Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be subject to the fulfillment at or prior to the Effective Time of the following conditions: (a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote; (b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated; (c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby; (d) The Form S-4 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; (e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted); (f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and (g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance. Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions: (a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect; (b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby; (c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and (d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (National Realty L P), Agreement and Plan of Reorganization (American Realty Trust Inc)
Conditions. Section SECTION 8.1 Conditions to Each Party's Obligation to Effect the MergersMerger. ----------------------------------------------------------- The Unless waived by the parties, the respective obligations of each party to effect the Mergers Merger shall be subject to the fulfillment at or prior to the Effective Time Closing Date of the following conditions:
(a) This Agreement, the Merger Agreements this Agreement and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative requisite vote of a majority the stockholders of the outstanding shares of ART Common Stock Company under applicable law and NRLP Units entitled to voteapplicable listing requirements;
(b) The the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period, if any, period applicable to the consummation of the Mergers Merger under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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 effecteffect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) No temporary restraining order, no preliminary or permanent injunction or other order or decree by any federal or state court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal federal government or governmental agency in the United States which would prevent the consummation of the Mergers Merger or impose material conditions with respect theretomake the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & Xxxxxxx L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(gi) The shares all required material consents and approvals of Newco Common Stock required lenders who have advanced $5,000,000 or more to be issued hereunder Parent or the Company and lessors of material leases shall have been approved obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for listing on the New York Stock Exchange, subject to official notice of issuanceobtaining such consents and approvals.
Section SECTION 8.2 Conditions to Obligation of NRLP the Company to Effect the NRLP Merger. ---------------------------------------------------------- The Unless waived by the Company, the obligation of NRLP the Company to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of Xxxxxx Xxxx & Xxxxxxxx LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & Xxxxxxx L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from Xxxxxxxxx & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with Xxxxxx X. Xxxxxx ("Xx. Xxxxxx"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following additional conditions:
(a) ART the Company shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time Closing Date and the representations and warranties of ART the Company contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement made and on and as of the Effective Time Closing Date as if made on at and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP Parent shall have received a certificate Certificate of the President and Chief Executive Officer or of an Executive a Vice President of ART the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco Parent shall have received an opinion from Xxxxx Xxxxxx Xxxx & Xxxxxxxx LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxx LLP substantially Xxxxx, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the NRLP Merger Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall be treated not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the Codepublished projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & Xxxxxxx L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.
Appears in 2 contracts
Samples: Merger Agreement (Corporate Express Inc), Merger Agreement (Corporate Express Inc)
Conditions. Section 8.1 Conditions The obligation of the Lenders to Each Party's Obligation to Effect make the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be Term Loans is subject to the fulfillment at or prior to the Effective Time satisfaction of the following conditions:
(a) This Agreement, the Merger Agreements all representations and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote warranties of a majority any of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained Credit Parties set forth in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements any other Loan Document shall be true and correct in all material respects on and with the same effect as of the date of this Agreement and on and as of the Effective Time as if though made on and as of such date, except as contemplated or for (i) those representations and warranties which relate only to the Closing Date and (ii) those changes in such representations and warranties otherwise permitted by the terms of this Agreement Agreement;
(b) there shall have occurred no Material Adverse Effect, after giving effect to the Term Loans;
(c) no Default or Event of Default shall have occurred and be continuing;
(d) if requested by the Merger AgreementsAgent, and NRLP it shall have received a certificate executed by a Responsible Officer of the President or of an Executive Vice President of ART Borrower as to that effectthe compliance with subparagraphs (a) through (c) above;
(be) ART the making of the Term Loans shall not be prohibited by, or subject the Agent or any Lender to, any penalty or onerous condition under any Legal Requirement; and
(f) the Borrower shall have obtained paid all legal fees and other expenses of the consent type described in Section 10.9 hereof for which invoices have been presented through the date of the Term Loans;
(g) the Agent and the Lenders shall have received the following which shall be duly executed and in Proper Form:
(1) the Loan Documents executed by the applicable Credit Parties;
(2) a certificate of corporate resolutions and incumbency executed by the Secretary or approval an Assistant Secretary of the Borrower dated as of the date hereof, authorizing (i) the Borrower’s entering into the transactions contemplated hereby and (ii) the delivery by the Borrower of the Loan Documents to be executed and delivered by the Borrower;
(3) a certificate of corporate resolutions and incumbency executed by the Secretary or an Assistant Secretary of each person whose consent of the Guarantors dated as of the date hereof, authorizing each of the Guarantors to (i) enter into the transactions contemplated hereby and (ii) deliver the Loan Documents to be executed and delivered by the Guarantors;
(4) certified copies of the Organizational Documents of the Borrower, each of the Borrower’s Subsidiaries, and the Parent;
(5) certificates from the Secretary of State or approval shall other appropriate public official of the State of Delaware as to the continued existence and good standing of the Borrower in the State of Delaware;
