencement Date and at each Time of Delivery, the Company shall have furnished to the Agent such further certificates, information and documents as the Agent may reasonably request.
(g) There shall not have occurred any material outbreak or escalation of hostilities or other national or international calamity or crisis of such magnitude and severity in its effect on the financial markets of the Branch Purchase AgreementUntied States as, other than in the condition set forth in Section 10.3(e) reasonable judgment of the Branch Purchase Agreement with respect Agent, to prevent or materially to impair the Company’s acceptance marketing, or enforcement of contracts for sale, of the proceeds of Securities.
(h) Trading in securities generally on the Acceptable Financing New York Stock Exchange shall not have been suspended or materially limited.
(as defined i) A general moratorium on commercial banking activities in the Branch Purchase Agreement), State of New York shall not have been satisfied declared by either Federal or waivedNew York State authorities.
Appears in 1 contract
Conditions. The obligations of the Initial Purchasers to purchase the Notes under this Agreement are subject to the satisfaction or waiver of each of the following conditions:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company contained in this Agreement and in each of the Documents shall be true and correct as of the date of this Agreement hereof and the date of at the Closing (except those representations and warranties that by their terms speak specifically as of Date. On or prior to the date of this Agreement or some other date shall be true and correct as of such date)Closing Date, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company and each other party to the Documents (other than the Initial Purchasers) shall have performed in all material respects or complied with all of its obligations hereunder theretofore the agreements and satisfied all conditions on their respective parts to be performed (without giving effect to any qualification as to materiality performed, complied with or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect satisfied pursuant to the transactions contemplated by the Branch Purchase AgreementDocuments.
(b) The obligation No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the Transactions; and no stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company to consummate the Closing shall after reasonable inquiry, be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct pending or contemplated as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) The obligation of each No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Investor and Closing Date, prevent the consummation of the Offering or any of the Transactions. No Proceeding shall be pending or, to the knowledge of the Company after reasonable inquiry, threatened other than Proceedings that (A) if adversely determined could not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) could not reasonably be expected, individually or in the aggregate, to consummate have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), there shall not have been any Material Adverse Change.
(e) The Notes shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL market.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any adverse change, nor shall any notice have been given of any potential or intended adverse change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(g) The Initial Purchasers shall have received on the Closing shall be subject to the following additional conditionsDate:
(i) certificates dated the Closing Date, signed by a (1) no provision of Chairman, Chief Executive Officer, President or any applicable law or regulation Vice President and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor principal financial or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities accounting officer of the Company would be aggregated on behalf of the Company, to the effect that (a) the representations and warranties set forth in Section 4 hereof are true and correct with the Investor’s securities same force and effect as though expressly made at and as of the Company for purposes of any bank regulation or lawClosing Date, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other personsb) would represent more than 9.9% of any class of voting securities of the Company outstanding has obtained the MARAD Consent prior to the Closing Date, (c) the Company has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, (d) at the Closing Date, since the date hereof or since the date of the Closing most recent financial statements in the Offering Circular (exclusive of any amendment or supplement thereto after giving effect the date hereof) no event or events have occurred, no information has become known to the purchase Company nor does any condition exist that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (e) since the date of the Investor Shares contemplated herebymost recent financial statements in the Offering Circular (exclusive of any amendment or supplement thereto after the date hereof); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than as described in the condition set forth Offering Circular or contemplated hereby, the Company has not incurred any liabilities or obligations, direct or contingent, not in Section 10.3(e) the ordinary course of business, entered into any transactions not in the ordinary course of business that could reasonably be expected to have a Material Adverse Effect, and there has not been any change in the capital stock or long-term indebtedness of the Branch Purchase Agreement Company that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company, and (f) the sale of the Notes has not been enjoined (temporarily or permanently) by a Government Authority with applicable jurisdiction;
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company, certifying such matters as the Initial Purchasers may reasonably request;
(iii) the opinions dated the Closing Date of Xxxxxxx X. Xxxxxxx, Xx., General Counsel of the Company, with respect to matters listed on Exhibit C attached hereto, Xxxxx & Lardner LLP, counsel to the Company, with respect to the matters listed on Exhibit D attached hereto, Xxxxxxx Xxxxxx Xxxx Xxxxxxx & Manner, P.C., counsel to the Company, with respect to the matters listed on Exhibit E attached hereto, XxXxxxxxx Xxxxxx, counsel to the Company, with respect to the matters listed on Exhibit F attached hereto, and Xxxxxxxxx, Poster & Xxxxxx, LLP, counsel to the Company, with respect to certain matters listed on Exhibit G attached hereto and such other opinions as the Initial Purchasers may reasonably request;
(iv) an opinion, dated the Closing Date, of Xxxxxx & Xxxxxx L.L.P., counsel to the Initial Purchasers, in form satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(h) The Initial Purchasers shall have received from BDO Xxxxxxx, LLP, independent auditors, with respect to the Company’s acceptance , (A) a customary comfort letter, dated the date of the proceeds Final Offering Circular, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to the financial statements and certain financial information contained in the Final Offering Circular, and (B) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect that BDO Xxxxxxx, LLP reaffirms the statements made in its letter furnished pursuant to clause (A).
(i) The Initial Purchasers shall have received from Deloitte & Touche LLP, independent auditors, with respect to the Company, (A) a customary comfort letter, dated the date of the Acceptable Financing Final Offering Circular, in form and substance reasonably satisfactory to the Initial Purchasers, and (B) a customary comfort letter dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(j) Each of the Documents shall have been executed and delivered by all parties thereto, as applicable, and the Initial Purchasers shall have received a fully executed original of each such Document.
(k) The Initial Purchasers shall have received copies in form and substance reasonably satisfactory to them of all opinions, certificates, letters and other documents delivered or required to be delivered under or in connection with the Offering or any transaction contemplated in the Documents.
(l) The terms of each Document shall conform in all material respects to the description thereof in the Offering Circular.
(m) The Initial Purchasers shall have received a certificate of the Company’s Chairman of the Board, Chief Executive Officer, Chief Financial Officer or Controller (i) attaching with respect to each Vessel (as set forth Exhibit B hereto), in each case dated as of a recent date, (A) a classification society certificate from the American Bureau of Shipping (or other reputable classification societies) indicating that the Vessels are classed in the highest classification and rating for vessels of the same age and type with such classification society without any outstanding conditions or recommendations affecting class other than those for which the time prescribed for curing the condition has not passed; and (B) a certificate of ownership evidencing the ownership of such Vessel by the Company, and (ii) certifying that, as of the Closing Date, (A) to the best of his knowledge, each such Vessel maintains the classification stated in the relevant classification society certificate, (B) except in the case of Vessels leased by the Company or a Subsidiary, each Vessel remains owned by the Company stated to be the owner of such Vessel in the relevant certificate of ownership; (C) that each Vessel is operationally seaworthy and in every way fit for its intended service; (D) that all necessary governmental or regulatory approvals, licenses and authorities which are necessary to the operation of each Vessel have been obtained from each applicable governmental authority; and (E) that each Vessel is insured in accordance with the provisions of the Fleet Mortgage and that requirements thereof in respect of such insurances have been complied with;
(n) The Trustee shall have received (with a copy for the Initial Purchasers):
(i) appropriately completed copies, which have been duly authorized for filing by the appropriate entity, of UCC Financing Statements naming the Company as a debtor and the Trustee as the secured party, or other similar instruments or documents to be filed under the Uniform Commercial Code in all jurisdictions as may be necessary or, in the reasonable opinion of any of the Trustee, or the Initial Purchasers and their respective counsel, desirable to perfect the Liens of the Trustee pursuant to the Security Documents;
(ii) terminations of filings under the Uniform Commercial Code necessary to release all Liens (other than Permitted Collateral Liens) of any person in any collateral described in the Security Documents previously granted by any person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Trustee, dated a date reasonably near to the Time of Delivery, listing all effective Financing Statements which name either of the Companies (under its present name and any previous names) as the debtor, together with copies of such Financing Statements (none of which shall cover any collateral described in the Security Documents, other than such Financing Statements that evidence Permitted Collateral Liens);
(iv) such releases, reconveyances, satisfactions or other instruments as it may request to confirm the release, satisfaction and discharge in full of all mortgages, deeds of trust, security agreements, and other documents creating or evidencing Liens at any time delivered by either of the Companies to secure any Obligations in respect of either of the Companies’ existing indebtedness that is secured by assets constituting Collateral, duly executed, delivered and acknowledged in recordable form by the grantee named therein or its of record successors or assigns;
(v) documents from each of the lenders under either of the Companies’ existing indebtedness that is secured by assets constituting Collateral indicating the total amount of indebtedness payable to such lender and providing that such lender shall, upon payment to such lender of the full amount of the indebtedness payable to it, immediately release all Liens held by it and provide all related documentation necessary to evidence such release in form and substance satisfactory to the Trustee and its counsel;
(vi) confirmation reasonably satisfactory to the Initial Purchasers that the Fleet Mortgage has been accepted for recording by the National Vessel Documentation Center and that such office will issue a certificate of ownership or abstract of title evidencing that the Company Vessels subject to the Fleet Mortgage have been documented in the name of the Company and are subject to such Fleet Mortgage and to no other liens of record;
(vii) appraisals conducted in accordance with customary industry standards and practice with respect to each Vessel dated no earlier than December 18, 2003, satisfactory in form and scope to the Trustee and the Initial Purchaser;
(viii) all certificates or instruments representing or evidencing the Collateral (as such term is defined in the Branch Purchase Security Agreement)) in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to the Indenture;
(ix) a certificate of the Company’s insurance brokers in form and substances reasonably satisfactory to the Initial Purchasers confirming that all insurance requirements of the Security Documents are satisfied;
(x) with respect to Collateral that is titled vehicles or titled equipment, executed copies of all documents necessary to record on such titles a first priority Lien in favor of the Trustee;
(xi) duly executed and acknowledged real property mortgages in form and substance satisfactory to the Trustee covering the Collateral that is real property and fixtures, together with title policies and such other documents related thereto as the Trustee may reasonably require; and
(xii) such other documents, approvals, affidavits, opinions or certificates as the Trustee or the Initial Purchasers may reasonably request in form and substance reasonably satisfactory to the Trustee or the Initial Purchaser, as the case may be.
(o) All UCC Financing Statements and financing statement terminations, required pursuant to clauses (i) and (iii) of paragraph (n) above (collectively, the “Financing Statements”) shall have been satisfied delivered to CT Corporation System or waivedanother similar filing service company acceptable to the Trustee (the “Filing Agent”). The Filing Agent shall have acknowledged in a writing reasonably satisfactory to the Trustee and its counsel (i) the Filing Agent’s receipt of all Financing Statements, (ii) that the Financing Statements have either been submitted for filing in the appropriate filing offices or will be submitted for filing in the appropriate offices within ten days following the Closing and (iii) that the Filing Agent will notify the Trustee and its counsel of the results of such submissions within 30 days following the Closing.
(p) The Company shall have consummated the Acquisition, the Merger and the Container Purchase.
(q) The Company shall have obtained the MARAD Consent.
Appears in 1 contract
Conditions. 11.1 This Agreement and the respective rights and obligations of the parties to this Agreement are conditional upon:
(a) The obligation of the Investor to consummate on the Closing shall be subject to Date:
(i) the condition that all representations and warranties of the Issuer and other the Guarantors in this Agreement being true, accurate and correct at, and as if made on, the Closing Date; and
(ii) the statements of the Company shall be true and correct as authorised representatives of the date Issuer made in any certificates pursuant to the provisions of this Agreement being true, accurate and correct at, and as if made on, the date Closing Date;
(b) there having been, as at the Closing Date, no material adverse change or development involving a prospective material adverse change in the condition (financial or otherwise), business, properties, shareholders' equity or results of operations of any of the Closing (except those representations and warranties that by their terms speak specifically Issuer, any of its Subsidiaries or the Guarantors, as of the case may be, since the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually from that set out in the aggregate, a Material Adverse Effect; Supplied Information and no event making any of the condition that representations and warranties contained in clause 10 untrue or incorrect on the Company shall have Closing Date as though they had been given and made on such date and the Issuer having performed in all material respects all of its the obligations hereunder theretofore to be performed by it under this Agreement on or before the Closing Date;
(without giving c) there having been and shall exist, as at the Closing Date, no action, suit, investigation, litigation or proceeding pending or threatened that could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), business, properties, shareholders' equity or results of operations of the Issuer, any of its Subsidiaries or the Guarantors, as the case may be;
(d) the delivery to the Subscriber on or before the Closing Date of:
(i) legal opinions dated the Closing Date in such form and with such contents as the Subscriber may require from Xxxxxxx (Hong Kong), legal advisers to the Issuer as to laws of Bermuda and the British Virgin Islands, and from DLA Piper Hong Kong, legal advisers to the Subscriber as to Hong Kong law;
(ii) a certificate signed by a duly authorised officer of the Issuer to the effect stated in subclause 11.1(b), the form of the certificate is set out in Schedule 4;
(iii) a certified copy of (A) the certificate of incorporation and the constitutional documents of the Issuer; and (B) the resolutions of the board of directors of the Issuer and (if required) the shareholders of the Issuer authorising the issue of the Notes and the execution and delivery of the Transaction Documents and other documents relevant to the issue of the Notes and the transactions contemplated thereunder; and
(iv) any other documents (including, but not limited to, any resolutions, consents and authorities) relating to the issue of the Notes which the Subscriber may reasonably require;
(e) the Issuer having obtained any and all governmental, regulatory and third party consents and approvals (including but not limited to any qualification as to materiality shareholders’ approval) necessary or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to appropriate for consummation of the transactions contemplated by this Agreement, the Branch Purchase Agreement.Transaction Documents and the issue of the Notes;
(bf) The obligation the Subscriber having been satisfied with the results of its financial, business, assets, legal and other due diligence investigations on the Issuer and its Subsidiaries and each of the Company to consummate Guarantors;
(g) the Closing shall be subject to the condition that all representations and warranties and other statements execution of the Investor shall be true Transaction Documents;
(h) the Guarantors, where applicable, having obtain any and correct as all governmental, regulatory and third party consents and approvals necessary or appropriate for consummation of the date of transactions contemplated by this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor SharesGuarantees;
(2i) no Event of Default shall be continuing and no Potential Event of Default has occurred;
(j) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActIssuer having paid, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect arrangements satisfactory to the purchase of Subscriber shall have been made for the Investor Shares contemplated hereby)payment of, all fees and expenses as set out clause 8 herein; and
(3k) all obligations required to be performed by the Issuer, and as the case may be, the Guarantors as of the Closing Date have been performed.
11.2 In the event that any of the conditions set forth out in Section 10 clause 11.1 is not satisfied on or before the Closing Date, this Agreement will (subject as mentioned below) terminate and the parties hereto will (except for the liability of the Branch Purchase Issuer in relation to expenses as provided under, or under any arrangements referred to in, clause 8 and except for any liability arising before or in relation to such termination) be under no further liability arising out of this Agreement, other than provided that the condition set forth Subscriber may in Section 10.3(e) its discretion and by notice to the Issuer waive satisfaction of any of the Branch Purchase Agreement with respect to the Company’s acceptance above conditions or of the proceeds any part of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedthem.
Appears in 1 contract
Conditions. (a) 7.1 Conditions to Each Party's Obligations to Effect the Merger. The obligation respective obligations of the Investor Company, Purchaser and Merger Sub to consummate the Closing Merger shall be subject to the condition fulfillment at or prior to the Effective Time, of the following conditions (any of which may be waived, to the extent permitted by law, in writing, in whole or in part, by Company or Purchaser):
(a) This Agreement and the Merger contemplated hereby shall have been approved and adopted by the requisite affirmative vote of Stockholders of Company in accordance with the DGCL and Company's Certificate of Incorporation;
(b) No judgment, order, decree, statute, law, ordinance, rule or regulation, entered, enacted, promulgated, enforced or issued by any court or other Governmental Entity of competent jurisdiction or other legal restraint or prohibition (collectively, "Restraints") will be in effect (i) preventing the consummation of the Merger; or (ii) that all otherwise is reasonably likely to have a Material Adverse Effect following consummation of the Merger; provided, however, that each of Company and Purchaser will have used commercially reasonable efforts to prevent the entry of any such Restraints and to appeal as promptly as possible any such Restraints that may be entered.
7.2 Conditions to the Obligations of Purchaser and Merger Sub. The obligations of Purchaser to consummate the Merger are subject to the satisfaction or waiver by Purchaser or Merger Sub (where permissible) of the following additional conditions:
(a) Each of the representations and warranties and other statements of the Company contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement Effective Time, as though made at and the date as of the Closing (Effective Time, except that those representations and warranties that by their terms speak specifically address matters only as of the date of this Agreement or some other a particular date shall be remain true and correct as of such date), except for such failures and Purchaser shall have received a certificate of the Chief Executive Officer or Chief Financial Officer of Company to that effect. With respect to representations and warranties that cease to be so true and correct (without giving effect due to any qualification actions taken by Company as permitted by Section 6.1 or otherwise consented to materiality or Material Adverse Effect contained therein) as would not haveby Purchaser, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore be entitled to be performed (without giving effect attach to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementsuch officer's certificate updated Schedules reflecting such changes.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed or complied in all of its obligations hereunder theretofore material respects with all agreements and covenants required by this Agreement to be performedperformed or complied with by them on or prior to the Effective Time, and Purchaser shall have received a certificate of the Chief Executive Officer or Chief Financial Officer of Company to that effect.
(c) The obligation Since December 31, 2003 there shall not have been any event which constitutes a Material Adverse Effect.
(d) Purchaser shall have received a written opinion of Xxxxxx Godward LLP, counsel for Company, dated as of the Closing Date addressed to Purchaser in the form attached as Exhibit A-1
(e) Purchaser shall have received a written opinion of Xxxx Xxxxx LLP, counsel for Company, dated as of the Closing Date addressed to Purchaser in the form attached as Exhibit A-2.
(f) Purchaser shall have received employment agreements, in the forms of Exhibits X-0, X-0 and B-3 attached, executed by each Xxxxx XxXxxxxx, Xxxxxx Xxxxxxxxx and Xxxxxxxx Xxxxxx, as of the date hereof, which agreements shall become effective at the Effective Time.
(g) Purchaser shall have received general releases, the form of Exhibit C attached, executed by each officer or director of Company and Company Subsidiaries.
(h) Purchaser shall have received non-competition agreements, in the form of Xxxxxxxx X-0, X-0, X-0 and D-4 attached, executed by each of the Investor Principal Stockholders and the Company to consummate the Closing shall be subject to the following additional conditions:Xxxxxx Xxxxxxxxx.
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any The holders of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; not more than five percent (ii5%) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Common Stock shall have been satisfied or waivedexercised appraisal rights under the DGCL.
Appears in 1 contract
Samples: Merger Agreement (Inforte Corp)
Conditions. (a) The obligation This policy , any endorsement hereon and the schedule shall be read together as one contract and any word or expression to which a specific meaning has been attached in any part of this policy or of the Investor schedule shall bear such specific meaning wherever it may appear.
1. In the event of any incident, circumstance which may give rise to consummate a claim for indemnity under this policy, the Closing insured shall give immediate notice in writing to the Insurer. such notice having been given not later than 30 days after the expiration of the policy period , any claim to which that circumstance has given rise , which may be made within 36 months after the expiration of the period specified in the schedule , shall be deemed for the purpose of this policy to have been made during the existence hereof. .ًندملا نوناقلا نم 926 هداملا نوناق بسحو هل
2. The Insured shall not admit liability or settle or make or promise any payment in respect of any claim which may be the subject to of indemnity hereunder , or incur any costs or expenses in connection therewith , without the condition that all representations and warranties and other statements written consent of the Company Insurer , which be entitled to take over and conduct in the name of the insured the defense and / or settlement of any such claim, any such claim , for which purpose the Insured shall be true give all the information and correct as assistance that the Insurer may reasonably require . The Insurers will not settle any claim without the consent of the Insured. if , however, the Insured refuses to consent to any settlement recommended by the Insurer and shall elect to contest or continue any legal proceedings , then the liability of the Insurer shall not exceed the amount for which the claim could have been so settled , plus the costs and expenses incurred with their consent up to the date of such refusal.
3. Where a retroactive date is specified in the schedule , this Agreement insurance does not apply to claims made against the Insured by reason of any negligent act , error or omission which occurred or was committed , or is alleged to have occurred or committed prior to the said retroactive date .
4. The Insured shall at all times
a) maintain accurate descriptive records of all professional services which records shall be available for inspection and use by the Insurer or their duly appointed representatives insofar as they pertain to any claim hereunder.
b) give to the Insurer or their duly appointed representatives such information , assistance and signed statements as the Insurer may require , and
c) assist in the defense of any claim without charge to the Insurer.
5. In the event of any dispute arising between the Insured and the date Insurer, this insurance shall be governed by the law of the Closing (except those representations country specified in the schedule, whose courts only shall have jurisdiction in any dispute arising hereunder.
6. It is hereby agreed that if any payment is made under this insurance in respect of a claim, the insurer is thereupon subrogated to all the Insured’s rights of recovery in relation thereto.
7. If the Insured makes any claim knowing the same to be fraudulent or false , as regards amount or otherwise , this insurance shall become void and warranties that all claims there under shall be forfeited.
8. If any claim covered by their terms speak specifically as this policy is also covered in whole or in part by other insurance, the liability of the date of this Agreement or some other date company shall be true and correct as limited to their ratable proportion of such date), except for such failures claim.
9. The indemnity provided by this policy is restricted to be so true and correct (without giving effect to any qualification as to materiality apply in respect of
a) compensation resulting from judgment rendered by or Material Adverse Effect contained therein) as would not have, individually obtained from a court of competent jurisdiction in the aggregateterritory stated in the schedule
b) Charges, expenses and legal costs incurred and recoverable in the territory stated in the schedule.
10. In the absence of a Material Adverse Effect; local , legal regulation regarding cancellation , this insurance may be cancelled by the condition that Insured at any time by giving written notice to the Company Insurer . this insurance may also be cancelled by or on behalf of the Insurer by registered , certified or other first class mail , to the Insured’s address as shown in the schedule containing written notice about when , not less than 30 days thereafter , the cancellation shall have performed in all material respects all be effective . The mailing of its obligations hereunder theretofore to such notice as aforesaid shall be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); sufficient proof of notice and the condition that since this insurance shall terminate at the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated hour specified in such notice.
11. If this insurance is cancelled by the Branch Purchase Agreement.
(b) The obligation Insured, the Insurer shall refund the customary short rate proportion of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedpremium hereon.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 1 contract
Samples: Professional Indemnity Policy
Conditions. (a) The obligation of the Investor Buyer to consummate the Acquisition on the Closing shall be Date is subject to the condition that satisfaction of the following conditions (any or all of which may be waived by Buyer, in its sole discretion, in whole or in part, to the extent permitted by applicable law):
(i) each of the representations and warranties and other statements of the Company Seller contained herein shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as though the same had been made on and as of the Closing Date;
(ii) Seller shall have performed and complied, in all material respects, with the covenants and provisions of this Agreement required to be performed or complied with by it between the date hereof and the Closing Date;
(iii) since the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement Agreement, no event or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect circumstance shall have occurred and be continuing that has had, or is reasonably likely to have, a material adverse effect on the business, assets, properties, liabilities, financial condition or results of operations of Seller;
(iv) (A) no Legal Proceeding shall have been instituted or threatened or claim or demand made against Seller or Buyer seeking to restrain or prohibit or to obtain damages with respect to either (x) the Company or (y) the Company after giving effect to consummation of the transactions contemplated by this Agreement, or which might, in the Branch Purchase Agreement.
reasonable opinion of Buyer, result in a material adverse change in the business, assets, properties, liabilities, financial condition or results of operations of Seller and (bB) The obligation there shall not be in effect any Order of a Government Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements consummation of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharesby this Agreement;
(2v) Buyer and Seller shall have received all third-party consents and approvals required with respect to the purchase by assumption by, and the Investor assignment to, Buyer of the Investor Shares Lease;
(vi) Buyer shall not (i) require have obtained or discovered, in the Investor or any course of its affiliates due diligence review referred to file a prior notice under in Section 5.1 above, information concerning Seller or the Change Assets which, in Bank Control Actthe reasonable judgment of Buyer, could materially adversely affect the business, assets, financial condition or otherwise seek prior approval or non-objection results of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities operations of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation Seller or law, to collectively be deemed to own, control or have the power to vote securities which Buyer (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than provided that the condition set forth in Section 10.3(ethis clause (vi) will lapse on the Closing Date);
(vii) Buyer shall have received a certificate to the effect set forth in clauses (i) and (ii) above, dated the Closing Date and signed by a duly authorized officer of Seller;
(viii) Buyer shall have received a certificate of the Branch Purchase Agreement with respect to Secretary of each Seller, dated the Company’s acceptance Closing Date, setting forth resolutions of the proceeds Board of Directors and of the Acceptable Financing (shareholders or members, as defined in applicable, of Seller authorizing the Branch Purchase Agreement)execution and delivery of this Agreement and each document and instrument required to be executed and delivered by Seller hereunder and the consummation of the transactions contemplated hereby and thereby, shall and certifying that such resolutions were duly adopted and have not been satisfied rescinded or waived.amended as of the Closing Date;
Appears in 1 contract
Conditions. 8.1 The Insured shall give written notice to the Company as soon as reasonably practicable of any claims made against the Insured (aor any specific event or circumstances that may give rise to a claim being made against the Insured) The obligation and which forms the subject of indemnity under this policy and shall give all such additional information as the Company may require. Every claim, writ, summons or process and all documents relating to the event shall be forwarded to the Company immediately they are received by the Insured.
8.2 No admission offer promise or payment shall be made or given by or on behalf of the Investor Insured without the written consent of the Company.
8.3 The Company will have the right but in no case the obligation, to consummate take over and conduct in the Closing name of the insured the defence of any claims and will have full discretion in the conduct of any proceedings and in the settlement of any claim and having taken over the defence of any claim may relinquish the same. All amounts expended by the Company in the defence, settlement or payment of any claim will reduce the limits of indemnity specified in the Schedule of the Policy. In the event that the Company, in its sole discretion chooses to exercise its right pursuant to this condition, no action taken by the company in the exercise of such right will serve to modify or expand in any manner, the company's liability or obligations under this policy beyond what the company's liability or obligations would have been had it not exercised its rights under this condition.
8.4 The Insured shall be subject give all such information and assistance as the Company may reasonably required.
8.5 The Insured shall give notice as soon as reasonably practicable of any fact, event or circumstance which materially changes the information supplied to the condition that all representations Company at the time when this policy was effected and warranties the Company may amend the terms of this policy.
8.6 The Company may at any time pay to the Insured in connection with any claim or series of claims under this policy to which an indemnity limit applies the amount of such limit (after deduction of any sums already paid) or any lesser amount for which such claims can be settled and other statements of upon such payment being made the Company shall relinquish the conduct and control of and be true under no further liability in connection with such claims. <<< 15 >>>
8.7 The Policy and correct the Schedule shall be read together as one contract and any word or expression to which a specific meaning had been attached in any part of this policy or the Schedule shall bear such specific meaning wherever it may appear. The terms and exclusions of this policy (and any phrase or word contained therein) shall be interpreted in accordance with the Indian Law.
8.8 If at the time of happening of any event resulting into a liability under this policy, there be any other liability insurance or insurances effected by the Insured or by any other person covering the same liability, then the Company shall not be liable to pay or contribute more than its rateable proportion of such liability.
8.9 This Policy does not cover liability which at the time of happening of any event resulting into such liability, be insured by or would but for the existence of this policy, be insured by, any other policy (but not a liability policy) or policies, except in respect of any excess beyond the amount which could have been payable under such policy/policies had this insurance not been effected.
8.10 The Company may cancel this Policy by giving thirty days' notice in writing of such cancellation to the Insured's last known address and in such an event the company will return a pro-rata portion of the premium (subject to a minimum retention of 25 per cent of the annual premium) for the unexpired part of the Insurance. This Policy may also be canceled by the Insured by giving thirty days' notice in writing to the Company in which event the Company will retain premium at short period scale provided there is no claim under the Policy during the period of Insurance. In case of any claim under the policy, no refund of premium shall be allowed.
8.11 In the event of Liability arising under the Policy or the payment of a claim under this Policy, the limit of indemnity per any one year under the policy shall get reduced to the extent of quantum of liability to be paid or actual payment of such claim. Under no circumstance it shall be permissible to reinstate the aggregate limit of indemnity to the original level even on payment of extra premium.
8.12 It is also hereby further expressly agreed and declared that if the Company shall disclaim liability to the Insured for any claim hereunder and such claim shall not within 12 calendar months from the date of this Agreement and such disclaimer have been made the date subject matter of suit in a court of Law then the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date claim shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power been abandoned and shall not thereafter be recoverable hereunder. <<< 16 >>>
8.13 The Company shall not be liable to vote securities which (assuming, for make any payment under this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% Policy in respect of any class of voting securities claim if such claim shall be in any manner fraudulent or supported by any statement or device whether by Insured or by any person on behalf of the Company outstanding Insured and/or if the insurance has been continued in consequence of any material mis-statement or the non- disclosure of any material information by or on the date behalf of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedInsured.
Appears in 1 contract
Samples: Professional Indemnity Insurance
Conditions. 5.1.1 Conditions to Obligations of Each Party to Effect the Completion The respective obligations of the Purchaser and the Sellers to commence with the Completion shall be conditional on each of the following conditions being waived in writing by each of the Purchaser and the Sellers’ Representative or fulfilled on or before the Completion Date:
(a) The obligation all filings with and other consents or approvals of any Governmental Authority required to be made or obtained in connection with the Transaction shall have been made or obtained and shall be in full force and effect and any waiting period under any applicable antitrust or other merger control or similar Law that is applicable to the Transaction shall have expired or been terminated;
(b) no outstanding judgment, order, writ, injunction, decree, arbitral award or decision of a court, tribunal, arbitrator or other Governmental Authority (whether temporary, preliminary or permanent) in any jurisdiction shall be in effect that has the effect of making the Transaction illegal or otherwise prohibiting or preventing consummation of the Investor Transaction; and
(c) the Purchaser and the Sellers’ Representative shall have received evidence in form and substance reasonably satisfactory to consummate them that the Closing Purchaser has entered into the Warranty Insurance Policy prior to the date hereof and that the Warranty Insurance Policy shall remain in full force and effect as of the Completion Date.
5.1.2 Conditions to Obligations of the Purchaser to Effect the Completion The obligations of the Purchaser to commence with the Completion shall be subject to the condition that all representations and warranties and other statements conditional on each of the Company following conditions being waived in writing by the Purchaser or fulfilled on or before the Completion Date:
(a) (i) each of the Fundamental Warranties shall have been true and correct in all respects on the date they were made and shall be true and correct in all respects on and as of the Completion Date as though such Fundamental Warranties were made on such date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically other than such Fundamental Warranties as of the date of this Agreement or some other date a specified date, which shall be true and correct in all respects as of such date), except for such failures to be so ) and (ii) all other Seller Warranties shall have been true and correct in all material respects (without giving effect to any qualification limitation as to materiality or Material Adverse Effect contained “materiality” as set forth therein) as would not have, individually in on the aggregate, a Material Adverse Effect; the condition that the Company date they were made and shall have performed be true and correct in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification limitation as to materiality or Material Adverse Effect contained “materiality” set forth therein); ) on and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation as of the Company to consummate the Closing shall be subject to the condition that all Completion Date as though such representations and warranties were made on and as of such date (other statements than such Seller Warranties as of the Investor a specified date, which shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” set forth therein) as of such date);
(b) each of the Sellers shall have performed (or caused to have been performed) and complied in all material respects with each of the covenants and obligations under this Agreement relating to actions to be taken (or not taken) by such Sellers prior to the Completion Date;
(c) no outstanding Action of any nature shall be pending or threatened seeking to restrain or otherwise prohibiting the Transaction or seeking material damages in respect of the Transaction or that would reasonably be expected to require the Purchaser or any of its Affiliates to agree to any change to their respective businesses as currently conducted and as currently contemplated to be conducted;
(d) each of the Employment Agreements and the Non Compete Agreements shall have been executed and shall be in full force and effect, all of the Key Employees shall remain employed by the Company as of immediately prior to the Completion, and none of the Key Employees shall have expressed an intention or interest (whether formally or informally), or taken any action toward, terminating his or her Employment Agreement or Non Compete Agreement;
(e) the Purchaser shall have received from (or on behalf of) each holder of an Option, holder of a Repriced Option or holder of a Designated Promised Option that is a Key Employee, a release agreement reasonably satisfactory to the Purchaser (each, an Option Release Agreement), agreeing that (i) with respect to Vested Options, such holder shall have no rights with respect to such Vested Options at the Completion, other than the right to receive the consideration set forth in Clause 2.4.3(b) with respect to such Options, (ii) with respect to Unvested Options, such holder shall have no rights with respect to such Unvested Option at the Completion, other than the right to receive the consideration set forth in Clause 2.4.3(c) with respect to such Options, (iii) with respect to Repriced Options, such holder shall have no rights with respect to such Repriced Options or (iv) with respect to such Designated Promised Options, such holder shall have no right with respect to such Designated Promised Option, other than the right to receive a grant of a number of restricted stock units of the Purchaser specified in such holder’s Option Release Agreement;
(f) the Purchaser shall have received the Initial Consideration Certificate, the Spreadsheet Certificate and the Funds Flow in accordance with Clause 3.2.5;
(g) the Purchaser shall have received evidence in form and substance satisfactory to the Purchaser that the Company shall have received the Termination Agreements;
(h) the Purchaser shall have received evidence in form and substance satisfactory to the Purchaser that the Company shall have caused the name of SecurityMatters LLC to eliminate “SecurityMatters” and shall have amended the agreements between the Company and SecurityMatters LLC in Agreed Form;
(i) the Purchaser shall have received a certificate from the Company, validly executed by the Chief Executive Officer of the Company for and on the Company’s behalf, certifying that, as of the date Completion, the conditions set forth in 5.1.2(a), 5.1.2(b), 5.1.2(c) and 5.1.2(d) have been satisfied.
5.1.3 Conditions to Obligations of this Agreement the Sellers to Effect the Completion The obligations of the Sellers to commence with the Completion shall be conditional on each of the following conditions being waived in writing by the Sellers or fulfilled on or before the Completion Date:
(a) each of the Purchaser’s warranties hereunder shall have been true and correct in all material respects (without giving effect to any limitation as to “materiality” as set forth therein) on the date of the Closing (except those representations they were made and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” set forth therein) on and as of the Completion Date as though such representations and warranties were made on and as of such date (other than such Purchaser’s Warranties as of a specified date, which shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” set forth therein) as of such date); and and
(b) the condition that the Investor Purchaser shall have performed (or caused to have been performed) and complied in all of its obligations hereunder theretofore to be performed.
(c) The obligation of material respects with each of the Investor covenants and obligations under this Agreement relating to actions to be taken (or not taken) by the Company to consummate the Closing shall be subject Purchaser prior to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedCompletion.
Appears in 1 contract
Conditions. (a) The obligation 2.1 Completion shall be conditional upon:
2.1.1 the German Federal Cartel office having cleared the purchase of the Investor to consummate Shares or the Closing relevant statutory waiting periods having expired (the filing for which shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of made within two business days from the date of this Agreement Agreement);
2.1.2 there having been no material unremedied breach of any of the provisions of Clauses 6.1 and 6.2;
2.1.3 there having been no event not Disclosed in the Disclosure Letter of even date or the disclosure or discovery of any existing fact or circumstance between the date hereof and the date Completion Date which has not been remedied that would be (or could be reasonably expected to be ) adverse to the business, assets, condition, operating results, or operations of the Closing Company (except those representations and warranties that by their terms speak specifically including the Subsidiary), taken as whole, which are in aggregate in excess of £300,000 excluding, for the avoidance of doubt, (i) termination or receipt of intention to terminate, the contracts Disclosed at paragraph 5.1 of the Disclosure Letter of even date or (ii) the resignation of any employee of the Company;
2.1.4 the Company shall have facilitated verbal conversations between a representative of LOUD Technologies Inc and the following distributors; Dah Cxxxx Xxxx Ltd, Adagio, S.A, Algam, Atlantic Audio Gmbh and one UK dealer to be mutually agreed;
2.1.5 the Company shall have facilitated verbal conversations between a representative of LOUD Technologies Inc and the following suppliers, Sarivale, Lab Gruppen, and B&C Speakers and TC Electronics; and
2.1.6 no suit, action or other proceeding shall be pending or threatened in writing before any court or governmental or regulatory official, body or authority or any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (i) prevent the performance of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision consummation of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit of the transactions contemplated hereby or prohibit the Investor from owning or voting declare unlawful any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulatortransactions contemplated hereby; (ii) require the Investor or cause any of its affiliates the transactions contemplated by this Agreement to become a bank holding companybe rescinded following consummation; or (iii) cause affect adversely the Investor, together with any other person whose securities right of the Company would Purchaser to own the Shares or control the Company, and no such injunction, judgment, order, decree or ruling shall have been entered or be aggregated with the Investor’s securities in effect.
2.2 If any of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth out in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Clause 2.1 shall not have been satisfied or waivedwaived in writing by the Purchaser by 5 April 2007 (the “Long Stop Date”), this Agreement (except for the provisions of this Clause and of Clauses 1 (Definitions, interpretation and third party rights), 8 (Guarantee), 14 (Announcements), 17 (Notices), 18 (Governing law and jurisdiction) shall be null and void and of no further effect and the Parties shall be released and discharged from their respective obligations under this Agreement, provided that such termination of this Agreement shall be without prejudice to the rights of the Parties in respect of any breach of clause 2 of this Agreement occurring before the termination.
2.3 The Purchaser in respect of the condition in 2.1.1 and the Purchaser and the Vendors in respect of the remaining conditions each shall use all reasonable endeavours to fulfil or procure the fulfillment of the Conditions as soon as possible and in any event before the Long Stop Date and shall:
2.3.1 keep each other regularly informed of the progress towards satisfaction of each such condition;
2.3.2 immediately notify each other in writing as soon as they are aware that each such condition has been satisfied or has become incapable of satisfaction; and
2.3.3 produce to the other such evidence as the other shall reasonably require of the satisfaction of each such condition capable of satisfaction.
2.4 The Purchaser undertakes that in the event that Completion does not take place as a result of the condition in 2.1.1 above not being fulfilled that it will pay to the Vendors the sum of £250,000.
Appears in 1 contract
Conditions. (a) It shall be a condition to the ESOP's obligation to purchase the Shares hereunder that:
(i) The obligation Trustee obtain from FMV, a valuation opinion, dated as of the Investor Closing Date, to consummate the effect that $7.3333 per share does not exceed the fair market value of the Shares as of the Closing Date and that the terms of the transaction contemplated hereunder are fair to the ESOP from a financial point of view;
(ii) The ESOP obtain from the Company a loan in the amount of $11,000,000 on terms acceptable to the Company and the Trustee;
(iii) The purchase of the Shares occurs simultaneously with the purchase by the ESOP of the additional
(iv) The Trustee obtain from O'Melveny & Myerx x xetter permitting the Trustee to rely on the opinion letter to be delivered by O'Melveny & Myerx xx connection with the closing of the loan under the Fleet Loan Agreement and the stock purchase under the Churxxxxx Agreement;
(v) The Trustee obtain a certificate dated as of the Closing Date, signed by a duly authorized officer of the Company, the truth and accuracy of which shall be subject a condition to the condition ESOP's obligation to purchase the Shares, and to the effect that all (1) the representations and warranties and other statements of the Company shall be set forth in Section 3(c) are to the best of his knowledge, after due inquiry, true and correct as of the date of this Agreement on and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either the Closing Date and (x2) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have has performed all of its obligations hereunder theretofore which are to be performedperformed on or prior to the Closing Date; and
(vi) The Trustee shall have determined that the ESOP's purchase of the Shares does not violate ERISA.
(b) It shall be a condition to the Seller's obligation sell the Shares hereunder that:
(i) the purchase of the Shares occurs simultaneously with the purchase by the ESOP of the additional shares of Series B Stock being sold by other Company shareholders, and the contemporaneous redemption of the Series A stock, as described in Section 1(d); and
(ii) the Trustee obtain from FMV the valuation opinion described in Section 5(a)(1).
(c) The obligation of each of the Investor and the Company to consummate the Closing It shall be subject a condition to the following additional conditionsCompany's obligations hereunder that:
(1i) no provision the Company obtain a term loan in the amount of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit $9,500,000 pursuant to the transactions contemplated hereby or prohibit the Investor from owning or voting any terms of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Fleet Loan Agreement; and
(3ii) the conditions set forth in Section 10 Company obtain $6 million from the sale of preferred stock pursuant to the terms of the Branch Purchase Agreement, other than the Churxxxxx Xxxeement.
(d) It shall be a condition set forth in Section 10.3(e) to each party's obligations hereunder that as of the Branch Purchase Agreement with respect Closing Date, each other party's representations and warranties made under Section 3 are true and correct in all material respects. Any violation of this condition not known prior to the Company’s acceptance of date the proceeds of ESOP purchases the Acceptable Financing (as defined in the Branch Purchase Agreement), Shares shall have been satisfied or waivedconstitute grounds for rescission.
Appears in 1 contract
Conditions. The obligations of the Initial Purchasers to purchase the Notes under this Agreement are subject to the satisfaction of each of the following conditions or waiver thereof by the Initial Purchasers:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company and its Subsidiaries contained in this Agreement and in each of the Documents shall be true and correct as of the date of this Agreement hereof and at the date Closing Date. On or prior to the Closing Date, the Company and each other party to the Documents (other than the Initial Purchasers) shall have performed or complied with all of the Closing (except those representations agreements and warranties that by satisfied all conditions on their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as satisfy would not havenot, individually or in the aggregate, have a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company to consummate after due inquiry, be pending or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding shall be pending or, to the knowledge of the Company after due inquiry, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would not, individually or in the aggregate, have a Material Adverse Effect, except as disclosed in the Final Offering Circular.
(d) Subsequent to the respective dates as of which data and information is given in the Final Offering Circular, there shall not have been any Material Adverse Change.
(e) The Notes shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL market.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(g) The Initial Purchasers shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (1) the Chief Executive Officer and (2) the principal financial or accounting officer of the Company, on behalf of the Company, to the effect that (a) the representations and warranties set forth in Section 4 hereof and in each of the Documents, are true and correct in all respects, as of the date hereof and at the Closing Date, (b) the Company and each other party to the Documents (other than the Initial Purchasers) have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which failure to satisfy would not, individually or in the aggregate, have a Material Adverse Effect), (c) at the Closing Date or since the date of the most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), other than as disclosed in the Final Offering Circular or contemplated hereby, no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), other than as disclosed in the Final Offering Circular or contemplated hereby, neither the Company nor any Subsidiary of the Company has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company and its Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and its Subsidiaries, taken as a whole, and there has not been any change in the Capital Stock or long-term indebtedness of the Company or any Subsidiary of the Company that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and its Subsidiaries, taken as a whole, and (e) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company and the Guarantors, certifying such matters as the Initial Purchasers may reasonably request.