(6) certificates from the Secretary of State or other appropriate public official as to the continued existence and good standing of each of the Guarantors in its applicable State of formation;
(7) certificates from the appropriate public officials of the States of Texas, California, Colorado, Florida, Idaho, Iowa, Kansas, Nebraska, Oklahoma, Tennessee, Utah and Wisconsin for the Borrower as to the good standing and qualification as a foreign corporation, to the extent it is necessary to be required qualified to do business as a foreign corporation in these jurisdictions;
(8) [intentionally omitted];
(9) copies of the following financial information: (i) audited consolidated financial statements of the Borrower and its Subsidiaries for the two most recent fiscal years ended prior to the Closing Date as to which such financial statements are available, (ii) unaudited interim consolidated financial statements of the Borrower and its Subsidiaries for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this paragraph and (iii) the most recent projected income statement, balance sheet and cash flows for each of the Borrower’s fiscal years through June 30, 2011 (setting forth such projections on both an annual basis and on a monthly basis for the fiscal year ending June 30, 2008 and on an annual basis only for the remaining fiscal years);
(10) evidence that all material governmental and third party approvals necessary in connection with the transactions contemplated hereby under financing thereof and the continuing operations of the Borrower and its Subsidiaries (including shareholder approvals, if any) have been obtained on terms satisfactory to the Lenders and shall be in full force and effect, and all applicable waiting periods have expired without any loan action being taken or credit agreementthreatened by any competent authority that would restrain, noteprevent or otherwise impose adverse conditions on the financing thereof or, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation any of the transactions contemplated hereby;
(c11) NRLP the First Lien Intercreditor Agreement;
(12) a payoff letter from Wilmington Trust Company, indicating the amount of the obligations of the Credit Parties to Wilmington Trust Company and certain other lenders under the Term Loan Agreement dated as of September 26, 2006, and an acknowledgment by Wilmington Trust Company (on behalf of itself and such lenders) that upon receipt of such funds neither Wilmington Trust Company nor any such lender will have any rights or interests under the Security Documents or that certain Intercreditor Agreement, dated as of September 26, 2006, by and among the Credit Parties, the Revolving Credit Agent, the Collateral Agent and Wilmington Trust Company;
(13) evidence that all legal (including tax implications) and regulatory matters in connection with the Term Loans are satisfactory to the Agent and the Lenders;
(14) a legal opinion from Xxxxxxx Procter LLP, the independent counsel for the Credit Parties, dated as of the Closing Date, addressed to the Agent and acceptable in all respects to the Agent and the Lenders in their sole reasonable discretion;
(15) certificates of insurance satisfactory to the Collateral Agent in all respects evidencing the existence of all insurance required to be maintained by the Borrower and its Subsidiaries pursuant to the terms of this Agreement and the Security Documents;
(16) copies of all material employment agreements, management fee agreements and tax sharing agreements with respect to any of the Credit Parties which the Agent shall have received requested;
(h) payment by the letter Borrower to the Lenders, the Agent and the Agent’s applicable Affiliates of BDO Xxxxxxx, LLP referred all fees required to in Section 7.8 hereofbe paid under the Loan Documents and all expenses required to be paid under the Loan Documents for which invoices have been presented; and
(di) NRLP receipt by the Agent and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially the Lenders of all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the effect that transactions contemplated hereby as the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies Agent may reasonably request, executed by the requirements of Section 351 of Credit Parties or any other Person required by the CodeAgent.
Appears in 2 contracts
Samples: Term Loan Agreement (Animal Health International, Inc.), Term Loan Agreement (Animal Health International, Inc.)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect of the Mergers. ----------------------------------------------------------- The respective obligations Transaction Documents shall become effective only upon satisfaction of each party to effect the Mergers shall be subject to the fulfillment at or prior to the Effective Time of the following conditions:conditions precedent (the “Conditions Precedent”):
(a) This Agreement, the Merger Agreements and Company’s registration statement on Form S-11 (SEC File No. 333-196798) without material amendments after the transactions contemplated hereby and thereby shall have date hereof has been approved and adopted declared effective by the affirmative vote of a majority of SEC (the outstanding shares of ART Common Stock and NRLP Units entitled to vote“Registration Statement”);
(b) The waiting period, if any, applicable to the consummation of underwriting agreement between the Mergers under Company and the HSR Act shall have expired or been terminatedUnderwriters (as defined in the Registration Statement in the form attached hereto as Exhibit E) has become effective (the “Underwriting Agreement”);
(c) The parties hereto Investors shall have made been paid the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or sum of $20,000,000 in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated herebycash;
(d) The Form S-4 shall have become effective execution and delivery by Plymouth 20 and Plymouth Financial, as applicable, of the following documents in accordance connection with the provisions Mezzanine Loan Agreement, dated as of October 17, 2016, by and between DOF Holdings and Plymouth 20 (the “Mezzanine Loan Agreement”) which reflect:
(1) certain amendments to that certain Pledge and Security Agreement dated as of October 17, 2016 and related documentation pursuant to which Plymouth Financial pledged its 0.5% membership interest in Plymouth 20 to DOF Holdings, as mezzanine lender, as security for the Obligations (as defined in the Mezzanine Loan Agreement) and the issuance of a new Certificate of Membership Interest to Plymouth Financial (collectively, the “Amended Pledge Documentation”) to reflect the redemption by Plymouth 20 of the Securities Act99.5% membership interest in Plymouth 20 held by DOF Plymouth (the “Redemption”), which Amended Pledge Documentation shall be substantially in the form attached hereto as Exhibit F, with such changes thereto requested by Lender (as defined below) or reasonably requested by DOF Holdings; and
(2) certain modifications to the Mezzanine Loan Agreement, including, without limitation, Sections 1.1, 2.7, 3.1, 8.2 and no stop order suspending 10.1 thereof to reflect the terms of the Redemption, the Amended Pledge Documentation and the termination of the TL Participation Interest (as defined in the Mezzanine Loan Agreement), which modifications shall be evidenced by that certain First Amendment to Loan Agreement attached hereto as Exhibit G, with such effectiveness shall have been issued and remain in effect;changes thereto requested by Lender or reasonably requested by DOF Holdings (the “Mezzanine Loan Agreement Amendment”).