(iii) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in a form satisfactory to the Initial Purchasers.
(iv) the opinion of Xxxxx Xxxxxxx LLP, counsel to the Company, and local counsel for the Company and the Guarantors, dated the Closing Date, in form reasonably satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(v) an opinion, dated the Closing Date, of Mayer, Brown, Xxxx & Maw LLP, counsel to the Initial Purchasers, in form satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(h) The Initial Purchasers shall have received from E&Y, independent auditors, with respect to the Company, (A) a customary comfort letter, dated the date of the Final Offering Circular, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to the financial statements and certain financial information contained in the Final Offering Circular, and (B) a customary "bring down" comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect that E&Y reaffirms the statements made in its letter furnished pursuant to clause (A) above.
(i) Each of the Documents shall have been executed and delivered by all parties thereto, and the Initial Purchasers shall have received a fully executed original of each Document.
(j) The Initial Purchasers shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any transaction contemplated in the Documents.
(k) The Initial Purchasers shall have received the Final Offering Circular, and the terms of each Document shall conform in all material respects to the description thereof in the Final Offering Circular.
(l) None of the parties to any of the Documents are in breach or default in any material respect under their respective obligations thereunder.
(m) The Collateral Agent shall have received on the Closing Date:
(i) appropriately completed copies of Uniform Commercial Code financing statements naming the Company and the Guarantors as debtors and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Security Agreement;
(ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any Security Agreement previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Agreement, other than such financing statements that evidence Permitted Liens);
(iv) such other approvals, opinions, or documents as the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Collateral Agent; and
(v) the Collateral Agent and its counsel shall be satisfied that, concurrent with the purchase of the Notes hereunder by the Initial Purchasers, (i) the Lien granted to the Collateral Agent, for the benefit of the Secured Parties in the collateral described above is of the priority described in the Final Offering Circular; and (ii) no Lien exists on any of the collateral described above other than the Lien created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement, in each case subject to the condition that all representations and warranties and other statements Permitted Liens.
(n) The Initial Purchasers shall have received prior to or contemporaneously with the Closing a payoff letter from the administrative agent under the Company's existing credit agreement (the "Existing Credit Agreement").
(o) All information certified to by an officer of the Investor Company in the Perfection Certificate, to be dated as of the Closing shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 1 contract
Conditions. The obligation of Bank to make any Loan hereunder is subject to the performance by Borrower of its obligations to be performed hereunder and under the Note and the other Credit Documents on or before the date of such Loan and to the satisfaction of the following further conditions:
(a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties contained herein, in the Note and in the other statements of the Company Credit Documents shall be true on and correct as of the date of this Agreement each Loan hereunder with the same effect as though made on and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of each such date), except for ; on each such failures to be so true date no "Event of Default" under and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually defined in the aggregateNote and no event, a Material Adverse Effect; act or condition which with notice or the condition that the Company shall have performed in all material respects all passage of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality time or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect both would constitute such an Event of Default shall have occurred and be continuing with respect to either (x) the Company or (y) the Company exist or shall occur or exist after giving effect to the transactions contemplated Loan to be made on such date; and any request for borrowing under Section 2.(b) below shall constitute a certification by the Branch Purchase AgreementBorrower to both such effects.
(b) The obligation Borrower shall have provided Bank with written notice (or telephonic notice confirmed in writing) of the Company to consummate proposed loan specifying the Closing principal amount thereof and proposed date thereof, which notice shall be subject received by Bank office no later 1:00pm., local time at the place where the proposed loan is payable, on the date (which shall be a day on which the Bank is open for business) of such proposed Loan. Such notice shall contain a certification as to the condition that all representations and warranties and other statements amounts of the Investor shall be true then current Eligible Accounts and correct as of Eligible Inventory. In the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of event Bank receives telephonic notice, Bank may act in reliance upon such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedtelephonic notice, provided Bank has acted in good faith.
(c) The obligation of each of conditions, if any, specified in any Supplement hereto and in the Investor and the Company to consummate the Closing Note or any Credit Document shall be subject have been met to the following additional conditions:satisfaction of Bank.
(1d) no provision of any applicable law or regulation All legal details and no judgment, injunction, order or decree shall prohibit proceedings in connection with the transactions contemplated hereby by this Agreement shall be satisfactory to Bank and Bank shall have received all such counterpart originals or prohibit the Investor from owning certified or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise copies of such securities by the Investor documents and records of proceedings in connection with such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect transactions, in form and substance satisfactory to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase AgreementBank, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect as Bank may from time to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedtime request.
Appears in 1 contract
Samples: Revolving Line of Credit Agreement (C Cor Electronics Inc)
Conditions. Notwithstanding any other provision, as a condition precedent to each Closing (a) The obligation defined below), all of the Investor to consummate the Closing shall following conditions must be subject to the condition that all representations and warranties satisfied:
1. All documents, instruments and other statements of the writings required to be delivered by Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date to Purchaser pursuant to any provision of this Agreement or some other date shall be in order to implement and effect the transactions contemplated herein have been fully executed and delivered, including without limitation those enumerated in Section II.B above;
2. The Common Stock is listed for and currently trading on the Trading Market, Company is in compliance with all requirements to maintain listing on the Trading Market, and there is no notice of any suspension or delisting with respect to the trading of the shares of Common Stock on such Trading Market;
3. The representations and warranties of Company set forth in this Agreement are true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all as if made on such date;
4. No material breach or default has occurred under any Transaction Document or any other agreement with Purchaser; 5. Company has the number of its obligations hereunder theretofore duly authorized shares of Common Stock reserved for issuance as required pursuant to be performed (without giving the terms of this Agreement;
6. There is not then in effect to any qualification as to materiality law, rule or Material Adverse Effect contained therein); and regulation prohibiting or restricting the condition that since transactions contemplated in any Transaction Document, or requiring any consent or approval which will not have been obtained, nor is there any pending or threatened proceeding or investigation which may have the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company effect of prohibiting or (y) the Company after giving effect to adversely affecting any of the transactions contemplated by this Agreement; no statute, rule, regulation, executive order, decree, ruling or injunction will have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits the Branch Purchase transactions contemplated by this Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation , and no judgmentactions, injunctionsuits or proceedings will be in progress, order pending or, to Company’s knowledge threatened, by any person other than Purchaser or decree shall any Affiliate of Purchaser, that seek to enjoin or prohibit the transactions contemplated hereby or prohibit by this Agreement; and
7. Prior to the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Actfirst Closing, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the InvestorCompany’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company accounts payable outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Effective Date shall have been satisfied or waivedbe reduced by at least $250,000.00.
Appears in 1 contract
Conditions. 5.1 The obligations of Purchaser to consummate the transaction contemplated hereby are subject to the following conditions which, if not fulfilled by Closing or as otherwise provided herein, shall entitle Purchaser, at its option, to terminate the Agreement and receive a refund of the Deposit:
(a) The obligation transactions contemplated under this Agreement to be effected on the Closing Date shall not be restrained or prohibited by any injunction or order or judgment rendered by any court or other governmental agency of competent jurisdiction and no proceeding shall have been instituted and be pending in which any creditor of Seller or any other person seeks to restrain such transactions or otherwise to attach any of the Investor to consummate the Closing shall be subject to the condition Property, provided that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement any such proceeding or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions action contemplated by the Branch Purchase Agreement.this Section 5.1(a) shall not be brought by, through or under Purchaser;
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of Seller has timely complied with its obligations hereunder theretofore to be performed.hereunder;
(c) The obligation of each All warranties and representations made by Seller herein are and remain truthful in all material respects; and
(d) At Closing, Purchaser’s title company shall be committed, pursuant to the terms of the Investor Title Commitment and subject to the Company payment of the required premium and satisfaction of all other requirements and conditions set forth in the Title Commitment, to issue an ALTA Owner’s Policy of Title Insurance with liability in an amount equal to the Purchase Price showing the Property vested in Purchaser free and clear of any third party rights of possession, other than residential tenants pursuant to unrecorded leases, and other Permitted Exceptions.
5.2 The obligations of Seller to consummate the Closing shall be transaction contemplated hereby are subject to the following additional conditionsconditions which, if not fulfilled by Closing or as otherwise provided herein, shall entitle Seller, at its option, to terminate the Agreement:
(1a) no provision The transactions contemplated under this Agreement to be effected on the Closing Date shall not be restrained or prohibited by any injunction or order or judgment rendered by any court or other governmental agency of any applicable law or regulation competent jurisdiction and no judgment, injunction, order proceeding shall have been instituted and be pending in which any creditor of Seller or decree shall prohibit the any other person seeks to restrain such transactions contemplated hereby or prohibit the Investor from owning or voting otherwise to attach any of the Investor SharesProperty, provided that any such proceeding or action contemplated by this Section 5.2(a) shall not be brought by, through or under Seller;
(2b) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of Purchaser has timely complied with its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)obligations hereunder; and
(3c) All warranties and representations made by Purchaser herein are and remain truthful in all material respects. If any of the conditions set forth above are not satisfied by the party from whom performance is required (the “Non-Performing Party”), or if such performance is not waived by the other party (the “Performing Party”) on or before the Closing Date, and such other party is not in Section 10 breach of the Branch Purchase its obligations under this Agreement, other than then the condition Performing Party, at its option, may terminate this Agreement by giving written notice to the Non-Performing Party, whereupon the Escrow Agent shall immediately deliver the Xxxxxxx Money to Purchaser. However, nothing set forth in this Section 10.3(e) 5.2 shall be construed, nor is anything herein intended, to limit rights and remedies of any party otherwise set forth in this Agreement in connection with the Branch Purchase Agreement with respect to the Company’s acceptance default of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedany party.
Appears in 1 contract
Samples: Purchase and Sale Agreement (CNL Growth Properties, Inc.)
Conditions. 3.1 This Settlement Agreement shall not be deemed in any respect to constitute an admission by any party that any allegation or contention in this proceeding is true or false. Except as specified in this Settlement Agreement to accomplish the customer benefit intended by this Settlement Agreement, the entry of an order by the Department approving the Settlement Agreement shall not in any respect constitute a determination by the Department as to the merits of any other issue raised in this proceeding.
3.2 The making of this Settlement Agreement establishes no principles and shall not be deemed to foreclose any party from making any contention in any future proceeding or investigation, except as to those issues and proceedings that are stated in this Settlement Agreement as being specifically resolved and terminated by approval of this Settlement Agreement.
3.3 This Settlement Agreement is the product of settlement negotiations. The Settling Parties agree that the content of those negotiations (aincluding any work papers or documents produced in connection with the negotiations) The obligation are confidential, that all offers of settlement are without prejudice to the position of any party or participant presenting an offer or participating in the discussion, and, except to enforce rights related to this Settlement Agreement or defend against claims made under this Settlement Agreement, that they will not use the content of those negotiations in any manner in these or other proceedings involving one or more of the Investor parties to consummate this Settlement Agreement, or otherwise.
3.4 The provisions of this Settlement Agreement are not severable. This Settlement Agreement is conditioned on its approval in full by the Closing Department.
3.5 This Settlement Agreement is also contingent upon, and the Company warrants, the provision of accurate, truthful and updated information by the Company during the settlement negotiation process through the Department’s final order. Notwithstanding any other part of this Settlement Agreement to the contrary, this article 3.5 shall be subject binding on the Settling Parties upon execution of the Settlement Agreement.
3.6 If the Department does not approve the Settlement Agreement in its entirety by December 29, 2006, this filing shall be deemed to be withdrawn and shall not constitute a part of the record in any proceeding or used for any other purpose.
3.7 To the extent permitted by law, the Department shall have its usual jurisdiction to implement the terms of this Settlement Agreement. Nothing in this Settlement Agreement, however, shall be construed to prevent or delay the Attorney General from pursuing any cause of action related to this Settlement Agreement in court under X.X. x. 93A or otherwise.
3.8 From time to time during the term of this Settlement Agreement, the Attorney General, orally or in writing, may request that the Company respond to not more than 20 informal information requests, including sub-parts, per calendar month regarding any matter related to this Settlement Agreement, the filing and subsequent compliance filings or any other rates, charges or tariffs, and the Company shall answer these information requests in a reasonably prompt manner, not to exceed 21 calendar days from issuance.
3.9 Under no circumstances shall: (1) any charge under this Settlement Agreement or tariffs promulgated under it recover costs that are collected by the Company more than once, or through some other rate, charge or tariff; or (2) any charge recover costs more than once in any other rate, charge or tariff collected by the Company. The Settling Parties acknowledge that the collection(s) described in this paragraph, unless fully refunded with interest, as soon as reasonably possible, shall constitute a breach of this Settlement Agreement when discovered and generally known, and be deemed to violate the involved tariffs.
3.10 Notwithstanding any provision in this Settlement Agreement to the condition that all representations and warranties and other statements contrary, no part of this Settlement Agreement shall be interpreted to interfere with the Attorney General’s rights to petition the Department under X.X. x. 164, § 93, or otherwise under law or regulation, for a review of the Company shall be true and correct as or any reason. The signatories listed below represent that they are authorized on behalf of their principals to enter into this Settlement Agreement. By its attorney, /s/ Xxxx Xxxxx /s/ Xxxxxx Xxxxxx Xxxx Xxxxx Xxxxxx Xxxxxx Senior Counsel Chief, Utilities Division Unitil Service Corp. Office of the date of this Agreement Attorney General 0 Xxxxxxx Xxxx Xxxx One Ashburton Place Hampton, NH 03842 Xxxxxx, XX 00000-0000 Dated: November 29, 2006 Dated: November 29, 2006 Fitchburg Gas and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinElectric Light Company ) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.D.T.E 06-
Appears in 1 contract
Samples: Settlement Agreement (Unitil Corp)
Conditions. (a) The obligation of any Agent, as agent of the Investor Company, at any time (“Solicitation Time”) to consummate solicit offers to purchase the Closing Notes, the obligation of any Agent to purchase Notes as principal pursuant to any Terms Agreement or otherwise, and the obligation of any other purchaser to purchase Notes hereunder or under any Terms Agreement shall in each case be subject subject: (1) to the condition that all representations and warranties of the Company herein are accurate as of each time specified in the initial paragraph of Section 1, as applicable, (2) that all statements of officers of the Company made in any certificate furnished pursuant to the provisions hereof are accurate (i) in the case of an Agent’s obligation to solicit offers to purchase Notes, at and as of such Solicitation Time and (ii) in the case of any Agent’s or any other statements purchaser’s obligation to purchase Notes, at and as of the time the Company accepts the offer to purchase such Notes and, as the case may be, at and as of the related Time of Delivery or time of purchase; (3) to the condition that at or prior to such Solicitation Time, time of acceptance, Time of Delivery or time of purchase, as the case may be, the Company shall have complied with all its agreements and all conditions on its part to be performed or satisfied hereunder; and (4) to the following additional conditions when and as specified:
(a) Prior to such Solicitation Time or corresponding Time of Delivery or time of purchase, as the case may be:
(i) the Prospectus as amended or supplemented (including, if applicable, the Pricing Supplement) with respect to such Notes shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the Securities Act; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the rating accorded any securities of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act;
(iii) there shall not have occurred any change or any development in or affecting particularly the business or properties of the Company or its subsidiaries which, in the judgment of the applicable Agent, materially impairs the investment quality of the Notes; and
(iv) (A) trading generally shall not have been suspended on or by, as the case may be, any of the New York Stock Exchange or the NASDAQ Stock Market, minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities shall not have been required, on the New York Stock Exchange or the NASDAQ Stock Market, by such Exchange or by order of the Commission or any other governmental authority having jurisdiction; (B) trading in any securities of the Company shall be true and correct as not have been suspended by the Commission or a national securities exchange or in any over-the-counter market; (C) any major disruption of the date settlements of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date securities shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares a general moratorium on commercial banking activities in New York shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied declared by either Federal or waived.New York State authorities; or
Appears in 1 contract
Conditions. 1. [ ], AND ITS AGENTS AND/OR EMPLOYEES, MAKE NO REPRESENTATION AND EXTEND NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SAFETY, EFFICACY, OR VALIDITY OF PATENT RIGHTS CLAIMS, ISSUED OR PENDING, WITH RESPECT TO THE PATENT RIGHTS NOR IS THERE A WARRANTY THAT THE USE OF THE PATENT RIGHTS AND/OR TANGIBLE MATERIAL WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER RIGHTS.
2. Company must indemnify, defend and hold [ ], its trustees, officers, employees and affiliates, harmless against all claims and expenses, including legal expenses and reasonable attorneys’ fees, arising out of the death or injury to any person or persons or out of any damage to property and against any other claim, proceeding, demand, expense and liability of any kind whatsoever resulting from (a) The obligation possession of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements Tangible Material, (c) utilization of the Company shall be true and correct as Tangible Material in any way or (c) engaging in any activities relating to this [ ] Agreement. 3 This [ ] Agreement is not assignable by either party without the prior written consent of the date of other party; provided, that, Company may assign this [ ] Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement without such consent to a successor to all or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects substantially all of its obligations hereunder theretofore business to which this [ ] Agreement relates, whether by merger, purchase, reorganization or otherwise. Any attempt to assign this [ ] Agreement in violation of this Section C.2. shall be null and void.
4. All notices required to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing given under this [ ] Agreement shall be subject to the condition that all representations in writing and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to ownhave been sufficiently given for all purposes thereof when sent by ema i l or overnight by the U. S. Postal Service or overnight by courier and shall be evidenced by an ema i l transmission confirmation, control or the tracking number issued by the post office or courier. Notwithstanding the above sentence, any termination notice given by [ ] under Section C.5 shall be sent to the Company by email and overnight letter. All notices and any correspondence respecting this Agreement shall be addressed and sent out as follows: To [ ]: For delivery via U.S. Postal Service: [ ] For delivery via courier: [ ] To Company: For delivery via U.S. Postal Service and courier: CABBACIS, LLC 0000 Xxxxxxx Xxxx, Xx. 000 Williamsville, NY 14221
5. [ ] shall have the power right to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor written notice. [ ] Agreement is terminated and such other persons) would represent more than 9.9% of any class of voting securities of the [ ] shall have no further obligation to Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance Patent Rights. Sections A.6., A.7., B.8., B.10., B.11., B.12, C.1., C.2., C.4., C.6., and C.8. shall survive the expiration or any termination of this [ ] Agreement.
6. Unless the parties otherwise agree in writing, or unless [ ] provides Company with a written request to the contrary, [ ] Agreement [ ].
7. [ ]
8. [ ]
9. In the event any provision of this [ ] Agreement is found by any court or tribunal to be partially or wholly invalid or unenforceable, the remainder of the proceeds [ ] Agreement nevertheless shall be enforceable and binding, and the invalid or unenforceable provision shall be modified or restricted to the extent and in the manner necessary to render the same valid and enforceable, or, if such provision cannot under any circumstances be so modified or restricted, it shall be excised from the Agreement without affecting the validity or enforceability of any remaining provisions. The parties agree that any such modification, restriction or excision may be accomplished by their mutual written agreement.
10. The parties acknowledge that they consulted, or had the opportunity to investigate and/or consult, with their legal counsel and/or other advisors with respect to the Patent Rights and the terms of this Agreement.
11. The parties acknowledge that this [ ] Agreement sets forth the entire understanding and intentions of the Acceptable Financing parties hereto as to the subject matter hereof and supersedes all previous representations, negotiations, or understandings between the parties and/or its employees or agents, whether written or oral, regarding the subject matter of this Agreement. No subsequent modification hereof shall be made except in a writing executed by [ ] and Company.
12. The parties to this document agree that a copy of the original signature (as defined in including an electronic copy) may be used for any and all purposes for which the Branch Purchase Agreement), shall original signature may have been satisfied used. The parties further waive any right to challenge the admissibility or waivedauthenticity of this document in a court of law based solely on the absence of an original signature.
Appears in 1 contract
Samples: Development and Commercialization Agreement (Cabbacis Inc)
Conditions. The obligations of the Initial Purchaser to purchase the Notes under this Agreement are subject to the satisfaction (or waiver by the Initial Purchaser) of each of the following conditions:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company contained in this Agreement and in each of the Documents shall be true and correct as of the date of this Agreement hereof and at the date Closing Date. On or prior to the Closing Date, the Company and each other party to the Documents (other than the Initial Purchaser) shall have performed or complied with all of the Closing (except those representations agreements and warranties that by satisfied all conditions on their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as satisfy would not havenot, individually or in the aggregate, have or result in a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation No injunction, restraining order or order of the Company to consummate the Closing any nature by a Governmental Authority shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct have been issued as of the date Closing Date that would prevent or materially interfere with the consummation of this Agreement the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the date qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company, be pending or contemplated as of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) The obligation of each No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Investor Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding shall be pending or, to the knowledge of the Company, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would not, individually or in the aggregate, have or result in a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Time of Sale Circular and the Final Offering Circular, there shall not have been any Material Adverse Change.
(e) The Notes shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in PORTAL.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to consummate the Notes than that on which the Notes were marketed.