(e) No temporary restraining orderThe issuance of an updated UCCPlus Insurance Policy with “date down” endorsement for the Mezzanine Loan which reflects the Amended Pledge Documentation.
(f) The written approval and consent of Lender (as defined in the Loan Agreement, preliminary or permanent injunction or other order or decree dated as of October 17, 2016, by any court and among the Borrower (as defined therein) and American General Life Insurance Company, American Home Assurance Company, National Union Fire Insurance Company of competent jurisdiction which prevents Pittsburgh, PA., and The United States Life Insurance Company in the consummation City of New York (the “Mortgage Loan Agreement”)) to the following:
(1) the Amendment to Limited Liability Company Agreement (and the entering into thereof) and the New Membership Certificate (and the issuance thereof) shall not constitute a recourse event under Section 11.28.1 (xi) of the Mergers Mortgage Loan Agreement or imposes material an Event of Default under Section 6.1 of the Mortgage Loan Agreement;
(2) the Amended Pledge Documentation and the Mezzanine Loan Agreement Amendment;
(3) the termination of the TL Participation Interest;
(4) in connection with the Redemption and the payment of the Redemption Price:
(A) the issuance of the Shares to Investors shall not be subject to any of the terms and conditions with respect thereto shall have been issued of the Intercreditor Agreement, dated October 17, 2016, by and remain between Lender, as mortgage lender, and DOF Holdings, as mezzanine lender (the “Intercreditor Agreement”), including, without limitation, any requirement thereunder that the issuance of the Shares satisfy the Converted Mezzanine Indebtedness Conditions (as defined in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree liftedthe Intercreditor Agreement);
(fB) No action the period of ownership of Shares by Investors shall have been takenat no time constitute an ML Affiliated Borrower Period (as defined in the Intercreditor Agreement);
(C) the issuance and/or ownership of Shares by Investors shall not constitute a trigger of any obligation or requirement of DOF Holdings, and no statuteas mezzanine lender, rule under the Intercreditor Agreement, including Section 6(f)(ii) thereof, to convert the Loan (as defined in the Mezzanine Loan Agreement) into preferred or regulation shall have been enacted, by any state other equity or Federal government collapse or governmental agency which would prevent otherwise extinguish the consummation of the Mergers or impose material conditions with respect theretoLoan; and
(gD) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time payment of the following additional conditions:
(a) ART Redemption Price to Investors and such payment shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as not constitute a breach of the date of this Agreement and on and as of the Effective Time as if made on and as of such dateIntercreditor Agreement, except as contemplated or permitted by this Agreement and the Merger Agreementsincluding, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effectwithout limitation, Section 10 thereof;
(b5) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents Exchange and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation issuance of the transactions contemplated herebyWarrants:
(A) the issuance of the Warrants to DOF Holdings shall not constitute collateral securing the Loan and DOF Holdings shall not be subject to any of the terms and conditions of the Intercreditor Agreement with respect to the Warrants (and any exercise thereof), including, without limitation, any requirement thereunder that a conversion of the Warrants to common stock satisfy the Converted Mezzanine Indebtedness Conditions (as defined in Intercreditor Agreement);
(cB) NRLP the period of ownership by DOF Holdings of the Warrants or any common stock of Plymouth REIT issued pursuant to an exercise of such Warrants shall have received at no time constitute an ML Affiliated Borrower Period (as defined in the letter Intercreditor Agreement);
(C) the issuance to and/or exercise of BDO Xxxxxxxthe Warrants by DOF Holdings shall not constitute a trigger of any obligation or requirement of DOF Holdings, LLP referred as mezzanine lender, under the Intercreditor Agreement, including Section 6(f)(ii) thereof, to in Section 7.8 hereofconvert the Loan into preferred or other equity, collapse or otherwise extinguish the Loan; and
(dD) NRLP the issuance of the Warrants to DOF Holdings and Newco such issuance (and/or exercise thereof) shall not constitute a breach of the Intercreditor Agreement, including, without limitation, Section 10 thereof;
(6) the Redemption and the issuance of shares of Plymouth REIT in the Plymouth IPO and the subsequent trading of such shares shall constitute Permitted Transfers satisfying all Transfer Conditions under Section 7.1(C) of the Mortgage Loan Agreement.