(g) The Initial Purchaser shall have received on the Closing shall be subject to the following additional conditionsDate:
(i) certificates dated the Closing Date, signed by (1) no provision of any applicable law or regulation the Chief Executive Officer and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor principal financial or accounting officer of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActCompany, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities on behalf of the Company would be aggregated Company, to the effect that (a) the representations and warranties set forth in Section 3 hereof and in each of the Documents and the information in the Perfection Certificate are true and correct in all material respects with the Investor’s securities same force and effect as though expressly made at and as of the Company for purposes of any bank regulation or lawClosing Date, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other personsb) would represent more than 9.9% of any class of voting securities of the Company outstanding has performed and complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date hereof or since the date of the Closing most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after giving effect the date hereof), to the purchase knowledge of such officers, no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have or result in a Material Adverse Effect, (d) since the date of the Investor Shares contemplated herebymost recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than as described in the Final Offering Circular or contemplated hereby, the Company has not incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company and its Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition set forth in Section 10.3(e(financial or otherwise) or results of operations or prospects of the Branch Purchase Agreement Company and its Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and its Subsidiaries, taken as a whole, and (e) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company, certifying such matters as the Initial Purchaser may reasonably request.
(iii) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in the form previously approved by the Initial Purchaser.
(iv) the opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Company, dated the Closing Date, in the form of Exhibit A attached hereto.
(v) an opinion, dated the Closing Date, of Mayer, Brown, Xxxx & Maw LLP, counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(h) The Initial Purchaser shall have received from Xxxxx Xxxxxx & Company LLC, independent public accountants under the standards established by the American Institute of Certified Public Accountants, with respect to the Company’s acceptance , (A) a customary comfort letter, dated the date of this Agreement, in form and substance reasonably satisfactory to the proceeds of the Acceptable Financing (as defined Initial Purchaser, with respect to certain financial statements and certain financial information contained in the Branch Purchase Time of Sale Circular and the Final Offering Circular, and (B) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that Xxxxx Xxxxxx & Company LLC reaffirms the statements made in its letter furnished pursuant to clause (A).
(i) The Initial Purchaser shall have received from Deloitte & Touche LLP, independent public accountants under the standards established by the American Institute of Certified Public Accountants, with respect to the Company, (A) a customary comfort letter, dated the date of this Agreement, in form and substance reasonably satisfactory to the Initial Purchaser, with respect to certain financial statements and certain financial information contained in the Time of Sale Circular and the Final Offering Circular, and (B) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that Deloitte & Touche LLP reaffirms the statements made in its letter furnished pursuant to clause (A).
(j) Each of this Agreement, the Indenture, the Collateral Agreements, the Intercreditor Agreement, and the Notes shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of each of the Documents.
(k) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any transaction contemplated in the Documents.
(l) The terms of each Document shall conform in all material respects to the description thereof in the Time of Sale Circular.
(m) The Credit Agreement Amendment shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of such document which shall be in form and substance reasonably satisfactory to the Initial Purchaser.
(n) On the Closing Date, the Company shall have paid or caused to have been paid in cash the reasonable fees and expenses of Mayer, Brown, Xxxx & Maw LLP, counsel to the Initial Purchaser.
(o) The Collateral Agent shall have received (with a copy for the Initial Purchaser) on the Closing Date:
(i) appropriately completed copies of Uniform Commercial Code financing statements naming the Company as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Security Agreement;
(ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any security agreement previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Agreement, other than such financing statements that evidence Permitted Liens);
(iv) such other approvals, opinions, or documents as the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Collateral Agent; and
(v) the Collateral Agent and its counsel shall be satisfied that (i) the Lien granted to the Collateral Agent, for the benefit of the Secured Parties in the collateral is a valid and enforceable Lien; and (ii) no Lien exists on any of the collateral described above other than the Lien created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement, or waivedPermitted Liens.
(p) All Uniform Commercial Code financing statements or other similar financing statements and Uniform Commercial Code Form UCC-3 termination statements required pursuant to clause (m)(ii) and (iii) above (collectively, the “Filing Statements”) shall have been delivered to CT Corporation System or another similar filing service company acceptable to the Collateral Agent (the “Filing Agent”). The Filing Agent shall have acknowledged in a writing reasonably satisfactory to the Collateral Agent and its counsel (i) the Filing Agent’s receipt of all Filing Statements, (ii) that the Filing Statements have either been submitted for filing in the appropriate filing offices or will be submitted for filing in the appropriate offices within ten days following the Closing Date and (iii) that the Filing Agent will notify the Collateral Agent and its counsel of the results of such submissions within 30 days following the Closing Date.
(q) The Company, CitiSteel and CitiSteel PA, Inc. shall have entered into a Tax Sharing Agreement, and CitiSteel shall have obtained a favorable opinion as to the fairness of the financial terms of the Tax Sharing Agreement from Innovation Capital, LLC in satisfaction of the requirements of Section 4.14(a) of the indenture governing CitiSteel’s senior secured floating rate notes due 2010, which opinion shall be in form and substance reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions. (a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements following obligations of the Company shall be true satisfied or fulfilled on or prior to the date of the Closing, unless otherwise agreed to in writing by the Placement Agent:
(a) The Company shall have delivered to the Placement Agent, at the Closing, (i) a currently-dated long-form good standing certificate or telegram from the Secretary of State where the Company is incorporated and correct each other jurisdiction in which the Company is qualified to do business as a foreign corporation; (ii) the articles of incorporation of the Company, as currently in effect, certified by the Secretary of State of the state where the Company is incorporated; (iii) by- laws of the Company certified by the secretary of the Company; and (iv) certified resolutions of the Board of Directors of the Company approving this Agreement and the sale of the Debentures.
(b) There shall have occurred no event which had a Material Adverse Effect on the Company or any of its businesses, assets, prospects or the Company's securities since the date of this Agreement and Agreement.
(c) No litigation or administrative proceeding shall have been threatened or commenced against the date Company which (i) seeks to enjoin or otherwise prohibit or restrict the consummation of the Closing transactions contemplated by this Agreement or (except those representations ii) if adversely determined, would have a Material Adverse Effect on the Company or the Company's securities.
(d) The Company shall have delivered to the Placement Agent a certificate of its principal executive and warranties that by their terms speak specifically financial officers as of to the date matters set forth in Sections 7(a), (b) and (c) of this Agreement and to the further effect that (i) the Company is not in default, in any respect, under any note, loan agreement, security agreement, mortgage, deed of trust, indenture, contract, alliance agreement, lease, license, joint venture agreement, agreement or some other date shall be true and correct as of such date)instrument to which it is a party, except for where such failures to be so true default has not and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would will not have, individually in the aggregate, have a Material Adverse Effect; (ii) the Company's representations and warranties contained in this Agreement are true and correct in all respects on such date with the same force and effect as if made on such date; (iii) there has been no amendment or changes to the Company's articles of incorporation or by-laws or authorizing resolutions from those delivered pursuant to Section 7(a) of this Agreement; and (iv) no event has occurred which, with or without the lapse of time or giving of notice, or both, would constitute a breach or default thereof by the Company or would cause acceleration of any obligation of the Company, or could adversely affect the business, operations, financial condition that or prospects of the Company.
(e) The Placement Agent shall have received the opinion of Rutan & Tucker, LLP, counsex xxx thx Xxxxany, dated as of the Closing date in form and substance reasonably satisfactory to the Placement Agent and its counsel.
(f) The Company shall have prepared and filed or delivered to counsel for filing with the SEC and any states in which such filing is required, a Form D relating to the sale of the Debentures and such other documents and certificates as are required.
(g) Subscriptions for the Debentures shall have been accepted by the Company.
(h) In addition to the right of the Placement Agent to terminate this Agreement and not consummate the transactions contemplated by this Agreement as a result of the failure of the Company to comply with any of its obligations set forth in this Agreement, this Agreement may be terminated by the Placement Agent by written notice to the Company at any time prior to the Closing if, in the Placement Agent's sole judgment, (i) the Company shall have performed in all sustained a loss that is material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated Company, taken as a whole, whether or not insured, by the Branch Purchase Agreement.
(b) The obligation reason of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and fire, earthquake, flood, accident or other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement calamity, or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of from any applicable law labor dispute or regulation and no judgment, injunctioncourt or government action, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulatordecree; (ii) require the Investor trading in securities on any exchange or any of its affiliates to become a bank holding company; system shall have been suspended or (iii) cause the Investorlimited, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation either generally or lawspecifically, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance 's Common Stock; (iii) material governmental restrictions have been imposed on trading in securities, generally or specifically, with respect to the Company's Common Stock (not in force and effect on the date of the proceeds of the Acceptable Financing (as defined in the Branch Purchase this Agreement), ; (iv) a banking moratorium shall have been satisfied declared by Federal or waivedNew York State authorities; (v) an outbreak of major international hostilities or other national or international calamity shall have occurred; (vi) the Congress of the United States or any state legislative body shall have passed or taken any action or measure, or such bodies or any governmental body or any authoritative accounting institute, or board, or any governmental executive shall have adopted any orders, rules or regulations, which the Placement Agent reasonably believes is likely to have a Material Adverse Effect on the business, financial condition or financial statements of the Company or the market for the Common Stock; (vii) the Common Stock shall have been delisted from NASDAQ or the Company shall have received notice from NASDAQ advising the Company of its intention to have the Common Stock delisted from NASDAQ, whether conditional or otherwise, or the Company shall fail to meet the requirements for continued listing on NASDAQ; or (viii) there shall have been, in the Placement Agent's judgment, a material decline in the Dow Jones Industrial Index or txx xxrket price of the Common Stock at any time subsequent to the date of this Agreement.
Appears in 1 contract
Conditions. (a) The obligation obligations of the Investor to consummate the Closing shall Remarketing Agent hereunder will be subject to the condition that all accuracy, when made and on the Rate Reset Date, as applicable, of the representations and warranties and other statements of the Company shall be true and correct as of Company, to the date of this Agreement and the date of the Closing (except those representations and warranties that performance by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore hereunder, and to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional terms and conditions:
(1i) no provision the Offering Materials at the Rate Reset Date will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; PROVIDED that this condition to the Remarketing Agent's obligations hereunder will not apply with respect to information contained in or omitted from the Offering Materials in reliance upon and in conformity with written information furnished to the Company by the Remarketing Agent specifically for inclusion therein;
(ii) to the extent that any Offering Materials have been provided to the Remarketing Agent pursuant to Section 3, the Remarketing Agent will have received such certificates, opinions of counsel, accountants' letters and other support for the information contained in such Offering Materials as the Remarketing Agent or its counsel shall have requested pursuant to Section 3(b) with effect, if requested by the Remarketing Agent, on and as of the Rate Reset Date;
(iii) on the Rate Reset Date (a) trading generally shall not have been suspended or materially limited on or by, as the case may be, the New York Stock Exchange, (b) trading of any applicable law notes or regulation other securities of or guaranteed by the Company shall not have been suspended on any exchange or in any over-the-counter market, (c) a general moratorium on commercial banking activities in New York shall not have been declared by either federal or New York State authorities or (d) there shall not have occurred any outbreak or escalation of hostilities or any calamity or crisis that, in the judgment of the Remarketing Agent, is material and no judgmentadverse and which, injunctionin the judgment of the Remarketing Agent, order or decree shall prohibit makes it impracticable for it to perform any of its obligations enumerated in Section 2;
(iv) subsequent to the transactions contemplated hereby or prohibit day ninety days prior to the Investor from owning or voting Submission Date or, if earlier, the Filing Date, there will not have been any decrease in the rating of any of the Investor SharesCompany's debt securities by a "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) (or any applicable successor rule) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change;
(2v) no event will have occurred which would permit a Capital Event, '40 Act Event or Tax Event (each as defined in the purchase by the Investor of the Investor Shares shall not (iIndenture) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause effective, except as disclosed in the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Offering Materials; and
(3vi) any registration statement required to be filed with the conditions set forth Commission pursuant to Section 3(a) will have been so filed and become effective on or prior to the respective dates specified in Section 10 3(a); the Prospectus will have been filed with the Commission pursuant to Rule 424(b) (or any applicable successor rule) within the applicable time period prescribed for such filing by the Rules and Regulations and prior to the Rate Reset Date; no stop order suspending the effectiveness of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Registration Statement or any part thereof will have been issued and no proceeding for that purpose shall have been satisfied initiated or waivedthreatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and no order suspending the qualification of the Capital Securities (or, if a Distribution Event shall have occurred, the Junior Subordinated Debt Securities) under any applicable state securities or "Blue Sky" laws shall have been issued, and no proceeding for that purpose shall have been initiated or threatened.
Appears in 1 contract
Samples: Remarketing Agreement (National City Capital Trust I)
Conditions. (a) The obligation Purchase Option shall be exercisable only prior to July 1, 2002. If the Purchase Option is not duly exercised within the period allowed hereunder or does not include the earnxxx xxxey deposit referred to below, the Purchase Option shall automatically terminate and be of no further force and effect. The Purchase Option shall be exercised by Tenant by written notice signed by Tenant and received by Landlord on or before July 1, 2002. The date of Tenant's election shall be the date that Landlord receives the notice of election. The closing date for the purchase and sale of the Investor Premises shall be on the date which is either (i) ninety (90) days after the date of Tenant's election provided the date of Tenant's election is no later than July 1, 2002, or (ii) on a date selected by Landlord provided the same is no later than nine (9) months after the date of Tenant's election. The notice of exercise to be effective shall be accompanied by a cashier's or certified check in the sum of ONE HUNDRED THOUSAND AND NO/00 DOLLARS ($100,000.00), which sum shall be earnxxx xxxey and shall be applied toward the Purchase Price at the Closing, as such terms are hereinafter defined; such sum shall be placed in an interest bearing account with interest accruing until Closing for Tenant's benefit. In the event that after exercising the Purchase Option Tenant fails to consummate the Closing shall be subject to the condition that all representations and warranties and other statements purchase of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding Premises on the date of the Closing (after giving effect for any reason other than as a result of Landlord's failure to deliver title to the purchase Premises as required hereunder, the earnxxx xxxey deposit plus accrued interest shall be forfeited to Landlord as liquidated damages for the breach of this provision of the Investor Shares contemplated hereby); and
(3) Lease. At all times after the conditions set forth in Section 10 exercise of the Branch Purchase AgreementOption and prior to the actual Closing or if the Closing does not occur due to a default by Tenant, other than the condition set forth this Lease shall remain in Section 10.3(e) full force and effect and all of the Branch Purchase Agreement with respect obligations of Tenant, including, but not limited to, the obligation to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), pay Rent shall have been satisfied or waivedcontinue.
Appears in 1 contract
Samples: Industrial Building Lease (Nanophase Technologies Corporation)
Conditions. (a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the 5.1 Closing shall be subject to the following additional conditionsConditions being satisfied (or waived by the relevant party (as applicable)) save, in each case, to the extent that the same is conditional only upon satisfaction or waiver of any of the Conditions in accordance with this Clause 5 or any of the Transaction Documents:
(1a) no provision Authority shall have enacted, issued, promulgated, enforced or entered any Governmental Order which is in effect and has the effect of any applicable law making the Transactions as illegal, otherwise restraining or regulation and no judgment, injunction, order prohibiting consummation of such transactions or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting causing any of the Investor SharesTransactions contemplated hereunder to be rescinded following Closing thereof;
(2b) the purchase Transaction Documents shall have been duly executed and delivered; and
(c) no enactment or proposal of any legislation having occurred (including any subordinate legislation) which would prohibit, materially restrict or materially delay the implementation of the Transactions.
5.2 The obligation of the Seller to consummate the Closing is subject to the satisfaction or waiver of the following as further conditions to Closing:
(a) the passing of resolutions of the Board of Directors of the Purchaser approving the Transactions;
(b) the Seller having received, to its reasonable satisfaction, the Initial Deposit in accordance with Clause 4.1, subject to Clause 4.2;
(c) the Seller having received written confirmation, to its reasonable satisfaction, that the Deposit has been deposited in full into the Escrow Account in accordance with Clause 4.2;
(d) the Purchaser having performed all material respects of all of its covenants and agreements in this Agreement and the Transaction Documents required to be performed by the Investor Purchaser prior to Closing; and
(e) no person having commenced, or threatened to commence, any proceedings or investigation for the purpose of prohibiting or otherwise challenging or interfering with the Transactions.
5.3 The obligation of the Investor Shares shall not (i) require Purchaser to consummate the Investor Closing is subject to the satisfaction or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities waiver of the Company would be aggregated with following as further conditions to Closing:
(a) the Investor’s securities passing of resolutions of the Company for purposes Board of any bank regulation or lawDirectors of the Seller approving the Transactions;
(b) the closing, to collectively be deemed to ownthe reasonable satisfaction of the Purchaser, control or have of the power to vote securities which Restructuring (assuming, for this purpose only, full conversion and/or exercise except where any part of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving Restructuring is contemplated to take effect to the purchase of the Investor Shares contemplated herebyupon Closing); and
(3c) the conditions set forth Seller having performed all material respects of all of its covenants and agreements in Section 10 this Agreement and the Transaction Documents required to be performed by the Seller prior to Closing.
5.4 If at any time the Purchaser or the Seller becomes aware of any event, circumstance or condition that would be reasonably likely to prevent a Condition being satisfied it shall forthwith inform the other party.
5.5 Each party shall notify the other in writing promptly upon it becoming aware that any of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall Conditions have been satisfied.
5.6 No party may rely on the failure of any Condition, as the case may be, to be satisfied to excuse such party’s obligation on consummate Closing if such failure was caused by such party’s (or waivedits Affiliates’) breach of this Agreement or failure to satisfy the Conditions.
Appears in 1 contract
Conditions. 10.1 The obligation of SCOLP to consummate the acquisition of the Membership Interests is expressly conditioned upon the following, each of which constitutes a condition precedent to the obligations of SCOLP hereunder which, if not performed or determined to be acceptable to SCOLP on or before the Contribution Date (unless a different time for performance is expressly provided herein), shall permit SCOLP, at its sole option, to declare this Agreement null and void and of no further force and effect by written notice to Contributor, whereupon none of Contributor, the Owner, the Holding Company nor SCOLP shall have any further obligations hereunder to the other (provided that SCOLP shall have the right to waive any one or all of such conditions):
(a) The obligation of On the Investor Contribution Date, title to consummate the Closing Project and the Contributed Membership Interests shall be subject in the condition required by this Agreement and the Title Company shall be in a position to issue the title policy pursuant to the condition that Commitment.
(b) The Contributor, Owner and Holding Company shall have complied with and performed all representations covenants, agreements and conditions on their part to be performed under this Agreement within the time herein provided for such performance.
(c) The representations, warranties and other statements agreements of Contributor, Owner and the Holding Company contained herein and in all documents and agreements executed pursuant hereto are and shall be true and correct as of the date of this Agreement hereof and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the Contribution Date in all material respects.
(d) From and after the date hereof to the Contribution Date, there shall have been no material adverse change in or to the Project, the business conducted thereon, Owner or the Holding Company.
(e) SCOLP shall have obtained, at its sole cost and expense, a "Phase 1" environmental audit (the "Phase 1 Audit") of the Project reflecting that the Project is free of and does not contain any Hazardous Materials, and otherwise in form and content acceptable to SCOLP. If the Phase 1 Audit discloses any condition which requires further review or investigation, SCOLP may obtain, at its sole expense, a "Phase 2" environmental audit of the Project which is acceptable in form and content to SCOLP, in its sole discretion, and the Contribution Date shall be extended for an additional thirty (30) days to provide SCOLP with sufficient time to receive, review and approve such Phase 2 environmental audit.
(f) The holder of the Mortgage and the Mortgage Note shall have delivered to SCOLP a payoff letter and such other documents and evidence reasonably satisfactory to SCOLP (such as a form of mortgage release and termination and UCC-3 termination statements, etc.) that the holder of the Mortgage and the Mortgage Note will, upon receipt of the Mortgage Payoff Amount, release and terminate the Mortgage and all other liens, claims and encumbrances of such holder on the Project.
(g) No action, suit, proceeding or investigation shall have been instituted before any court or governmental body, or instituted by any governmental agency, to restrain or prevent consummation of the transactions under this Agreement or some which would affect the right of SCOLP to own, operate and control the Holding Company, the Owner or the Project.
10.2 The obligation of Contributor to consummate the contribution of the Membership Interests is expressly conditioned upon the following, each of which constitutes a condition precedent to the obligations of Contributor hereunder which, if not performed or determined to be acceptable to Contributor on or before the Contribution Date (unless a different time for performance is expressly provided herein), shall permit Contributor, at its sole option, to declare this Agreement null and void and of no further force and effect by written notice to the SCOLP, whereupon none of Contributor, the Owner, the Holding Company nor SCOLP shall have any further obligations hereunder to the other date (provided that Contributor shall be true and correct as have the right to waive any one or all of such date), except for such failures to be so true and correct conditions):
(without giving effect to any qualification as to materiality or Material Adverse Effect contained thereina) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company SCOLP shall have complied with and performed in all material respects all of covenants, agreements and conditions on its obligations hereunder theretofore part to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and under this Agreement within the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementtime herein provided for such performance.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and representations, warranties and other statements agreements of the Investor SCOLP contained herein and in all documents and agreements executed pursuant hereto are and shall be true and correct as of the date of this Agreement hereof and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed Contribution Date in all of its obligations hereunder theretofore to be performedmaterial respects.
(c) The obligation of each of Contributor shall have received the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:consideration provided in Section 2 above.