(g) the Warrant Certificate and the Instructions (as such terms are defined in Section 4 of this Agreement) shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially been delivered to DOF Holdings and DOF Plymouth, respectively. If all of the Conditions Precedent are not satisfied in full on or before June 16, 2017, then the Transaction Documents shall be of no force or effect and each of the Transaction Documents shall be void ab initio and no party shall have any rights or obligations pursuant to the effect that Transaction Documents or the NRLP Merger Letter Agreement and all parties shall be treated for federal income tax purposes restored to the status quo ante and all parties shall have all rights and obligations pursuant to all existing agreements between Investors and the Company and their respective affiliates just as part of a transaction that satisfies if this Agreement, the requirements of Section 351 of Letter Agreement and the CodeTransaction Documents had not been executed.
Appears in 2 contracts
Samples: Private Placement Agreement (Plymouth Industrial REIT Inc.), Private Placement Agreement (Plymouth Industrial REIT Inc.)
Conditions. Section 8.1 Conditions The obligation of Xxxxx to Each Party's Obligation make its contributions at Closing to Effect the Mergers. ----------------------------------------------------------- The respective obligations capital of each party to effect the Mergers Partnership provided for herein shall be subject to the fulfillment at performance by Star in all material respects of all of the agreements to be performed by it hereunder on or prior before the Closing Date, and the accuracy in all material respects of the representations in Exhibit C and to the Effective Time of the following further conditions:
(a) This AgreementThere shall not be pending or threatened on the Closing Date any action, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled suit or proceeding, whether administrative or judicial, seeking to vote;
(b) The waiting periodenjoin, if anyrestrain, applicable to prohibit or invalidate the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where , nor shall there be in effect on the failure to obtain Closing Date any such approval would notorder, individually judgment or in the aggregatedecree of any court or other governmental body enjoining, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, restraining or upon the otherwise prohibiting consummation of the transactions contemplated hereby;by this Agreement or subjecting Xxxxx or the Partnership to any liability.
(b) Xxxxx shall have received from counsel to Star, an opinion in the form of Exhibit D.
(c) Pursuant to Section 27.1, at the Closing Star shall have made an aggregate payment of $500,000 to Xxxxx Xxxxx and Xxxxxx Xxxxx.
(d) The Form S-4 Xxxxx shall have become effective in accordance with completed the provisions acquisition of the Securities Actentire equity interest in Xxxxx Winchester Theatres, Inc., and no stop order suspending such effectiveness shall have been issued and remain in effect;Xxxxx Lincoln Park Theatres, Inc.
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto Old Kent Bank and Trust Company shall have been issued discharged any and remain in effect (each party agreeing to use its reasonable efforts to have all mortgages and terminated any such injunctionand all security interests upon the real and personal property of Xxxxx Lincoln Park Theatres, order or decree lifted);Inc. and Xxxxx Winchester Theatres, Inc.
(f) No action After the date hereof, Star shall have been takenincurred no expenses or obligations without the consent of Xxxxx, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent relating to the consummation of the Mergers or impose material conditions with respect thereto; andStar Undeveloped Theatre Properties.
(g) The shares Xxxxx shall have received a letter from CPE, dated as of Newco Common Stock the Closing Date, in form and substance reasonably satisfactory to Xxxxx, stating that CPE agrees to perform and be bound by the terms of this Agreement applicable to it, as if it were a signatory hereto.
(h) 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.
(i) Star shall have delivered to Xxxxx the Disclosure Schedules required to be issued delivered by Star hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required exceptions to be performed on or prior to the Effective Time and the representations and warranties of ART contained Star set forth in such Disclosure Schedules shall be reasonably acceptable to Xxxxx. If Xxxxx does not accept any exception set forth in a proposed Disclosure Schedule received from Star, Xxxxx shall object to such exception by written notice to Star within ten (10) days after its receipt of such Disclosure Schedule. If Xxxxx does not object to any exception within such period, the condition set forth in this Agreement and the Merger Agreements Section 10.1(i) shall be true and correct in all material respects on and waived with respect to such exception.