(1d) no provision of any applicable law No action, suit, proceeding or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), investigation shall have been satisfied instituted before any court or waivedgovernmental body, or instituted by any governmental agency, to restrain or prevent consummation of the transactions under this Agreement.
Appears in 1 contract
Conditions. The several obligations of the Underwriters to purchase the Securities under this Agreement are subject to the satisfaction of each of the following conditions:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company and WFS contained in this Agreement shall be true and correct on the Closing Date with the same force and effect as if made on and as of the date of this Agreement and the date of the Closing Date.
(except those representations and warranties that by their terms speak specifically as of b) The Registration Statement shall have become effective not later than ___P.M., North Carolina time, on the date of this Agreement or some other at such later date and time as the Representative may approve in writing, and at the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been commenced or shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality pending before or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedCommission.
(c) Since June 30, 1999, there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, affairs or business prospects, whether or not arising in the ordinary course of business, of the Company or WFS. On the Closing Date, the Representative shall have received (i) a certificate dated the Closing Date, signed by the President or a Vice President of the Company, confirming the matters set forth in paragraphs (a) (as to the Company's representations and warranties only), (b) and (c) of this Section (as to the Company only), and (ii) a certificate dated the Closing Date, signed by the President or a Vice President of WFS, confirming the matters set forth in paragraphs (a) and (c) of this Section. Such officers may in each certificate rely upon the best of their information and belief as to proceedings contemplated.
(d) The obligation Representative shall have received the opinion of Mitcxxxx, Xxlbxxxxxx & Xnupx XXX, counsel for the Company, dated the Closing Date and satisfactory to counsel to the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly existing and in good standing under the laws of the State of California, with corporate power and authority to own its properties, to conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement and each of the Investor Basic Documents to which it is a party, and is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the Company location of its properties or the character of its operations makes such qualification necessary, except such jurisdictions, if any, in which the failure to consummate be 13 14 so qualified will not have a material adverse effect on either the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law business or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any properties of the Investor Shares;Company.
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require The statements in the Investor or any Prospectus set forth under the captions "Summary of its affiliates Prospectus", "The Notes", "The Certificates", "The Contracts Pool" and "Certain Information Regarding the Securities", insofar as such statements purport to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities summarize certain provisions of the Company would be aggregated with Notes, the Investor’s securities Certificates or the Basic Documents, provide a fair summary of such provisions, and the statements in the Prospectus under the captions "Summary of Prospectus -- Tax Status", " -- ERISA Considerations", "Certain Legal Aspects of the Company for purposes of any bank regulation or lawContracts", "Certain Federal Income Tax Consequences", "Certain California Income Tax Consequences" and "ERISA Considerations", to collectively be deemed to own, control the extent such statements constitute matters of law or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement legal conclusions with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement)thereto, shall have been satisfied prepared or waivedreviewed by such counsel and are correct in all material respects.
Appears in 1 contract
Samples: Underwriting Agreement (WFS Financial Auto Loans Inc)
Conditions. Purchaser’s and Seller’s respective obligations to consummate the transactions described herein shall be contingent upon:
(a) The obligation representations, warranties and covenants of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be party set forth in this Agreement being true and correct in all material respects on and as of the date of this Agreement Closing in the same manner and with the date same effect as though such representations, warranties and covenants had been made on and as of the Closing; and
(b) As of the Closing Date, the other party shall have performed its obligations hereunder in all material respects and all deliveries to be made at Closing shall have been tendered. In the event that a condition precedent to the obligations of a party shall not occur by the Closing and the occurrence of such condition is not waived by such party, then this Agreement shall terminate, the Deposit (less $25,000.00 which shall be paid to Seller) and the Prepayment shall be paid to Purchaser (except those in the event Purchaser’s representations and warranties that are not true in all material respects, in which event the entire Deposit and the Prepayment will be paid over to Seller) and neither party shall have any further obligation to the other except for such obligation which, by their its terms speak specifically as and stated to survive the termination of this Agreement. Provided, however, the failure of any of the date conditions in this paragraph 6 to occur that is a result of the default by a party under this Agreement shall remain subject to the rights and remedies of the non-defaulting party under paragraph 13, but provided further, however, with respect to subsection 6(a) above, a change in circumstances occurring after the Effective Date and prior to the Closing Date (as hereinafter defined) which shall make a representation or warranty no longer true and correct, shall not be a default hereunder (unless such change in circumstance was caused by the party making a representation) but shall give rise to a failure of the condition precedent to the other party’s obligation to close on the Project under Paragraph 6(a) and the rights of the parties hereto shall be limited to those set forth in the first sentence of this Agreement paragraph, and except that the failure of a representation or some other date shall warranty to be true and correct when made shall be deemed to be default under this Agreement.”
7. Paragraph 8(a) is hereby amended and restated in its entirety to read as follows:
(a) If, prior to the Closing, action is initiated to take all or such portions of the Real Property of the Project such dateas to have an adverse impact on the Project, by eminent domain proceedings or by deed in lieu thereof, Seller shall, within ten (10) days after having knowledge thereof, notify Purchaser in writing, and Purchaser may either (i) terminate this Agreement and receive a return of the Deposit and the Prepayment by delivering written notice to Seller within ten (10) days after receipt of Seller’s notice, or (ii) consummate the Closing, in which latter event the award of the condemning authority shall be assigned by Seller to Purchaser at the Closing.”
8. The first sentence of Paragraph 8(c) is hereby amended and restated as follows: “If the damage referred to in Paragraph 8(b) would, in the reasonable estimate of the Seller, cost in excess of Five Hundred Thousand Dollars ($500,000.00), this Agreement may, at the option of Purchaser, be terminated, and Purchaser shall receive a return of the Deposit and the Prepayment by delivering written notice of termination to Seller within ten (10) days after receipt of Seller’s notice.”
9. The eighth sentence of Paragraph 9 of the Agreement is hereby amended to read as follows: “If Purchaser elects to terminate this Agreement pursuant to the preceding sentence, this Agreement shall be terminated, the Deposit (less $25,000.00 which shall be paid to Seller) and the Prepayment shall be returned to Purchaser, and neither Purchaser nor Seller shall have any further rights or obligations hereunder, except for such failures the survival of those provisions expressly provided for herein.”
10. Pursuant to be so true and correct (without giving effect to any qualification as to materiality Paragraph 10(c) of the Agreement, on or Material Adverse Effect contained therein) as would not havebefore November 21, individually 2005, Purchaser notified Seller in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all writing of its obligations hereunder theretofore to be performed Title Objections. Within five (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x5) the Company or (y) the Company business days after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation Seller’s receipt of Purchaser’s notice of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements Title Objections, Seller informed Purchaser which of the Investor shall be true Title Objections it intended to cure or remove prior to Closing, and correct as which Title Objections that it was unable or unwilling to cure. Pursuant to Paragraph 10(c) Purchaser would have five (5) business days after receipt (or deemed receipt) of Seller’s notice of its intentions to cure or not to cure within which to terminate the Agreement and receive a return of the date of this Agreement and the date Deposit. Seller hereby agrees to extend such five (5) business day period (which would, pursuant to Paragraph 10(c) of the Closing (except those representations and warranties that by their terms speak specifically as Agreement, expire on December 1, 2005), until 5:00 p.m. Central Time on the earlier of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require such date that is three (3) business days after receipt by Purchaser of the Investor or any of its affiliates revised survey and the revised title commitment to file a prior notice under the Change in Bank Control Actbe delivered to Purchaser by Seller, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require December 12, 2005; and Purchaser shall have until 5:00 p.m. Central Time on such date to terminate the Investor or any of its affiliates to become Agreement and receive a bank holding company; or (iii) cause the Investor, together with any other person whose securities return of the Company would be aggregated with Deposit and the Investor’s securities Prepayment. In the event Purchaser does not terminate the Agreement, those Title Objections that Seller has informed Purchaser that it is unwilling or unable to cure shall become Permitted Exceptions.
11. Paragraph 13 of the Company for purposes of any bank regulation or law, Agreement is hereby amended and restated in its entirety to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (read as defined in the Branch Purchase Agreement), shall have been satisfied or waived.follows:
Appears in 1 contract
Samples: Purchase and Sale Agreement (NTS Realty Holdings Lp)
Conditions. The undertaking of the Purchaser to purchase the Purchase Shares in accordance with Article 2 is subject to all of the following conditions being met; whereby conditions (a), (b), (c) and (g) (except regarding Article 11(b)) may be waived by the Purchaser without the consent of the Sellers, condition (d) may be waived by the Party affected by such judgment, injunction, other authoritative measure or action, conditions (e) and (f) may be waived only by the consent of the Purchaser and of the Sellers (represented for such purposes by the Agents) and condition (g) (only regarding Article 11(b)) may be waived by the Sellers (represented for such purposes by the Agents) without the consent of the Purchaser:
(a) The obligation Holders of Shares shall have acceded to this Agreement in the capacity of Sellers in accordance with Article 2.3
(a) to the extent necessary so that the number of Purchase Shares exceeds 80% of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase AgreementOutstanding Shares.
(b) The obligation Between the Signing Date and the Closing Date, the business of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor Companies shall have performed all been carried out in the ordinary course of its obligations hereunder theretofore to be performed.business in accordance with Article 6.1.1. Colgate / GABA Share Purchase Agreement
(c) The obligation of each of Between the Investor Signing Date and the Company to consummate (including) the Closing Date, there shall have been or be no Material Adverse Effect.
(d) The Closing shall not have been prohibited by a judgment or injunction or other authoritative measure, and there shall be subject to the following additional conditions:
(1) no provision action pending or threatened in writing of any applicable law person other than the Sellers or regulation the Purchaser or their respective affiliates which is reasonably likely to be successful and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not which (i) require either seeks to prohibit or materially interfere with this Agreement or the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActClosing, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii), if it were successful, would result in a Material Adverse Effect after the Closing.
(e) require All the Investor necessary authorizations shall have been obtained and/or the competent authorities, with regard to competition issues, shall have put an end to any waiting period, pursuant to the applicable laws on merger control, or said waiting periods shall have expired. For the avoidance of doubt, any of its affiliates to become authorizations not prohibiting the transaction contemplated under this Agreement as a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively whole shall be deemed to ownbe a valid authorization under this Article irrespective of the terms and conditions (BEDINGUNGEN UND AUFLAGEN) of such authorization. Notwithstanding anything else in this Agreement, control or the Purchaser shall have the power right to vote securities terminate this Agreement if the Purchaser, as a consequence of this transaction, has an obligation to divest or terminate the business relating to the production and/or distribution of a major toothpaste brand in Germany as defined in SCHEDULE 7.1.1.
(f) The shareholders of GABA Holding which are not Initial Sellers shall have been given the opportunity in accordance with Article 2.3(a) to accede to this Agreement.
(assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other personsg) would represent more than 9.9% of any class of voting securities There shall be no breach of the Company outstanding on the date Representations and Warranties contained in Articles 8.1 (Corporate Existence and Capitalization of the Closing Companies), 8.3 (after giving effect Purchase Shares), 8.4 (Authority Relative to this Agreement) and 11(b) regarding authority relative to this Agreement, and no other breach of Representations and Warranties which has a Material Adverse Effect, and the purchase of the Investor Shares contemplated hereby); and
(3) the conditions Sellers shall have complied with their obligations set forth in Section 10 of the Branch Purchase AgreementArticle 6.1.3 (Exclusivity) and, in all material respects, with their other than the condition obligations set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedArticle 6.1.
Appears in 1 contract
Conditions. (a) The obligation respective obligations of each Party to effect the Investor to consummate the Closing Exchange shall be subject to the condition that satisfaction at or prior to the Closing of the following conditions:
(i) The Exchange and the Merger Agreement shall have been approved by holders of a majority of the outstanding Class A Stock at the Stockholders Meeting, and the Merger shall have been consummated;
(ii) The waiting periods (and any extensions thereof) applicable to the Reorganization under the HSR Act shall have been terminated or shall have expired;
(iii) The FCC Approval shall have been obtained;
(iv) All filings required to be made prior to the Closing by any Party or any of its respective subsidiaries with, and all consents, approvals and authorizations required to be obtained prior to the Closing by any Party or any of its respective subsidiaries from, any Governmental Entity in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been made or obtained, except where the failure to obtain such consents, approvals and authorizations would not cause a Material Adverse Effect;
(v) No statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any Governmental Entity and no other legal restraint or prohibition shall be in effect which prohibits, restrains or enjoins the consummation of the Exchange or the Merger; and
(vi) At least 91.25% of the total outstanding principal amount of the Notes are tendered for exchange at the Closing by the Consenting Noteholders pursuant to Section 2.1.
(b) The obligations of the Consenting Noteholders to effect the Exchange shall be subject to the satisfaction at or prior to the Closing of the following additional conditions:
(i) The representations and warranties of Holdings, Wireless and other statements of the Company Investco contained in this Agreement shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect regard to any qualification as to materiality or Material Adverse Effect qualifier contained therein) ), on and as of the Closing as if made at and as of such date, except where the failure of such representations and warranties to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; the condition that the Company ;
(ii) Each of Holdings, Wireless and Investco shall have performed or complied in all material respects with all of its obligations hereunder theretofore required by this Agreement to be performed or complied with by it at or prior to the Closing;
(without giving effect iii) Each of J.P. Morgan Capital, L.P. and Sixty Wall Xxxxxx Xxxd, L.P. shall have converted all their shares of Class B Stock into shares of Class A Stock prior to the record date for the Stockholders Meeting and shall have entered into the Voting and Lock-Up Agreement;
(iv) The Consenting Noteholders shall have received (or will receive at the Closing) payment in cash of all interest accrued through the Closing in respect of the Notes held by them and tendered in the Exchange; and
(v) Since September 30, 2006, there shall not have been any qualification as change, circumstance or event which, individually or in the aggregate, has had or would reasonably be expected to materiality or have a Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedEffect.
(c) The obligation obligations of each of Holdings, Wireless and Investco to effect the Investor and the Company to consummate the Closing Exchange shall be subject to the satisfaction at or prior to the Closing of the following additional conditions:
(1i) no provision The representations and warranties of the Consenting Noteholders contained in this Agreement shall be true and correct (without regard to any applicable law materiality qualifier contained therein), on and as of the Closing as if made at and as of such date, except where the failure of such representations and warranties to be true and correct would not reasonably be expected to have, individually or regulation and no judgmentin the aggregate, injunction, order or decree shall prohibit a material adverse effect on the ability of the Consenting Noteholders to consummate the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharesby this Agreement;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor The Consenting Noteholders shall have performed or any of its affiliates complied in all material respects with all obligations required by this Agreement to become a bank holding company; be performed or (iii) cause the Investor, together complied with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation by it at or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect prior to the purchase of the Investor Shares contemplated hereby)Closing; and
(3iii) Supplemental indentures including the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Amendments shall have been satisfied or waivedvalidly executed and delivered by Wireless and the trustee under the indentures governing the Notes.
Appears in 1 contract
Samples: Exchange Agreement (Pardus Capital Management L.P.)
Conditions. (a) 5.01 Conditions to Each Party's Obligations to Effect the Transactions Contemplated Hereby. The obligation respective obligations of each party hereto to effect the Investor to consummate the Closing transactions contemplated hereby shall be subject to the condition that fulfillment at or prior to the Closing of each of the following conditions:
(a) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority, nor shall any action or proceeding brought by any governmental authority or agency, be pending, which (i) prevents, restricts or delays or seeks to prevent, restrict or delay the consummation of the transactions contemplated by this Agreement or (ii) seeks a material amount of monetary damages in connection with the consummation of the transactions contemplated by this Agreement.
(b) Xxxxxx and Buyer shall have entered into as of the Closing Date the agreement referred to in Section 7.01 and otherwise performed their respective obligations under Article VII.
5.02 Conditions to the obligations of Sellers to Effect the Transactions Contemplated Hereby. The obligations of Sellers to effect the transactions contemplated hereby shall be further subject to the fulfillment at or prior to the Closing of each of the following conditions, any one or more of which may be waived in whole or in part by Sellers in writing:
(a) Buyer shall have performed and complied in all material respects with all agreements, obligations, conditions and covenants contained in this Agreement required to be performed and complied with by it at or prior to the Closing and all representations and warranties and other statements of the Company Buyer contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and the date as of the Closing (except those representations Date, and warranties Sellers shall have received certificates to that effect signed by their terms speak specifically as the President or any Vice President of Buyer together with such other documents, instruments and writings required to be delivered by Buyer at or prior to the date of Closing pursuant to this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually otherwise reasonably required by Buyer in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementconnection herewith.
(b) The obligation of the Company Sellers shall have received an opinion from counsel to consummate Buyer, dated the Closing shall be subject Date, to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedeffect set forth in Exhibit A hereto.
(c) The obligation of each Buyer shall have delivered to Sellers a copy of the Investor Certificate of Incorporation of Buyer, including all amendments thereto, certified by the Secretary of State of the State of Delaware and (ii) a certificate from the Company Secretary of the State of Delaware to the effect that Buyer is in good standing in such State.
(d) No actions or proceedings which have a material likelihood of success shall have been instituted or, to the knowledge of Buyer, threatened by any governmental body or authority to restrain or prohibit any of the transactions contemplated hereby.
(e) All material consents, waivers, authorizations and approvals, if any, necessary to permit Sellers to consummate the Closing transactions contemplated by this Agreement shall be subject to the following additional conditions:have been received.
(1f) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit All proceedings to be taken in connection with the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares this Agreement and all documents incident thereto shall not (i) require the Investor or any of its affiliates be reasonably satisfactory in form and substance to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor Sellers and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedtheir counsel.
Appears in 1 contract
Samples: Stock Purchase Agreement (Data Transmission Network Corp)
Conditions. (a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and Initial Purchasers to purchase the Company to consummate the Closing shall be Notes under this Agreement are subject to the performance by each of the Issuers and the Guarantors of its respective covenants and obligations hereunder and the satisfaction of each of the following additional conditions:
(1a) no provision All the representations and warranties of the Company and the Subsidiaries contained in this Agreement and in each of the Documents shall be true and correct in all material respects as of the date hereof and at the Closing Date, provided, however, that such representations and warranties that are already qualified by either materiality or Material Adverse Effect shall be true and correct in all respects. On or prior to the Closing Date, the Issuers, the Guarantors and each other party to the Documents (other than the Initial Purchasers) shall have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so satisfy would not, individually or in the aggregate, have a Material Adverse Effect).
(b) No injunction, restraining order or order of any applicable law nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or regulation materially interfere with the consummation of the Transactions; and no judgment, injunction, stop order suspending the qualification or decree shall prohibit the transactions contemplated hereby or prohibit the Investor exemption from owning or voting qualification of any of the Investor Shares;Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced, pending or, to the knowledge of the Issuers or the Guarantors after due inquiry, threatened or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Transactions. No Proceeding shall be pending or, to the knowledge of the Issuers or the Guarantors after due inquiry, threatened other than Proceedings that (A) if adversely determined would, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would, individually or in the aggregate, have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Time of Sale Document (exclusive of any amendment or supplement thereto) there shall not have been any Material Adverse Change which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offer, sale or delivery of the Notes on the terms and in the manner contemplated by this Agreement, the Time of Sale Document and the Final Offering Memorandum.
(e) On or after the date hereof, there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of any of the Company, the Subsidiaries or any securities or indebtedness of any of the Company or the Subsidiaries (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Act and (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of any of the Company, the Subsidiaries or Parent or any securities or indebtedness of any of the Company, the Subsidiaries or Parent by any such rating organization.
(f) The Initial Purchasers shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (A) the chief executive officer of the Company and (B) the principal financial or accounting officer of each of the Issuers and the Guarantors, on behalf of the Issuers and the Guarantors, to the effect that (1) the representations and warranties set forth in Section 4, in each of the Documents and the Perfection Certificate are true and correct with the same force and effect as though expressly made at and as of the Closing Date, (2) the purchase by Issuers and the Investor of Guarantors have performed and complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Investor Shares shall not Closing Date, (i3) require at the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActClosing Date, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on since the date of the Closing most recent financial statements in the Time of Sale Document and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after giving effect the date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (4) since the date of the most recent financial statements in the Time of Sale Document and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), other than as described in the Time of Sale Document and the Final Offering Memorandum or contemplated hereby, none of the Company or the Subsidiaries has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the purchase Company and the Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations of the Investor Shares contemplated herebyCompany and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of any of the Company or the Subsidiaries that is material to the business, condition (financial or otherwise) or results of operations of the Company and the Subsidiaries, taken as a whole, and (5) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the chief financial officer of the Company, in the form of Exhibit A hereto;
(iii) a certificate, dated the Closing Date, executed by the secretary of each of the Issuers and the Guarantors, certifying such matters as the Initial Purchasers may reasonably request.
(iv) the Perfection Certificate, dated the Closing Date, executed by an officer of each of the Issuers and the Guarantors substantially in the form previously provided to counsel for the Issuers.
(v) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the each of the Issuers and the Guarantors, substantially in the form previously approved by the Initial Purchasers or their counsel.
(vi) the opinion of Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel to the Issuers, dated the Closing Date and addressed to the Initial Purchasers, in substantially the form of Exhibit B hereto.
(vii) the opinion of each of the counsel to the Issuers listed on Schedule IV hereto, dated the Closing Date and addressed to the Initial Purchasers, substantially in the form of Exhibit C hereto.