(j) Star shall have delivered to Xxxxx a letter dated as of the date of this Agreement Closing Date, in form and on and as of the Effective Time as if made on and as of such datesubstance reasonably satisfactory to Xxxxx, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect certifying that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of conditions specified in this Section 351 of the Code10.1 have been satisfied (other than any conditions waived in writing by Xxxxx).
Appears in 2 contracts
Samples: Partnership Agreement (Loews Mountainside Cinemas, Inc.), Partnership Agreement (LCE AcquisitionSub, Inc.)
Conditions. Section 8.1 7.1 Conditions to Each Party's Obligation to Effect the MergersMerger. ----------------------------------------------------------- ---------------------------------------------------------- The respective obligations obligation of each party to effect the Mergers Merger shall be subject to the fulfillment satisfaction at or prior to the Effective Time of each of the following conditions, any and all of which may be waived in whole or in part by the Company, the Parent or Merger Sub, as the case may be, to the extent permitted by applicable law:
(a) This Agreement, Agreement shall have been adopted by the requisite vote of the holders of the shares of Company Common Stock in order to consummate the Merger Agreements and the transactions contemplated hereby and thereby this Agreement shall have been approved and adopted by the affirmative requisite vote of a majority under the rules and regulations of the outstanding shares NNM by the stockholders of ART Common Stock and NRLP Units entitled to vote;the Parent.
(b) The waiting periodNo statute, if any, applicable to rule or regulation shall have been enacted or promulgated by any Governmental Entity which prohibits the consummation of the Mergers Merger, and there shall be no order or injunction of a court of competent jurisdiction in effect precluding consummation of the Merger; provided, however, that each of the parties to this Agreement shall have used commercially reasonable efforts to prevent the entry of such restraints and to appeal as promptly as possible any such restraints that may be entered.
(c) The applicable waiting periods under the HSR Act shall have expired or been terminated;.
(cd) The parties hereto Registration Statement shall have made become effective under the requisite filings Securities Act and no stop order or proceedings seeking a stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose, and no similar proceeding in respect of the Proxy Statement, shall have been threatened in writing by the SEC or shall have been initiated by the SEC.
(e) All consents of any Governmental Entity or third party, the failure of which to obtain would reasonably be expected to have a Material Adverse Effect with all Governmental Entities as respect to the Surviving Corporation, shall have been obtained.
Section 7.2 Conditions to the Parent's and Merger Sub's Obligations to ---------------------------------------------------------- Effect the Merger. The obligations of the Parent and Merger Sub to consummate ----------------- the Merger shall be required pursuant subject to applicable lawsthe satisfaction on or prior to the Closing Date of each of the following conditions, rules any and regulations, all of which may be waived in whole or in part by the Parent and such Governmental EntitiesMerger Sub, to the extent required permitted by applicable law.
(a) The representations and warranties of the Company set forth in this Agreement shall be true and correct (i) as of the date of this Agreement (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall have approved be true and correct as of such date) and (ii) as of the transactions Effective Time as though made on and as of the Effective Time (except (x) to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct as of such date, (y) for changes contemplated by this Agreement; except Agreement and (z) where the failure failures to obtain be true and correct (without regard to any such approval would notmateriality, Company Material Adverse Effect or knowledge qualifications contained therein), individually or in the aggregate, have not had, and are not reasonably be expected to have, a Company Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation Effect).
(b) The Company shall have complied in all material respects with its obligations under this Agreement.
(c) The Parent shall have received an officer's certificate duly executed by each of the transactions contemplated hereby;Chief Executive Officer and Chief Financial Officer of the Company to the effect that the conditions set forth in Sections 7.2(a) and 7.2(b) have been satisfied.
(d) The Form S-4 Parent shall have become effective received an opinion of Brobeck, Phleger & Harrison LLP, in accordance with the provisions form and substance reasonably satixxxxxxxy xx xxx Parxxx, xxxed as of the Securities Actdate during which the Effective Time occurs, substantially to the effect that, on the basis of facts, representations and no stop order suspending assumptions set forth in such effectiveness opinion, for United States federal income tax purposes, the Merger will constitute a "reorganization" within the meaning of section 368(a) of the Code. In rendering such opinion, Brobeck, Phleger & Harrison LLP shall have been issued receive and remain in effect;may rely upon represxxxxxxxns contained xx xxxxificates of the Company, the Parent and Merger Sub.
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court The holders of competent jurisdiction which prevents the consummation less than five percent of the Mergers or imposes material conditions with respect thereto outstanding Shares at the Effective Time shall have been issued and remain in effect (each party agreeing validly delivered to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions Company a demand for appraisal rights with respect thereto; and, and shall not have voted in favor of the Merger or otherwise failed to perfect or effectively withdrawn or lost such rights under Section 262 of the DGCL.
Section 7.3 Conditions to the Company's Obligations to Effect the Merger. ------------------------------------------------------------ The obligations of the Company to consummate the Merger shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions, any and all of which may be waived in whole or in part by the Company, to the extent permitted by applicable law.