(viii) the opinion of Proskauer Rose LLP, counsel to the Initial Purchasers, dated the Closing Date and addressed to the Initial Purchasers, in form satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(g) The Initial Purchasers shall have received from Ernst & Young LLP, independent auditors, with respect to the Company (i) a customary comfort letter, dated the date hereof, in the form of Exhibit D hereto, with respect to the financial statements and certain financial information contained in the Time of Sale Document, and (ii) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and their counsel, to the effect that Xxxxx & Young LLP reaffirms the statements made in its letter furnished pursuant to clause (i) with respect to the financial statements and certain financial information contained in the Time of Sale Document and the Final Offering Memorandum.
(h) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP, independent auditors, with respect to the Company (i) a customary comfort letter, dated the date hereof, in the form of Exhibit E hereto and substance reasonably satisfactory to the Initial Purchasers and their counsel, with respect to the financial statements and certain financial information contained in the Time of Sale Document, and (ii) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and their counsel, to the effect that Pricewaterhouse Coopers LLP reaffirms the statements made in its letter furnished pursuant to clause (i) with respect to the financial statements and certain financial information contained in the Time of Sale Document and the Final Offering Memorandum.
(i) Each of the Documents shall have been executed and delivered by all parties thereto.
(j) The Initial Purchasers shall have received copies of all opinions, certificates, letters and other documents delivered under the Documents or in connection with the Transactions.
(k) The terms of each Document shall conform in all material respects to the description thereof in the Time of Sale Document and the Final Offering Memorandum.
(l) The Collateral Agent shall have received (with copies for the Initial Purchasers) on the Closing Date:
(i) appropriately completed copies of Uniform Commercial Code (“UCC”) financing statements naming the Issuers and each Guarantor as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Collateral Agreements;
(ii) appropriately completed copies of UCC Form UCC 3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any Collateral Agreement previously granted by any Person; and
(3iii) such other approvals, opinions, or documents as the Collateral Agent or its counsel may reasonably request in form and substance reasonably satisfactory to the Collateral Agent.
(m) The Collateral Agent and its counsel shall be satisfied that (i) the conditions set forth in Section 10 Lien granted to the Collateral Agent, for the benefit of the Branch Purchase Agreement, Secured Parties in the collateral described above is of the priority described in the Time of Sale Document and the Final Offering Memorandum; and (ii) no Lien exists on any of the collateral described above other than the condition set forth Lien created in Section 10.3(e) favor of the Branch Purchase Agreement with respect Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement, in each case subject to the Company’s acceptance of Permitted Liens;
(n) All UCC financing statements or other similar financing statements and UCC Form UCC-3 termination statements required pursuant to Sections 7(l)(i) and 7(l)(ii) (collectively, the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), “UCC Statements”) shall have been satisfied delivered to CT Corporation System or waivedanother similar filing service company acceptable to the Collateral Agent.
(o) The Initial Purchasers shall have received substantially contemporaneously with the Closing a copy of the receipt of a payoff letter from each of the institutions listed on Schedule V hereto.
Appears in 1 contract
Conditions. 5.1 The obligations of Purchaser to consummate the transaction contemplated hereby are subject to the following conditions which, if not fulfilled by Closing or as otherwise provided herein, shall entitle Purchaser, at its option, to terminate the Agreement:
(a) The obligation transactions contemplated under this Agreement to be effected on the Closing Date shall not be restrained or prohibited by any injunction or order or judgment rendered by any court or other governmental agency of competent jurisdiction because of the Investor bankruptcy of Seller and no proceeding shall have been instituted and be pending in which any creditor of Seller or any other person seeks to consummate the Closing shall be subject restrain such transactions or otherwise to the condition that all representations and warranties and other statements attach any of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties Property, provided that by their terms speak specifically as of the date of this Agreement any such proceeding or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions action contemplated by this Section 5.1(a) shall not be brought by, through or under the Branch Purchase Agreement.Purchaser;
(b) The obligation No change shall have occurred, without Purchaser’s written consent, in the state of title matters disclosed in the Title Commitment or the survey and no material and adverse change shall have occurred to any of the Company Property; provided, Seller shall have the option to consummate cure any such changes to Purchaser’s satisfaction prior to the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.Date;
(c) The obligation of each of the Investor and the Company Seller has timely complied with its obligations hereunder (including all obligations to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharesperformed at Closing);
(2d) On the purchase Closing Date, all warranties and representations made by Seller herein are and remain true, complete, and accurate in all material respects;
(e) On the Investor of Closing Date, title to the Investor Shares Property shall not be conveyed to Purchaser subject only to the Permitted Exceptions;
(f) On the Closing Date, (i) require the Investor or any of its affiliates to file a prior notice under Property shall be in the Change same condition that it is in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities as of the Company would be aggregated with the Investor’s securities end of the Company for purposes of any bank regulation or lawInspection Period, to collectively be deemed to ownreasonable wear and tear excepted, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.free from tenants and occupants;
Appears in 1 contract
Conditions. (a) The obligation of the Investor Seller to consummate the Acquisition on the Closing shall be Date is subject to the condition that satisfaction of the following conditions (any or all of which may be waived by Seller, at the sole option of Seller, in whole or in part to the extent permitted by applicable law):
(i) each of the representations and warranties and other statements of the Company Buyer contained herein shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as though the same had been made on and as of the Closing Date;
(ii) Buyer shall have performed and complied, in all material respects, with the covenants and provisions of this Agreement required to be performed or complied with by it between the date hereof and the Closing Date;
(iii) Seller shall have received the opinions of counsel for Buyer, dated the Closing Date, substantially in the forms of EXHIBITS H-1 AND H-2 hereto;
(iv) Seller shall have received a certificate to the effect set forth in clauses (i) and (ii) above, dated the Closing Date and signed by a duly authorized officer of Buyer;
(v) Seller shall have received a certificate of the Secretary of Buyer, dated the Closing Date, setting forth resolutions of the Board of Directors of Buyer authorizing the execution and delivery of this Agreement and each document and instrument required to be executed and delivered by Buyer hereunder and the consummation of the transactions contemplated hereby and thereby, and certifying that such resolutions were duly adopted and have not been rescinded or amended as of the Closing Date;
(A) no Legal Proceeding shall have been instituted against Seller seeking to restrain or prohibit or to obtain damages with respect to the consummation of the transactions contemplated by this Agreement and (B) there shall not be in effect any Order of a Government Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement;
(vii) Buyer shall have entered into an employment agreement with Shareholder in accordance with Section 6.4;
(viii) since the date of this Agreement Agreement, no event or circumstance shall have occurred that has had, or is reasonably likely to have, a material adverse effect on the business, assets, properties, liabilities, financial condition or results of operations of Buyer and its subsidiaries taken as a whole (the date parties hereto acknowledge and agree that if the condition to Buyer's obligation to consummate the Acquisition set forth in Section 7.1(vi) has not been satisfied as of the Closing (except those representations Date and warranties that by their terms speak specifically as of Buyer elects to waive such condition and consummate the date of this Agreement or some other date shall be true and correct as Acquisition, the failure of such date), except for such failures condition to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually satisfied shall in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively event be deemed to ownhave, control or have the power be reasonably likely to vote securities which (assuminghave, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding a material adverse effect on the date business, assets, properties, liabilities, financial condition or results of the Closing (after giving effect to the purchase operations of the Investor Shares contemplated herebyBuyer and its subsidiaries taken as a whole); and
(3ix) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Buyer shall have been satisfied or waivedexecuted and delivered to Seller (A) all documents to be delivered at the Closing in accordance with the terms of this Agreement and (B) such other documents and instruments as Seller may reasonably request and which Buyer can obtain with reasonable commercial efforts in order to consummate the transactions contemplated by this Agreement.
Appears in 1 contract
Conditions. (a) The obligation obligations of the Investor Parties to consummate consummate, or cause to be consummated, the Closing shall be transactions contemplated by this Agreement are subject to the satisfaction, on or before the Closing, of each of the following conditions, unless otherwise waived (if permitted by applicable law) in writing by all of the Parties:
(i) no applicable governmental authority shall have enacted, issued, promulgated or entered any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the transactions contemplated hereby (including the Equity Investors’ capital call for purposes of their funding the Capital Contribution pursuant to this Agreement) illegal or otherwise restraining or prohibiting consummation of the transactions contemplated hereby (including the Equity Investors’ capital call for purposes of their funding the Capital Contribution pursuant to this Agreement); provided, however, that the Equity Investors agree to use commercially reasonable efforts to obtain all approvals from applicable governmental authorities necessary to enable the Equity Investors to fund the Capital Contribution as and when required by this Agreement, and if the Equity Investors fail to use such commercially reasonable efforts, the Equity Investors shall not be permitted to rely on the condition that in this Section 2.4(a)(i) as a basis for failing to fund the Capital Contribution and consummate the Closing;
(ii) the Senior Lender Waiver shall have been executed and delivered by the Company and the other necessary parties to the Senior Credit Agreement and shall be in full force and effect, and a copy of the Senior Lender Waiver, as so executed and delivered, shall have been delivered to the Equity Investors; and
(iii) the Junior Lender Waiver shall have been executed and delivered by the Company and the other necessary parties to the Junior Credit Agreement and shall be in full force and effect, and a copy of the Junior Lender Waiver, as so executed and delivered, shall have been delivered to the Equity Investors; and
(iv) the Company shall have adopted and filed the Amended Charter (for the avoidance of doubt, in a form mutually agreed with the Equity Investors) with the Secretary of State of the State of Delaware on or prior to the Closing, which shall continue to be in full force and effect as of the Closing.
(b) The obligations of each Equity Investor to consummate, or cause to be consummated, the transactions contemplated by this Agreement are subject to the satisfaction, on or before the Closing, of each of the following conditions, unless otherwise waived (if permitted by applicable law) in writing by such Equity Investor:
(i) all representations and warranties and other statements of the Company contained in Annex 3.1 to this Agreement shall be true and correct in all material respects at and as of the date of this Agreement and the date of the Closing (except those other than representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification are qualified as to materiality or Material Adverse Effect contained therein) (as would not havedefined herein), individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all which representations and warranties and other statements of the Investor shall be true and correct in all respects), except, with respect to the representations and warranties set forth in clauses (e) through (i) of Annex 3.1 to this Agreement, as set forth in the Disclosure Schedule and any supplement thereto delivered by the Company to the Equity Investors pursuant to Section 4.5, and consummation of the date Closing shall constitute a reaffirmation by the Company of each of the representations, warranties, covenants and agreements of the Company contained in this Agreement and the date as of the Closing (except those representations as qualified by the Disclosure Schedule); and
(ii) the Company shall have performed, satisfied and warranties that complied in all material respects with all covenants, agreements and conditions required by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed, satisfied or complied with by them at or prior to the Closing.
(c) The obligation obligations of the Company to consummate, or cause to be consummated, the transactions contemplated by this Agreement are subject to the satisfaction, on or before the Closing, of each of the Investor following conditions, unless otherwise waived (if permitted by applicable law) in writing by the Company:
(i) all representations and warranties of the Company Equity Investors contained in Annex 3.2 to consummate this Agreement are true and correct in all material respects at and as of the Closing, and consummation of the Closing shall be subject to the following additional conditions:
(1) no provision constitute a reaffirmation by each Equity Investor of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any each of the representations, warranties, covenants and agreements of such Equity Investor Shares;
(2) the purchase by the Investor contained in this Agreement as of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Closing; and
(3ii) the Equity Investors shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions set forth in Section 10 of the Branch Purchase Agreementrequired by this Agreement to be performed, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement satisfied or complied with respect by them at or prior to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedClosing.
Appears in 1 contract
Samples: Equity Contribution Agreement (LIV Capital Acquisition Corp.)
Conditions. 6.1 Conditions to the Obligations of Navidec. The obligations of Navidec to consummate the transactions contemplated by this Agreement are subject to the satisfaction, at or before the consummation of the transactions contemplated hereby of each of the following conditions:
(a) The obligation No action shall have been taken, and no statute, rule, regulation or order shall have been promulgated, enacted, entered, enforced or deemed applicable to the transactions contemplated hereby by any federal, state or foreign government or governmental authority or by any court, domestic or foreign, including entry of a preliminary or permanent injunction, which would (i) make the transactions contemplated hereby illegal, (ii) adversely affect BPZ or BPZ's right to own its assets or operate its business, or (iii) if the transactions contemplated hereby are consummated, subject any officer, director, or employee of Navidec to criminal penalties or to civil liabilities not adequately covered by insurance or enforceable indemnification maintained by Navidec;
(b) No action or proceeding before any court or governmental authority, domestic or foreign, by any government or governmental authority or by any other person, domestic or foreign, shall be threatened, instituted or pending which would (i) reasonably be expected to result in any way of the Investor consequences referred to consummate in clauses (i) through (iii) of paragraph (a) above, or (ii) relate to any person asserting a claim that (A) he, she or it is the Closing holder or the beneficial owner of, or has the right to acquire or to obtain beneficial ownership of, any stock of, or any other voting, equity, or ownership interest in, BPZ, or (B) is entitled to all or any portion of the Navidec Common Stock;
(c) BPZ shall be subject to have complied in all material respects with the condition that agreements and covenants herein, and all representations and warranties and other statements of the Company BPZ herein shall be true and correct in all material respects at the time of Closing as if made at that time, except to the extent they expressly relate to an earlier date, and Navidec shall have received a certificate to that effect to the best of the knowledge of BPZ, signed by the President of BPZ;
(d) BPZ shall have acquired title to or licenses or leases related to the right to drill for oil and gas on the properties listed on Schedule 6.1(d). Furthermore, Navidec shall receive comfort that the borrowed funds utilized to acquire the rights described in this Section 6.1(d) are issued through facilities that at Closing are not in default and all covenants are at that date of this Agreement in good standing;
(e) Navidec and BPZ shall together make arrangements for Navidec to receive debt or equity financing in one or more transactions to close at or prior to Closing, in an amount not less than $3 million, upon such terms and conditions as are acceptable to Navidec and BPZ (the date "Financing"). The proceeds of the Financing will be held in escrow by Navidec and will be released immediately after Closing to be used by Navidec for working capital and general corporate purposes.
(except those f) A Good Standing Certificate of BPZ, dated no more than 10 days prior to the Closing Date, from the Secretary of State of Texas;
(g) The shareholders of BPZ shall have delivered to Navidec, one or more Certificates representing the BPZ Common Stock, together with a duly executed and completed letter of transmittal and all other documents and materials reasonably required by Navidec to be delivered in connection therewith; and
6.2 Conditions to the Obligations of BPZ. The obligations of BPZ to consummate the transactions contemplated hereby are subject to the satisfaction or waiver, at or before the consummation of the transactions contemplated hereby, of each of the following conditions:
(a) No action shall have been taken, and no statute, rule, regulation or order shall have been promulgated, enacted, entered, enforced or deemed applicable to the transactions contemplated hereby by any federal, state or foreign government or governmental authority or by any court, domestic or foreign, including the entry of a preliminary or permanent injunction, which would (i) make the transactions contemplated hereby illegal, or (ii) if the transactions contemplated hereby are consummated, subject any officer, director or employee of BPZ to criminal penalties or to civil liabilities not adequately covered by insurance or enforceable indemnification maintained by Navidec;
(b) No action or proceeding before any court or governmental authority, domestic or foreign, by any government or governmental authority or by any other person, domestic or foreign, shall be threatened, instituted or pending which would reasonably be expected to result in any of the consequences referred to in clauses (i) or (ii) of paragraph (a) above;
(c) Navidec shall have complied in all material respects with its agreements and covenants herein, and all representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date Navidec and Merger Corp. herein shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all at the time of its obligations hereunder theretofore Closing as if made at that time, except to be performed (without giving effect the extent they expressly relate to any qualification as to materiality or Material Adverse Effect contained therein); an earlier date, and the condition that since the date hereof no Material Adverse Effect BPZ shall have occurred and be continuing with respect received a certificate to either (x) the Company or (y) the Company after giving that effect to the transactions contemplated best of the knowledge of Navidec, signed by the Branch Purchase AgreementPresident of Navidec;
(d) The financing for a minimum of $3 million as described in Section 6.1(e) shall have been concluded.
(be) The obligation Good Standing Certificates of Navidec and Merger Corp., dated no more than 10 days prior to the Closing Date, from the Secretary of State of Colorado;
(f) All necessary third party and governmental consents and approvals required for transactions contemplated hereby shall have been obtained;
(g) Navidec shall have delivered to BPZ copies of the Company to consummate the Closing shall be subject to the condition that resignations of all representations and warranties and other statements of the Investor shall be true directors of Navidec and correct Merger Corp. as of the date Closing Date, with the exception of this Agreement and the date Xx. Xxxx McKowen, which resignations shall be dated as of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor SharesDate;
(2h) Navidec shall have delivered to BPZ copies of the purchase Leak Out Agreements executed by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding individuals listed on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Schedule 4.4; and
(3i) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Navidec shall have been satisfied delivered to BPZ a certificate or waivedcertificates representing the BPZ Converted Shares.
Appears in 1 contract
Samples: Merger Agreement (Navidec Financial Services, Inc.)
Conditions. 6.1 Conditions to the Obligations of Navidec. The obligations of Navidec to consummate the transactions contemplated by this Agreement are subject to the satisfaction, at or before the consummation of the transactions contemplated hereby of each of the following conditions:
(a) The obligation No action shall have been taken, and no statute, rule, regulation or order shall have been promulgated, enacted, entered, enforced or deemed applicable to the transactions contemplated hereby by any federal, state or foreign government or governmental authority or by any court, domestic or foreign, including entry of a preliminary or permanent injunction, which would (i) make the transactions contemplated hereby illegal, (ii) adversely affect BPZ or BPZ's right to own its assets or operate its business, or (iii) if the transactions contemplated hereby are consummated, subject any officer, director, or employee of Navidec to criminal penalties or to civil liabilities not adequately covered by insurance or enforceable indemnification maintained by Navidec;
(b) No action or proceeding before any court or governmental authority, domestic or foreign, by any government or governmental authority or by any other person, domestic or foreign, shall be threatened, instituted or pending which would (i) reasonably be expected to result in any way of the Investor consequences referred to consummate in clauses (i) through (iii) of paragraph (a) above, or (ii) relate to any person asserting a claim that (A) he, she or it is the Closing holder or the beneficial owner of, or has the right to acquire or to obtain beneficial ownership of, any stock of, or any other voting, equity, or ownership interest in, BPZ, or (B) is entitled to all or any portion of the Navidec Common Stock;
(c) BPZ shall be subject to have complied in all material respects with the condition that agreements and covenants herein, and all representations and warranties and other statements of the Company BPZ herein shall be true and correct in all material respects at the time of Closing as if made at that time, except to the extent they expressly relate to an earlier date, and Navidec shall have received a certificate to that effect to the best of the knowledge of BPZ, signed by the President of BPZ;
(d) BPZ shall have acquired title to or licenses or leases related to the right to drill for oil and gas on the properties listed on Schedule 6.1(d). Furthermore, Navidec shall receive comfort that the borrowed funds utilized to acquire the rights described in this Section 6.1(d) are issued through facilities that at Closing are not in default and all covenants are at that date of this Agreement in good standing;
(e) Navidec and BPZ shall together make arrangements for Navidec to receive debt or equity financing in one or more transactions to close at or prior to Closing, in an amount not less than $3 million, upon such terms and conditions as are acceptable to Navidec and BPZ (the date "Financing"). The proceeds of the Financing will be held in escrow by Navidec and will be released immediately after Closing to be used by Navidec for working capital and general corporate purposes.
(except those f) A Good Standing Certificate of BPZ, dated no more than 10 days prior to the Closing Date, from the Secretary of State of Texas;
(g) The shareholders of BPZ shall have delivered to Navidec, one or more Certificates representing the BPZ Common Stock, together with a duly executed and completed letter of transmittal and all other documents and materials reasonably required by Navidec to be delivered in connection therewith; and
6.2 Conditions to the Obligations of BPZ. The obligations of BPZ to consummate the transactions contemplated hereby are subject to the satisfaction or waiver, at or before the consummation of the transactions contemplated hereby, of each of the following conditions:
(a) No action shall have been taken, and no statute, rule, regulation or order shall have been promulgated, enacted, entered, enforced or deemed applicable to the transactions contemplated hereby by any federal, state or foreign government or governmental authority or by any court, domestic or foreign, including the entry of a preliminary or permanent injunction, which would (i) make the transactions contemplated hereby illegal, or (ii) if the transactions contemplated hereby are consummated, subject any officer, director or employee of BPZ to criminal penalties or to civil liabilities not adequately covered by insurance or enforceable indemnification maintained by Navidec;
(b) No action or proceeding before any court or governmental authority, domestic or foreign, by any government or governmental authority or by any other person, domestic or foreign, shall be threatened, instituted or pending which would reasonably be expected to result in any of the consequences referred to in clauses (i) or (ii) of paragraph (a) above;
(c) Navidec shall have complied in all material respects with its agreements and covenants herein, and all representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date Navidec and Merger Corp. herein shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all at the time of its obligations hereunder theretofore Closing as if made at that time, except to be performed (without giving effect the extent they expressly relate to any qualification as to materiality or Material Adverse Effect contained therein); an earlier date, and the condition that since the date hereof no Material Adverse Effect BPZ shall have occurred and be continuing with respect received a certificate to either (x) the Company or (y) the Company after giving that effect to the transactions contemplated best of the knowledge of Navidec, signed by the Branch Purchase AgreementPresident of Navidec;
(d) The financing for a minimum of $3 million as described in Section 6.1(e) shall have been concluded.