(ga) The representations and warranties of Parent and Merger Sub set forth in this Agreement shall be true and correct (i) as of the date of this Agreement (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct as of such date) and (ii) as of the Effective Time as though made on and as of the Effective Time (except (x) to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct as of such date, (y) for changes contemplated by this Agreement and (z) where the failures to be true and correct (without regard to any materiality, Parent Material Adverse Effect or knowledge qualifications contained therein), individually or in the aggregate, have not had, and are not reasonably likely to have, a Parent Material Adverse Effect).
(b) Each of the Parent and Merger Sub shall have complied in all material respects with its obligations under this Agreement.
(c) The Company shall have received an officer's certificate duly executed by the Chief Financial Officer of the Parent to the effect that the conditions set forth in Sections 7.3(a) and 7.3(b) have been satisfied.
(d) The Company shall have received an opinion of Hale and Dorr LLP, in form and substance reasonably satisfactory to thx Xxmpany, xxted as of the date during which the Effective Time occurs, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion, for United States federal income tax purposes, the Merger will constitute a "reorganization" within the meaning of section 368(a) of the Code. In rendering such opinion, Hale and Dorr LLP shall receive and may rely upon representations contxxxxd in xxxxificates of the Company, the Parent and Merger Sub.
(e) The shares of Newco Parent Common Stock required issuable to be issued hereunder the stockholders of the Company as contemplated by Article 3 shall have been approved for listing on the New York Stock ExchangeNNM, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Legato Systems Inc), Merger Agreement (Otg Software Inc)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect The making of the Mergers. ----------------------------------------------------------- The respective obligations initial disbursement of each party to effect the Mergers shall be Loan is subject to the fulfillment at completion of the following conditions precedent in a manner satisfactory to Lender: (i) all filings have been completed that are necessary or advisable to perfect the security interest of Lender in the Collateral, including without limitation UCC filings and intellectual property filings, (ii) the Loan Documents and all other documents relating to this Agreement have been executed and delivered, (iii) Lender has confirmed that there has been no Material Adverse Change since the June 30, 2015 financial statements provided to Lender prior to the Effective Time date hereof, (iv) UCC and other searches deemed necessary by Lender have been completed, (v) payoff letters, with sufficient evidence of release of liens, in respect of existing indebtedness not permitted by the terms of this Agreement shall have been delivered, (vi) no Default or Event of Default has occurred and is continuing, and (vii) all other matters relating to the Loan requested by Lender. The making of each additional disbursement of the Loan is subject to the satisfaction of the following conditions:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing precedent on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect relevant disbursement date: (i) the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements representations and warranties made by Borrower contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements other Loan Documents shall be true and correct in all material respects on and as of such date, with the date of this Agreement and on and as of the Effective Time same effect as if made on and as of such date (provided, however, that those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as of such other date, except as contemplated or permitted by this Agreement and the Merger Agreements), and NRLP (ii) no Default or Event of Default shall have received exist or shall result from the requested disbursement. Each request by Borrower for a certificate disbursement of any portion of the President or Loan shall constitute a representation and warranty by Borrower hereunder, as of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval date of each person whose consent such disbursement, that the conditions in Section 1.2 are satisfied both before and after giving effect to such disbursement. Notwithstanding anything to the contrary in this Section 1.2 or approval shall be required otherwise in connection with the transactions contemplated hereby under any loan or credit agreementthis Agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or perfection of security interests in the aggregate, have a Material Adverse Effect on ART or upon the consummation Borrower’s assets outside of the transactions contemplated hereby;
(c) NRLP United States shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereofnot be required; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect provided that the NRLP Merger aggregate book value of such assets shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Codenot exceed $250,000 at any time.
Appears in 2 contracts
Samples: Loan and Security Agreement (Shotspotter, Inc), Loan and Security Agreement (Shotspotter, Inc)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be Agent and the Banks under this Amendment are subject to the fulfillment at or occurrence, prior to or simultaneously with the Third Amendment Effective Time Date, of each of the following conditions, any or all of which may be waived in whole or in part by the Banks in writing:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby a. The Borrowers shall have been approved prepaid the Term Loan by an amount sufficient to cause the principal balance outstanding thereunder on and adopted after the Third Amendment Effective Date to not exceed Sixty Million Dollars ($60,000,000);
b. The Borrowers shall have paid (i) to Comerica Bank, in its individual capacity and as Agent (for its sole account), any Arranger’s Fee fee due under the terms of the Supplemental Agency Fee letter dated July 15, 2009 (“2009 Agency Fee Letter”); and (ii) to Comerica Bank in its capacity as Agent, for distribution to the Banks who have executed and delivered consents to this Amendment on or before close of business July 22, 2009 (“Consenting Banks”), an amendment fee in amount equal to 25.0 basis points payable on the Revolving Commitments plus the principal balance outstanding under the Term Loan of the Consenting Banks, in each case, with such amounts determined after giving effect to the reductions thereof provided for under the terms of this Amendment;
c. The Borrowers shall have executed and delivered (or cause to have executed and delivered) to the Banks any and all documents reasonably requested by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to voteBanks;
(b) The waiting periodd. All actions, if anyproceedings, applicable instruments and documents required to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved carry out the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually Amendment or in the aggregate, have a Material Adverse Effect on ART incidental thereto and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness all other related legal matters shall have been issued satisfactory to and remain in effect;
(e) No temporary restraining orderapproved by Agent’s counsel, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto and said counsel shall have been issued furnished with such certified copies of actions and remain in effect (each party agreeing to use its reasonable efforts to have any proceedings and such injunction, order or decree lifted);
(f) No action other instruments and documents as they shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect theretoreasonably requested; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP e. Agent shall have received the letter of BDO Xxxxxxxagreements, LLP referred to in Section 7.8 hereof; and
(d) NRLP instruments and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to documents listed on the effect that the NRLP Merger shall be treated for federal income tax purposes Closing Checklist attached hereto as part of a transaction that satisfies the requirements of Section 351 of the CodeAnnex II.
Appears in 2 contracts
Samples: Credit Agreement (Multimedia Games Inc), Credit Agreement (Multimedia Games Inc)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- 4.1 The respective obligations of each party to effect the Mergers shall be subject to the fulfillment at or prior to the Effective Time of Parties, respectively, as contemplated by this Agreement, are in all respects conditional upon the following conditionsmatters:
(a) This AgreementEach Party being given full access to all the relevant records relating to the other Parties. The Parties agree that they, and their representatives shall not disclose any information so furnished without the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority consent of the outstanding shares of ART Common Stock and NRLP Units entitled to votefurnishing Party;
(b) The waiting period, if any, applicable to There not being any objection put forward by any relevant authority in connection with the consummation finality and purpose of this Agreement and the Mergers under the HSR Act shall have expired or been terminatedtransactions contemplated herein;
(c) The parties hereto shall have made completion of the requisite filings with all Governmental Entities as shall be required pursuant to applicable lawsagreements contemplated hereby, rules and including the amendment of Goltech's regulations, and such Governmental Entitiesother organizational documents to reflect the matters stipulated hereinabove;
(d) No governmental agency or regulatory body or any other person or organization having instituted any action, suit or investigation which restrains, prohibits or otherwise challenges the completion and performance of the transactions contemplated in this Agreement; or threatened to take any action as a result of or in anticipation of the extent required by applicable lawtransactions contemplated in this agreement; or proposed or enacted any statute or regulation which would prohibit, shall have approved materially restrict or materially delay implementation of the transactions contemplated by this Agreement; except where .
4.2 MOT and its representatives shall have the failure right to obtain any such approval would notconduct a full due diligence review of the activities, individually or in the aggregateaccounts, have a Material Adverse Effect on ART and NRLPcontracts, capital, payables, receivables, oil sales, production, exploration, assets, liabilities, and their respective Subsidiaries, taken as a whole, or upon the consummation other facets of the transactions contemplated hereby;
(d) The Form S-4 businesses of Goltech, Goloil and Teton for a period until 24 July 2000. Without limiting the foregoing, Teton shall have become effective in accordance with provide to MOT a detailed list of its liabilities and obligations. In the provisions of the Securities Actevent that such due diligence reveals events, and no stop order suspending such effectiveness shall have been issued and remain in effect;
(e) No temporary restraining ordercircumstances, preliminary or permanent injunction facts or other order or decree by any court of competent jurisdiction matters which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and breach the representations and warranties set forth herein, reveal any material liabilities of ART contained Goloil, Goltech or Teton, or matters that materially adversely affect the rights of MOT hereunder, or under any agreement executed and delivered in connection herewith, then MOT may terminate this Agreement Agreement, and thereupon the Merger Agreements provisions of Clause 2.10 shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time apply as if made on MOT had breached this Agreement. Thereupon, each Party shall take such actions, deliver such instruments and otherwise undertake such operations as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART necessary to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially give effect to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Codeforegoing.