(be) The obligation Good Standing Certificates of Navidec and Merger Corp., dated no more than 10 days prior to the Closing Date, from the Secretary of State of Colorado;
(f) All necessary third party and governmental consents and approvals required for transactions contemplated hereby shall have been obtained;
(g) Navidec shall have delivered to BPZ copies of the Company to consummate the Closing shall be subject to the condition that resignations of all representations and warranties and other statements of the Investor shall be true directors of Navidec and correct Merger Corp. as of the date Closing Date, with the exception of this Agreement and the date Xx. Xxxx XxXxxxx, which resignations shall be dated as of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor SharesDate;
(2h) Navidec shall have delivered to BPZ copies of the purchase Leak Out Agreements executed by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding individuals listed on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Schedule 4.4; and
(3i) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Navidec shall have been satisfied delivered to BPZ a certificate or waivedcertificates representing the BPZ Converted Shares.
Appears in 1 contract
Samples: Merger Agreement (Navidec Financial Services, Inc.)
Conditions. (a) The Your obligation of the Investor to consummate the Closing proceed hereunder shall be subject to the condition that all accuracy of and compliance with the representations and warranties and other statements of the Company shall be true herein contained on and correct as of the date of this the Agency Agreement or Terms Agreement and the date Closing Date, to the accuracy of the Closing (except those representations and warranties that statements made by their terms speak specifically as the Company's officers in any certificate given pursuant to the provisions of the date of this such Agency Agreement or some other date shall be true and correct as of such date)Terms Agreement, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that performance by the Company shall have performed in all material respects all of its obligations hereunder theretofore thereunder, and to the following additional terms and conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceedings for that purpose shall have been initiated or, to the knowledge of the Company, threatened, by the Commission, and any request for additional information on the part of the Commission (to be performed (without giving effect to any qualification as to materiality included in the Registration Statement or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect Prospectus or otherwise) shall have occurred and be continuing been complied with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementyour reasonable satisfaction.
(b) The obligation of You shall not have advised the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all Registration Statement or the Prospectus contains an untrue statement of its obligations hereunder theretofore a fact which, in your opinion, is material, or omits to state a fact which, in your opinion, is material and is required to be performedstated therein, or is necessary to make the statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been, on a consolidated basis, any material adverse change in the capital stock, short-term debt or long-term debt of the Company and its subsidiaries, or any material adverse change, or any development involving a prospective material adverse change, in the condition (financial or other), business, net worth or results of operations of the Company and its subsidiaries, taken as a whole, which, in any such case, is in your reasonable judgment, so material and adverse as to make it impractical or inadvisable to offer or deliver the Notes on the terms and in the manner contemplated in the Prospectus.
(d) On the Closing Date, you shall have received the opinion of counsel to the Company, dated the Closing Date, to the effect that:
(i) The obligation Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware; the Company's subsidiaries have been duly incorporated and are existing corporations in good standing under the laws of their respective jurisdictions of incorporation; each of the Company and its subsidiaries has full power and authority (corporate and other) to conduct its business as described in the Registration Statement; and each of the Company and its subsidiaries is duly qualified to do business and is in good standing in each jurisdiction in which it owns or leases any material properties, or in which the conduct of its business requires such qualification, except to the extent that the failure to be so qualified would not have a material adverse effect on the financial condition or results of operations of the Company and its subsidiaries considered as a whole;
(ii) Each of the Indentures has been duly authorized, executed, delivered and qualified under the Trust Indenture Act; the Notes have been duly authorized; each of the Indentures constitutes, and the Notes, when duly executed, authenticated, issued and delivered as contemplated hereby and by the respective Indentures, will constitute, valid and legally binding obligations of the Company in accordance with their terms and the terms of the respective Indentures, subject to the General Qualifications as defined in the Legal Opinion Accord of the American Bar Association Section of Business Law (1991);
(iii) All of the outstanding shares of capital stock of each of the Investor Company's subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision owns all outstanding shares of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any capital stock of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing each significant subsidiary (as defined in Rule 405 under the Branch Purchase AgreementAct) (except as otherwise stated in the Prospectus then in use), shall in each such case subject to no mortgage, pledge, lien, encumbrance, charge or adverse claim;
(iv) The Registration Statement has become effective under the Act and to the best knowledge of such counsel no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been satisfied instituted or, to the knowledge of such counsel, threatened, by the Commission;
(v) The Registration Statement and the Prospectus, and any amendment or waived.supplement thereto, comply as to form in all material respects with the requirements of the Act, the Exchange Act, the Trust Indenture Act and the Rules and Regulations (except that such counsel need express no opinion as to the financial statements and other financial data included therein); and such counsel has no reason to believe that either the Registration Statement or the Prospectus or any amendment or supplement thereto (except as aforesaid) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the statements made in the Prospectus under the headings "Description of Notes" and "Description of Debt Securities", insofar as they purport to summarize provisions of documents specifically referred to therein, fairly present the information called for with respect thereto by the registration statement form;
Appears in 1 contract
Samples: Medium Term Notes Agreement (Associates Corporation of North America)
Conditions. 6.1 Conditions to the Obligations of Navidec. The obligations of Navidec to consummate the transactions contemplated by this Agreement are subject to the satisfaction, at or before the consummation of the transactions contemplated hereby of each of the following conditions:
(a) The obligation No action shall have been taken, and no statute, rule, regulation or order shall have been promulgated, enacted, entered, enforced or deemed applicable to the transactions contemplated hereby by any federal, state or foreign government or governmental authority or by any court, domestic or foreign, including entry of a preliminary or permanent injunction, which would (i) make the transactions contemplated hereby illegal, (ii) adversely affect BPZ or BPZ's right to own its assets or operate its business, or (iii) if the transactions contemplated hereby are consummated, subject any officer, director, or employee of Navidec to criminal penalties or to civil liabilities not adequately covered by insurance or enforceable indemnification maintained by Navidec;
(b) No action or proceeding before any court or governmental authority, domestic or foreign, by any government or governmental authority or by any other person, domestic or foreign, shall be threatened, instituted or pending which would (i) reasonably be expected to result in any way of the Investor consequences referred to consummate in clauses (i) through (iii) of paragraph (a) above, or (ii) relate to any person asserting a claim that (A) he, she or it is the Closing holder or the beneficial owner of, or has the right to acquire or to obtain beneficial ownership of, any stock of, or any other voting, equity, or ownership interest in, BPZ, or (B) is entitled to all or any portion of the Navidec Common Stock;
(c) BPZ shall be subject to have complied in all material respects with the condition that agreements and covenants herein, and all representations and warranties and other statements of the Company BPZ herein shall be true and correct in all material respects at the time of Closing as if made at that time, except to the extent they expressly relate to an earlier date, and Navidec shall have received a certificate to that effect to the best of the knowledge of BPZ, signed by the President of BPZ;
(d) BPZ shall have acquired title to or licenses or leases related to the right to drill for oil and gas on the properties listed on Schedule 6.1(d). Furthermore, Navidec shall receive comfort that the borrowed funds utilized to acquire the rights described in this Section 6.1(d) are issued through facilities that at Closing are not in default and all covenants are at that date of this Agreement in good standing;
(e) Navidec and BPZ shall together make arrangements for Navidec to receive debt or equity financing in one or more transactions to close at or prior to Closing, in an amount not less than $3 million, upon such terms and conditions as are acceptable to Navidec and BPZ (the date "Financing"). The proceeds of the Financing will be held in escrow by Navidec and will be released immediately after Closing to be used by Navidec for working capital and general corporate purposes.
(except those f) A Good Standing Certificate of BPZ, dated no more than 10 days prior to the Closing Date, from the Secretary of State of Texas;
(g) The shareholders of BPZ shall have delivered to Navidec, one or more Certificates representing the BPZ Common Stock, together with a duly executed and completed letter of transmittal and all other documents and materials reasonably required by Navidec to be delivered in connection therewith; and
6.2 Conditions to the Obligations of BPZ. The obligations of BPZ to consummate the transactions contemplated hereby are subject to the satisfaction or waiver, at or before the consummation of the transactions contemplated hereby, of each of the following conditions:
(a) No action shall have been taken, and no statute, rule, regulation or order shall have been promulgated, enacted, entered, enforced or deemed applicable to the transactions contemplated hereby by any federal, state or foreign government or governmental authority or by any court, domestic or foreign, including the entry of a preliminary or permanent injunction, which would (i) make the transactions contemplated hereby illegal, or (ii) if the transactions contemplated hereby are consummated, subject any officer, director or employee of BPZ to criminal penalties or to civil liabilities not adequately covered by insurance or enforceable indemnification maintained by Navidec;
(b) No action or proceeding before any court or governmental authority, domestic or foreign, by any government or governmental authority or by any other person, domestic or foreign, shall be threatened, instituted or pending which would reasonably be expected to result in any of the consequences referred to in clauses (i) or (ii) of paragraph (a) above;
(c) Navidec shall have complied in all material respects with its agreements and covenants herein, and all representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date Navidec and Merger Corp. herein shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all at the time of its obligations hereunder theretofore Closing as if made at that time, except to be performed (without giving effect the extent they expressly relate to any qualification as to materiality or Material Adverse Effect contained therein); an earlier date, and the condition that since the date hereof no Material Adverse Effect BPZ shall have occurred and be continuing with respect received a certificate to either (x) the Company or (y) the Company after giving that effect to the transactions contemplated best of the knowledge of Navidec, signed by the Branch Purchase AgreementPresident of Navidec;
(d) The financing for a minimum of $3 million as described in Section 6.1(e) shall have been concluded.
(be) The obligation Good Standing Certificates of Navidec and Merger Corp., dated no more than 10 days prior to the Closing Date, from the Secretary of State of Colorado;
(f) All necessary third party and governmental consents and approvals required for transactions contemplated hereby shall have been obtained;
(g) Navidec shall have delivered to BPZ copies of the Company to consummate the Closing shall be subject to the condition that resignations of all representations and warranties and other statements of the Investor shall be true directors of Navidec and correct Merger Corp. as of the date Closing Date, with the exception of this Agreement and the date Mr. John McKowen, which resignations xxxxx xx xxxxx as of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor SharesDate;
(2h) Navidec shall have delivered to BPZ copies of the purchase Leak Out Agreements executed by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding individuals listed on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Schedule 4.4; and
(3i) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Navidec shall have been satisfied delivered to BPZ a certificate or waivedcertificates representing the BPZ Converted Shares.
Appears in 1 contract
Samples: Merger Agreement (Navidec Inc)
Conditions. 3.1 The sale and purchase of the Sale Shares is conditional upon:
(a) The obligation the Purchaser having completed legal, business and financial due diligence on LifeMag and the Subcos to its satisfaction and having obtained the Board and/or Shareholders’ approvals on issuing the Consideration Shares herein;
(b) all consents, approvals, authorisations or other orders of all relevant regulatory authorities required for or in connection with the transfer of the Investor to consummate the Closing shall be subject Sale Shares to the condition that Purchaser by the Vendor have been unconditionally obtained and are in full force and effect, and all representations and warranties other actions have been taken by or on behalf of the Vendor to comply with all legal and other statements requirements applicable in Singapore or elsewhere necessary to ensure that the transfer of the Company shall be true Sale Shares is in accordance and correct do not infringe any existing law, regulation or guidelines or the terms of any such consent, approval or authorisation including but not limited to foreign ownership;
(c) the Purchaser and/or the Vendor not having received on or prior to the Completion Date (or such other date as the parties may agree), notice of any directive, injunction or other order, which restrains or prohibits the consummation of the transactions contemplated by the S&P Agreement or there being no action on or prior to the Completion Date (or such other date as the parties may agree), seeking to restrain or prohibit the consummation thereof, or seeking damages in connection therewith, which is pending or any such directive, injunction or other order or action which is threatened;
(d) (if applicable) the delivery by the Vendor to the Purchaser of the Memorandum of Disclosure, in a form reasonably satisfactory to the Purchaser;
(e) the Vendor Warranties and the Purchaser Warranties contained herein not being untrue or misleading at Completion, as if repeated at Completion and at all times between the date of this Agreement and Completion;
(f) the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed Vendor having fulfilled in all material respects all of its their obligations hereunder theretofore under this Agreement required to be performed (without giving effect to any qualification as to materiality fulfilled on or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect prior to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Completion Date; and
(3g) the Purchaser and/or the Vendor having fulfilled in all material respects all of their obligations under this Agreement to be fulfilled on or prior to the Completion Date.
3.2 In the event that the conditions set forth in Section 10 Clause 3.1 are not fulfilled by 31 June 2006 (or any other date as the Purchaser and the Vendor may agree in writing from time to time), this Agreement shall lapse and be of no further effect and no party to this Agreement shall have any claim against the other for costs, damages, compensation or otherwise or liability to the other party, save for (i) any claim by the Purchaser against the Vendor arising from antecedent breach of the Branch Purchase Agreement, other than terms hereof including the condition set forth undertaking contained in Section 10.3(ethis Clause 3.2 and (ii) any claim by the Vendor against the Purchaser arising from antecedent breach of the Branch Purchase terms hereof including the undertaking contained in this Clause 3.2 and (iii) the parties’ rights and obligations of Confidentiality under Clauses 10 and 12 which shall survive notwithstanding the determination of this Agreement with respect pursuant to this Clause 3.2.
3.3 Each party must promptly notify the Company’s acceptance of the proceeds of the Acceptable Financing (as defined other parties if it becomes aware that any condition specified in the Branch Purchase Agreement), shall have been Clause 3.1 is satisfied or waivedbecomes incapable of being satisfied.
Appears in 1 contract
Conditions. (a) The obligation obligations of the Investor Initial Purchaser to consummate purchase the Closing shall be Series A Notes under this Agreement are subject to the condition that all satisfaction or waiver of each of the following conditions:
(i) All the representations and warranties and other statements of each of the Company Issuers in each of the Documents to which it is a party shall be true and correct in all material respects (other than representations and warranties with a materiality qualifier, which shall be true and correct as of the date of this Agreement written) at and the date as of the Closing (except those representations Date after giving effect to the Transactions with the same force and warranties that by their terms speak specifically effect as if made on and as of such date. On or prior to the Closing Date, each of the Issuers and, to the knowledge of the Issuers, each other party to the Documents (other than the Initial Purchaser) shall have performed or complied in all material respects with all of the agreements and satisfied in all material respects all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents.
(ii) The Offering Circular shall have been printed and copies made available to the Initial Purchaser not later than 12:00 noon, New York City time, on the first business day following the date of this Agreement or some other at such later date and time as the Initial Purchaser may approve.
(iii) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or interfere with the consummation of any of the Transactions; and no stop order suspending the qualification or exemption from qualification of any of the Series A Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or be pending or contemplated.
(iv) No Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of any of the Transactions. No Proceeding shall be true and correct as of such date)pending or threatened other than Proceedings that (A) if adversely determined could not, except for such failures to be so true and correct (without giving effect to any qualification as to materiality singly or Material Adverse Effect contained therein) as would not have, individually in the aggregate, adversely affect the issuance or marketabil ity of the Series A Notes, and (B) could not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect; .
(v) Since the condition date as of which information is given in the Offering Circular, there shall not have been any Material Adverse Change.
(vi) The Notes shall have (A) been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the PORTAL market, and (B) received a rating of "B" and "B2" from Standard & Poor's Corporation and Xxxxx'x Investors Services, Inc., respectively.
(vii) As of the Closing Date, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of any securities of either of the Issuers (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of any securities of either of the Issuers by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(viii) The Initial Purchaser shall have received on the Closing Date (A) certificates dated the Closing Date, signed by (1) the Chief Executive Officer, and (2) the principal financial or accounting officer of each of the Issuers, on behalf of such Issuer, confirming the matters set forth in paragraphs (i), (iii), (iv), (v), (vii) and (xiii) of this Section 9(a), (B) a certificate, dated the Closing Date, signed by the (1) Chief Executive Officer and (2) the principal financial or accounting officer of each of the Issuers, on behalf of such Issuer stating that the Company shall have performed industry, statistical and market-related data included in the Offering Circular has been reviewed by such persons and, to the best knowledge of such persons, subject to the risks and limitations described in the Preliminary Offering Circular and the Offering Circular, is true and accurate in all material respects all of its obligations hereunder theretofore and is based on or derived from sources which the Issuers believe to be performed reliable and accurate, which certificate shall be in form and substance satisfactory to counsel for the Initial Purchasers, (without giving effect to any qualification C) a certificate, dated the Closing Date, signed by the Secretary of each of the Issuers, BDI and Xxxx, certifying such matters as to materiality the Initial Purchaser may reasonably request, and (D) a certificate of solvency, dated the Closing Date, signed by the principal financial or Material Adverse Effect contained therein); and accounting officer of the condition that since Company substantially in the date hereof no Material Adverse Effect form previously approved by the Initial Purchaser.
(ix) The Initial Purchaser shall have occurred received:
(A) the opinions (in form and be continuing substance satisfactory to the Initial Purchaser and counsel to the Initial Purchaser) of Xxxxxx Xxxxxxx PLLC, special counsel to the Issuers, dated the Closing Date, in the form of Exhibit A hereto;
(B) the opinions (in form and substance satisfactory to the Initial Purchaser and counsel to the Initial Purchaser) of Xxxxxx & Xxxxxxxxx, special Indiana counsel to the Issuers, dated the Closing Date, in the form of Exhibit B-1 hereto, and Butzel Long, special admiralty counsel to the Issuers, dated the Closing Date, in the form of Exhibit B-2 hereto;
(C) reliance letters from each counsel or special counsel to the Issuers (in form and substance satisfactory to the Initial Purchaser and counsel to the Initial Purchaser), dated the Closing Date, permitting the Initial Purchaser to rely on all other opinions rendered by such counsel in connection with any of the Transactions; and
(D) an opinion, dated the Closing Date, of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, in form and substance reasonably satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(x) The Initial Purchaser shall have received from PricewaterhouseCoopers LLP, independent public accountants, with respect to either the Issuers, (xA) a customary comfort letter, dated the date of the Offering Circular, in form and substance reasonably satisfactory to the Initial Purchaser, with respect to the financial statements and certain financial information contained in the Offering Circular, and (B) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that PricewaterhouseCoopers LLP reaffirms the statements made in its letter furnished pursuant to clause (A), except that the specified date referred to shall be a date not more than five days prior to the Closing Date.
(xi) The Documents shall have been executed and delivered by all parties thereto and the Initial Purchaser shall have received a fully executed original of each Document.
(xii) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Transactions.
(xiii) Each of the Transactions shall have been consummated on terms that conform to the description thereof in the Offering Circular. The terms of each Document shall conform in all material respects to the description thereof in the Offering Circular.
(xiv) The Initial Purchaser shall have received copies of duly executed payoff letters, UCC-3 termination statements, mortgage releases and other collateral releases and terminations, each in form and substance satisfactory to the Initial Purchaser evidencing, as the case may be, (A) the Company or Defeasance, (yB) the Company after giving effect repurchase of the Old Notes pursuant to the transactions contemplated Tender Offer, (C) the termination of each agreement and instrument relating to any indebtedness secured by the Branch Purchase AgreementCollateral and (D) the release of each item of Collateral securing such indebtedness and the termination of all Liens created thereunder, and each such payoff letter, release and termination shall be in full force and effect.
(xv) The Issuers shall have furnished to the Initial Purchaser the Security Documents duly executed by the respective Grantors party thereto, together with:
(A) proper financing statements, each in the form to be filed on the Closing Date under the UCC of all jurisdictions that may be deemed necessary or desirable in order to perfect the Liens created by the Security Documents, covering the Collateral and naming the Collateral Agent as secured party, which financing statements shall be so filed on the Closing Date;
(B) contemplated requests for information, listing all effective financing statements filed as of the date thereof in the jurisdictions referred to in the prior subparagraph that name either of the Issuers, BDI or Xxxx as debtor, together with copies of such financing statements (none of which shall cover the Collateral described in the Security Documents, except to the extent such Collateral secures the obligations under the Old Notes and such Collateral is released in connection herewith and evidence thereof is delivered pursuant to paragraph (xiv) above);
(C) reasonable evidence that all other actions necessary or desirable to perfect and protect the Liens created by the Security Documents have been taken;
(D) the Preferred Ship Mortgage (as defined in the Indenture), duly executed by the Company, together with:
(1) evidence that counterparts of the Preferred Ship Mortgage are in a form to be recorded on the Closing Date with the United States Coast Guard National Vessel Documentation Center, New Orleans, Louisiana Detachment (which counterparts shall be so recorded on the Closing Date), in order to create a valid first preferred mortgage under the Ship Mortgage Act on the Majestic Star Casino Vessel (as defined in the Indenture) in favor of the Collateral Agent and the holders of the Notes and that all filing and recording taxes and fees have been paid;
(2) such evidence that all other action that the Collateral Agent may deem necessary or desirable in order to create a valid first preferred mortgage on the Majestic Star Casino Vessel has been taken; and
(3) such evidence of the insurance required by the terms of the Preferred Ship Mortgage.
(xvi) Counsel to the Initial Purchaser shall have been furnished with such documents as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in this Section 9 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions herein contained.
(b) The obligation of each of the Company Issuers to consummate sell the Closing shall be Series A Notes under this Agreement is subject to the condition that satisfaction or waiver of each of the following conditions:
(i) The Initial Purchaser shall have delivered payment to the Issuers for the Series A Notes pursuant to Sections 2 and 4 of this Agreement and shall have complied with all other obligations and agreements required to be complied with by it hereunder on or prior to the Closing Date.
(ii) All of the representations and warranties and other statements of the Investor Initial Purchaser in this Agreement shall be true and correct in all material respects at and as of the date of this Agreement Closing Date, with the same force and the date of the Closing (except those representations effect as if made on and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(ciii) The obligation No injunction, restraining order or order of each any nature by a Governmental Authority shall have been issued as of the Investor Closing Date that would prevent or interfere with the issuance and sale of the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation Series A Notes; and no judgment, injunction, stop order suspending the qualification or decree shall prohibit the transactions contemplated hereby or prohibit the Investor exemption from owning or voting qualification of any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares Series A Notes in any jurisdiction shall not (i) require the Investor have been issued and no Proceeding for that purpose shall have been commenced or any of its affiliates to file a prior notice under the Change in Bank Control Act, be pending or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date contemplated as of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedDate.
Appears in 1 contract
Conditions. (a) The obligation obligations of Investment Bank to exchange the Investor to consummate Debt Obligations for the Shares at the Closing or an Additional Shares Closing, as the case may be, shall be subject the satisfaction of the following conditions:
(i) Lucent shall have furnished to Investment Bank an opinion of Cravath, Swaine & Moorx, xxted the Closing Date or an Additional Shares Closing Date, as the case may be, to the condition effect as agreed upon between Lucent and Investment Bank;
(ii) No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any Governmental Entity or other legal restraint or prohibition shall be in effect preventing the consummation of the transactions contemplated to occur at the Closing or an Additional Shares Closing, as the case may be; and
(iii) Lucent shall have furnished to Investment Bank a certificate of Lucent, signed by a Vice President or Treasurer of Lucent, dated the Closing Date or an Additional Shares Closing Date, as the case may be, to the effect that all the signers of such certificate have carefully examined this Agreement and that the representations and warranties and other statements of the Company shall be Lucent in this Agreement are true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects on and as of the Closing Date or an Additional Shares Closing Date, as the case may be, with the same effect as if made on the Closing Date or an Additional Shares Closing Date, as the case may be, and Lucent has complied with all of the agreements and satisfied all the conditions on its obligations hereunder theretofore part to be performed or satisfied at or prior to the Closing Date or an Additional Shares Closing Date, as the case may be.
(without giving effect to any qualification iv) The pledge of the Shares under the Guarantee and Collateral Agreement made by Lucent and certain of its Subsidiaries in favor of the Chase Manhattan Bank, as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect Collateral Agent, dated as of February 22, 2001, shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementbeen released.
(b) The obligation obligations of Lucent to exchange the Company to consummate Shares for the Debt Obligations at the Closing or an Additional Shares Closing, as the case may be, shall be subject to the condition that all representations and warranties and other statements satisfaction of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1i) no provision Investment Bank shall have furnished to Lucent an opinion of Davix Xxxx & Xardxxxx, xxunsel for Investment Bank, dated the Closing Date or an Additional Shares Closing Date, as the case may be, to the effect as agreed upon between Investment Bank and Lucent;
(ii) No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any applicable law Governmental Entity or regulation and no judgment, injunction, order other legal restraint or decree prohibition shall prohibit be in effect preventing the consummation of the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of occur at the Closing (after giving effect to or an Additional Shares Closing, as the purchase of the Investor Shares contemplated hereby)case may be; and
(3iii) Investment Bank shall have furnished to Lucent a certificate of Investment Bank, signed by an authorized officer, to the effect that the representations and warranties of Investment Bank in this Agreement are true and correct in all material respects on and as of the Closing Date or an Additional Shares Closing Date, as the case may be, with the same effect as if made on the Closing Date or an Additional Shares Closing Date, as the case may be, and Investment Bank has complied with all the agreements and satisfied all the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect on its part to be performed or satisfied at or prior to the Company’s acceptance of Closing Date or an Additional Shares Closing Date, as the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedcase may be.
Appears in 1 contract
Conditions. (a) The obligation of each Party to complete the Investor to consummate Arrangement and the Closing other transactions contemplated by this Agreement shall be subject to the condition that all fulfillment or satisfaction, on or before the Effective Time or such other time or date as is specified below, of each of the following conditions, any of which (other than those specified in paragraphs (c), (d), (e), (f), (j) and (k)) may be waived by the Parties collectively without prejudice to any Party’s right to rely on any other condition:
(a) each of the representations and warranties and made by the other statements of the Company Parties hereto set forth in this Agreement shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.respects;
(b) The obligation each of the Company covenants, acts and undertakings of the other Parties to consummate be performed or complied with on or before the Closing shall be subject Effective Date pursuant to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date terms of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have been duly performed or complied with in all of its obligations hereunder theretofore to be performed.material respects;
(c) The obligation the Interim Order shall have been granted in form and substance satisfactory to the Parties not later than November 16, 2011 or such later date as the Parties may agree and shall not have been set aside or modified in a manner unacceptable to such parties on appeal or otherwise;
(d) the Arrangement Resolution shall have been approved by the requisite number of each votes cast by NMCCL Shareholders (other than Newmont and its Affiliates) at the Meeting in accordance with the provisions of the Investor NMCCL Exchangeable Shares, the Voting and Exchange Trust Agreement, the Company Interim Order and any applicable regulatory requirements;
(e) the Final Order shall have been granted in form and substance satisfactory to consummate the Closing Parties not later than December 27, 2011 or such later date as the Parties may agree;
(f) the Articles of Arrangement and all necessary related documents, in form and substance satisfactory to the Parties, shall have been accepted for filing by the Director together with the Final Order in accordance with subsection 192(6) of the CBCA not later than December 27, 2011 or such later date as the Parties may agree;
(g) no material action or proceeding shall be subject to the following additional conditions:
(1) pending or threatened by any Person and there shall be no provision of action taken under any existing applicable law or regulation, nor any statute, rule, regulation and no judgmentor order which is enacted, injunctionenforced, order promulgated or decree shall prohibit issued by any court, department, commission, board, regulatory body, government or governmental authority or similar agency, domestic or foreign, that: (i) makes illegal or otherwise directly or indirectly restrains, enjoins or prohibits the Arrangement or any other transactions contemplated hereby herein; or prohibit (ii) results in a judgment or assessment of material damages directly or indirectly relating to the Investor from owning Arrangement or voting any of the Investor Sharesother transactions contemplated herein;
(2h) all material third party and regulatory consents, exemptions (including, without limitation, all applications for exemptive relief submitted to the purchase Canadian securities regulators in connection with the Arrangement) and approvals considered necessary or desirable by the Investor Parties with respect to the Arrangement and the other transactions contemplated by this Agreement shall have been completed or obtained including, without limitation, necessary consents, exemptions and approvals from applicable securities regulatory authorities and under the rules or policies of the Investor Shares shall not TSX and NYSE;
(i) require there shall not, as of the Investor or any Effective Date, be holders of NMCCL Exchangeable Shares that hold, in aggregate, in excess of 2% of all outstanding NMCCL Exchangeable Shares (other than those held by Newmont and its affiliates to file a prior notice Affiliates), that have validly exercised and not withdrawn their rights of dissent under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; CBCA and the Interim Order;
(iij) require the Investor or any of its affiliates to become a bank holding company; or New Support Agreement and the New Voting and Exchange Trust Agreement shall have been executed by the parties thereto;
(iiik) cause Newmont shall have created and authorized the Investor, together with any other person whose securities issuance of the Company would be aggregated with New Special Voting Share;
(l) the Investor’s securities TSX shall have conditionally approved the listing of the Company for purposes of any bank regulation or law, New Exchangeable Shares to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect issued pursuant to the purchase Arrangement, subject only to the filing of required documents which cannot be filed prior to the Investor Shares contemplated hereby)Effective Date; and
(3m) the conditions set forth in Section 10 NYSE shall have conditionally approved the listing of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) shares of the Branch Purchase Agreement with respect Newmont Common Stock to be issued pursuant to the Company’s acceptance Arrangement and upon the exchange of New Exchangeable Shares, in each case subject only to the proceeds filing of required documents which cannot be filed prior to the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedEffective Date.
Appears in 1 contract
Conditions. (a) The obligation consummation of the Investor to consummate the Closing shall sale and purchase contemplated by this Agreement will be subject to the condition that all following conditions:
a. The representations and warranties and other statements of the Company by Seller set forth in Section 7 shall be true and correct in all material respects as of the date when made and as of the Closing.
b. There shall have been no material adverse change in the condition of the Properties except depletion through normal production within authorized allowables and rates of production, depreciation of equipment through ordinary wear and tear, and other transactions permitted under this Agreement or approved in writing by Buyer between the date of this Agreement and Closing.
c. All requirements made by Buyer with regard to title to the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company Properties shall have performed in all material respects all been fully satisfied or waived by Buyer. All consents, approvals and authorizations of its obligations hereunder theretofore assignments, and waivers of preferential rights to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect purchase required by Buyer shall have occurred been submitted to and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated approved by the Branch Purchase AgreementBuyer.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition d. Seller and Buyer understand and agree that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
if: (1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit title to the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
Properties is not satisfactory to Buyer; (2) Seller's actual interests in the purchase Properties is different than as represented by Seller and the Investor difference causes a diminution in Seller's net revenue interest of the Investor Shares shall not (i) require the Investor or any more than 10% of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed that which Seller represents to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) contracts, claims or litigation to which Buyer takes exception are material; or, (4) Seller fails to comply with any of the conditions set forth in Section 10 this Agreement; Buyer may, at its option, either terminate this Agreement at any time on or before Closing, or reduce the Purchase Price by an amount agreeable to both parties. However, any reduction in Seller's net revenue interests below that which is represented in Exhibit "A" shall result in an automatic reduction in the Purchase Price commensurate with the reduction in such net revenue interest.
e. The parties shall have performed or complied with all agreements and covenants required by this Agreement of which performance or compliance is required prior to or at Closing.
f. All legal matters in connection with and the consummation of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase transactions contemplated by this Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall be approved by counsel for Buyer and there shall have been satisfied or waivedfurnished by Seller such records and information as Buyer's counsel may reasonably request for that purpose.
g. Notwithstanding anything to the contrary in this Agreement, at Buyer's option, Buyer shall have the unilateral right to terminate this Agreement not later than December 15, 2010 if Buyer determines it does not have the rights to obtain and maintain the rights to be Operator of the Properties pursuant to existing Operating Agreements at Closing. Operations shall be transferred from Seller to Buyer at Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Sun River Energy, Inc)
Conditions. (a) The obligation Each Noteholder’s obligations under Section 1 of the Investor to consummate the Closing this Agreement shall be subject to the condition that all representations and warranties and other statements satisfaction or fulfillment of the Company shall be true and correct Tender Conditions (as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually defined in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinTerm Sheet); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation consummation of the Company to consummate the Closing Exchange Offers shall be subject to the condition that all representations and warranties and other statements satisfaction of the Investor shall conditions to be true and correct as set forth in the Offering Memorandum, including the fulfillment of the date of this Agreement and Exchange Conditions (as defined in the date Term Sheet). The Company may waive or amend any of the Closing (except those representations and warranties that by their terms speak specifically as conditions to the consummation of the date Exchange Offers, including the Exchange Conditions, or make any modification to the terms of this Agreement the Exchange Offers (including the terms of the New Notes) in its sole discretion, provided that any such waiver or some other date modification will not adversely affect any Noteholder’s holdings of New Notes without such Noteholder’s prior written consent. In addition, the Company may make any of the modifications to the terms of the Exchange Offers (including the terms of the New Notes) set forth on Schedule II of the Term Sheet and any such modification shall not be true and correct as deemed to adversely affect any Noteholder’s holdings of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedNew Notes.
(c) The obligation of each of Company shall withdraw the Investor and Exchange Offers in the Company to consummate event that on any day while the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgmentExchange Offers are outstanding, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;Tender Conditions would no longer be able to be satisfied (and not susceptible to cure or redress using commercially reasonable efforts) or waived by the Company in accordance with this Agreement and the Term Sheet (except as a result of the failure of the Noteholders to fulfill their obligations under this Agreement and the Term Sheet).
(2d) The Company shall have furnished to the purchase by Noteholder on the Investor fifth business day following the commencement of the Investor Shares shall not (i) require Exchange Offers and on the Investor or any closing date of its affiliates to file the Exchange Offers, a prior notice under certificate of the Change in Bank Control ActCompany, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities signed by an executive officer of the Company would be aggregated with and dated as of each respective date, to the Investor’s securities effect that the representations and warranties of the Company Parties in this Agreement are true and correct in all material respects on and as of each respective date (except for purposes representations and warranties made as of any bank regulation or lawa specified date, to collectively which shall be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor true and such other persons) would represent more than 9.9% of any class of voting securities correct only as of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreementspecified date), shall have been satisfied or waivedwith the same effect as if made on such dates.
Appears in 1 contract
Samples: Support Agreement (Realogy Corp)
Conditions. The obligations of the Initial Purchaser to purchase the Notes under this Agreement are subject to the performance by each of the Co-Issuers and each Guarantor of their respective covenants and obligations hereunder and the satisfaction of each of the following conditions:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company and the Subsidiaries contained in this Agreement and in each of the other Transaction Documents shall be true and correct as of the date hereof and at the Closing Date. On or prior to the Closing Date, the Company and each other party to the Transaction Documents (other than the Initial Purchaser) shall have performed or complied with all of this Agreement the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Transaction Documents.
(b) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued or threatened as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the other Transactions under the Transaction Documents; and no stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company after due inquiry, be pending or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the other Transactions under the Transaction Documents. No Proceeding shall be pending or, to the knowledge of the Company after due inquiry, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would not, individually or in the aggregate, have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Time of Sale Document and the Final Offering Circular, there shall not have been any Material Adverse Change.
(e) The Notes shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL market.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(g) The Initial Purchaser shall have received on the date hereof and/or the Closing Date (as specified below):
(i) certificates dated the Closing Date, signed by (1) the Chief Executive Officer and (2) the principal financial or accounting officer of the Company, on behalf of the Co-Issuers, to the effect that (a) the representations and warranties set forth in Section 4 hereof, in each of the Transaction Documents and the Perfection Certificate are true and correct with the same force and effect as though expressly made at and as of the Closing Date, except for the representations and warranties that were expressly as of a certain specified date, (b) each of the Co-Issuers and the Guarantors has performed and complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Time of Sale Document and the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Time of Sale Document and the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), other than as described in the Time of Sale Document and the Final Offering Circular or contemplated hereby, neither the Company nor any Subsidiary of the Company has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company and the Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or short-term or long-term indebtedness of the Company or any Subsidiary of the Company that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, and (e) the sale of the Notes has not been enjoined (temporarily or permanently);
(ii) a certificate, dated the Closing Date, executed by the Secretary of each Co-Issuer and Guarantor, certifying such matters as the Initial Purchaser may reasonably request;
(except those representations iii) a certificate evidencing qualification by such entity as a foreign corporation and warranties good standing issued by the Secretaries of State (or comparable office) of each of the jurisdictions in which each of the Co-Issuers and Guarantors operates as of a date within five days prior to the Closing Date;
(iv) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in the form previously approved by the Initial Purchaser or its counsel;
(v) the opinion of Xxxxxxxx PC, counsel to the Company, dated the Closing Date, in the form of Exhibit A attached hereto;
(vi) an opinion, dated the Closing Date, of Xxxxx Day, counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions;
(A) a customary comfort letter, dated the date hereof, from PricewaterhouseCoopers LLP, independent auditors with respect to the Company and the Forbes Group, in form and substance reasonably satisfactory to the Initial Purchaser and its counsel, with respect to the financial statements and certain financial information contained in the Time of Sale Document, and (B) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser and its counsel, to the effect that by their terms speak specifically PricewaterhouseCoopers LLP reaffirms the statements made in its letter furnished pursuant to clause (A) with respect to the financial statements and certain financial information contained in the Time of Sale Document and the Final Offering Circular;
(viii) an Officers’ Back-Up Certificate dated as of the date of this Agreement or some other date shall be true hereof and correct as of such date), except for such failures to be so true the Closing Date executed by the President and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that Chief Executive Officer and Senior Vice President and Chief Financial Officer of the Company shall have performed providing back-up disclosure support as specified therein, in form and substance reasonably satisfactory to the Initial Purchaser;
(ix) letters from holders of all material respects all outstanding debt of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company and its subsidiaries (or their predecessors in interest) (yeach of which is listed on Schedule III hereto) having the Company effect of confirming that, as of the Closing Date and after giving effect to the transactions contemplated by use of proceeds from the Branch Purchase Agreement.
(b) The obligation Offering, for each such holder, the debt held thereby has been repaid, along with any repayment or repurchase premium, with the effect that none of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates Subsidiaries owes any further amounts to file a prior notice under such holder and all such respective agreements or arrangements have been terminated.
(h) The terms of each Transaction Document shall conform in all material respects to the Change description thereof in Bank Control Actthe Time of Sale Document and the Final Offering Circular. Each of the Co-Issuers and Guarantors shall have executed and delivered, or otherwise seek prior approval or non-objection caused to be delivered, to the Initial Purchaser (i) each of any state or federal banking regulator; the Transaction Documents to which it is a party and (ii) require the Investor Notes being purchased by the Initial Purchaser at the Closing pursuant to this Agreement, in each case in form and substance reasonably satisfactory to the Initial Purchaser.
(i) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any other Transaction contemplated in the Transaction Documents.
(j) The Notes Collateral Agent shall have received (with a copy for the Initial Purchaser) on the Closing Date:
(i) appropriately completed copies of Uniform Commercial Code lien financing statements naming each Co-Issuer and Guarantor as a debtor and the Notes Collateral Agent as the secured party, or other similar instruments or documents to be filed under the Uniform Commercial Code of all jurisdictions as may be necessary or, in the reasonable opinion of the Notes Collateral Agent and its affiliates counsel, desirable to become a bank holding company; perfect the security interests of the Notes Collateral Agent pursuant to the Collateral Agreements;
(ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than the security interests, liens or encumbrances permitted under the Indenture) of any Person in any Collateral described in any Collateral Agreement previously granted by any Person;
(iii) cause certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the InvestorNotes Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name any Co-Issuer or Guarantor (under its present name and any previous names) as the debtor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise copies of such securities by financing statements (none of which shall cover any Collateral described in any Collateral Agreement, other than such financing statements that evidence the Investor and security interests, liens or encumbrances permitted under the Indenture);
(iv) such other persons) would represent more than 9.9% of any class of voting securities of approvals, opinions, or documents as the Company outstanding on the date of the Closing (after giving effect Notes Collateral Agent may reasonably request in form and substance reasonably satisfactory to the purchase of the Investor Shares contemplated hereby)Notes Collateral Agent; and
(3v) the conditions set forth in Section 10 Notes Collateral Agent and its counsel shall be satisfied that (i) the Liens granted to the Notes Collateral Agent, for the benefit of the Branch Purchase Agreement, Secured Parties in the Collateral described above is of the priority described in the Time of Sale Document and the Final Offering Circular; and (ii) no Lien exists on any of the Collateral described above other than the condition set forth Liens created in Section 10.3(e) favor of the Branch Purchase Agreement with respect Notes Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement, in each case subject to the Company’s acceptance of security interests, liens or encumbrances permitted under the proceeds of the Acceptable Financing Indenture.
(as defined in the Branch Purchase Agreement), k) Provision shall have been satisfied made for the filing of all Uniform Commercial Code financing statements or waivedother similar financing statements and Uniform Commercial Code Form UCC-3 termination statements.
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Conditions. Notwithstanding any other provision, as a condition precedent to each Closing (a) The obligation defined below), all of the Investor to consummate the Closing shall following conditions must be subject to the condition that all representations and warranties satisfied:
1. All documents, instruments and other statements of the writings required to be delivered by Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date to Purchaser pursuant to any provision of this Agreement or some other date shall be in order to implement and effect the transactions contemplated herein have been fully executed and delivered, including without limitation those enumerated in Section II.B above;
2. The Common Stock is listed for and currently trading on the same Trading Market, Company is in compliance with all requirements to maintain listing on the Trading Market, and there is no notice of any suspension or delisting with respect to the trading of the shares of Common Stock on such Trading Market;
3. The representations and warranties of Company set forth in this Agreement are true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects as if made on such date;
4. No material breach or default has occurred under any Transaction Document or any other agreement with Purchaser, and all shares of its obligations hereunder theretofore Common Stock issuable to be performed (without giving Purchaser have been timely delivered, and shares issued over two weeks have been received into Purchaser’s account in electronic form and fully cleared for trading;
5. Company has the number of duly authorized shares of Common Stock reserved for issuance as required pursuant to the terms of this Agreement;
6. There is not then in effect to any qualification as to materiality law, rule or Material Adverse Effect contained therein); and regulation prohibiting or restricting the condition that since transactions contemplated in any Transaction Document, or requiring any consent or approval which will not have been obtained, nor is there any pending or threatened proceeding or investigation which may have the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company effect of prohibiting or (y) the Company after giving effect to adversely affecting any of the transactions contemplated by this Agreement; no statute, rule, regulation, executive order, decree, ruling or injunction will have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits the Branch Purchase transactions contemplated by this Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation , and no judgmentactions, injunctionsuits or proceedings will be in progress, order pending or, to Company’s knowledge threatened, by any person other than Purchaser or decree shall any Affiliate of Purchaser, that seek to enjoin or prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
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Samples: Stock Purchase Agreement (VelaTel Global Communications, Inc.)