Appears in 2 contracts
Samples: Master Agreement (Teton Petroleum Co), Master Agreement (Teton Petroleum Co)
Conditions. Section 8.1 Conditions Notwithstanding any other provision, as a condition precedent to Each Party's Obligation each Closing (defined below), all of the following conditions must be satisfied:
1. All documents, instruments and other writings required to Effect the Mergers. ----------------------------------------------------------- The respective obligations be delivered by Company to Purchaser pursuant to any provision of each party this Agreement or in order to implement and effect the Mergers shall be subject 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 fulfillment at or trading of the shares of Common Stock on such Trading Market (other than with respect to such notices and matters as have been publicly disclosed by the Company prior to the Effective Time date of this Agreement);
3. The representations and warranties of Company set forth in this Agreement are true and correct 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; 5. Company has the following conditions:number of duly authorized shares of Common Stock reserved for issuance as required pursuant to the terms of this Agreement; and
(a) This Agreement6. There is not then in effect any law, the Merger Agreements and rule or regulation prohibiting or restricting the transactions contemplated hereby and thereby shall in any Transaction Document, or requiring any consent or approval which will not have been approved and adopted by obtained, nor is there any pending or threatened proceeding or investigation which may have the affirmative vote effect of a majority prohibiting or adversely affecting any of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule rule, regulation, executive order, decree, ruling or regulation shall injunction will have been enacted, entered, promulgated or adopted by any state or Federal government court or governmental agency which would prevent the consummation authority of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to competent jurisdiction that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with prohibits the transactions contemplated hereby under by this Agreement, and no actions, suits or proceedings will be in progress, pending or, to Company's knowledge threatened, by any loan person other than Purchaser or credit agreementany Affiliate of Purchaser, note, mortgage, indenture, lease, license that seek to enjoin or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of prohibit the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Codeby this Agreement.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Ascent Solar Technologies, Inc.), Securities Purchase Agreement (Ascent Solar Technologies, Inc.)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- 5.1 The respective obligations of each party the Sellers and the Purchaser to effect complete the Mergers shall be subject to sale and purchase of the fulfillment at Shares are in all respects conditional on the satisfaction (or prior to waiver, as the Effective Time case may be) of the following conditionsmatters (the “Conditions”):
(a) with regard to each of the Project Licences, the approval of the Botswanan Minister of Minerals and Energy to the change in control in the Group brought about by the sale and purchase of the Shares having been obtained, evidenced in writing and not withdrawn, such approval being either unconditional or on conditions that do not have a material adverse effect (the “Botswana CoC Condition”);
(b) the approval of the Transaction by the Competition and Consumer Authority having been obtained, evidenced in writing and not withdrawn, such approval being either unconditional or on conditions that do not have a material adverse effect;
(c) the approval of the Transaction by SAMR, xxving been obtained, evidenced in writing and not withdrawn;
(d) the requisite majority of relevant shareholders of the Purchaser Guarantor as required under the rules entitled the “Rules (the “Listing Rules”) Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited (the “Stock Exchange”) as published by the Stock Exchange from time to time, shall have approved as a “Major Transaction” (as defined in the Listing Rules) by written shareholders' approval under Rule 14.44 of the Listing Rules, the entry by the Purchaser into this Agreement and the transactions contemplated by this Agreement (the “Shareholder Approval Condition”);
(e) completion by the Purchaser of an NDRC Filing; and
(f) there shall be no Order in effect that prohibits the Sellers and Purchaser completing the sale and purchase of the Shares. For the avoidance of doubt, the Condition in Clause 5.1(d) shall not be waived by any of the Parties for any reason whatsoever.
5.2 The Sellers shall use their best endeavours to procure the fulfilment of the Botswana CoC Condition as soon as possible, and in any event before the Long Stop Date including making all appropriate filings within ten (10) Business Days of this Agreement.
5.3 The Purchaser shall:
(a) This Agreementsubject to Clause 5.6, use its best endeavours to procure the Merger Agreements fulfilment of the Botswana CoC Condition and Antitrust Conditions as soon as possible, and in any event before the transactions contemplated hereby Long Stop Date, including making all appropriate filings within ten (10) Business Days of this Agreement (provided that all necessary information and thereby shall have been approved and adopted documents are provided by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to voteSellers upon request with no unreasonable delay);
(b) The waiting period, if any, applicable use its best endeavours to procure the consummation fulfilment of the Mergers under Shareholder Approval Condition as soon as possible, and in any event before the HSR Act shall have expired or been terminated;Long Stop Date; and
(c) The parties hereto shall have made submit the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, NDRC Filing to the extent required by applicable law, shall have approved NDRC as soon as practicable following the transactions contemplated by date of this Agreement and in any event within ten (10) Business Days of this Agreement; except where .
5.4 Without limiting the failure generality of Clause 5.3 and Clause 15.4, the Purchaser Guarantor and Purchaser agree to obtain provide or procure the provision of any such approval would not, individually or guarantee in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation favour of the transactions contemplated hereby;
(d) The Form S-4 shall have become effective Government of Botswana in accordance respect of the Group’s obligations under the Project Licences as may be requested by the Minister of Mineral Resources, Green Technology and Energy Security in connection with the provisions satisfaction of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect;Botswana CoC Condition.
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation 5.5 In respect of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunctionAntitrust Conditions, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditionsPurchaser shall:
(a) ART shall have performed prepare and submit any notifications, filings or submissions (or drafts thereof as appropriate in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior certain jurisdictions) to the Effective Time and applicable Regulatory Authority within ten (10) Business Days from the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as later of the date of this Agreement or, in the case of a Regulatory Authority not identified in this Agreement, the date of that Regulatory Authority issues a request or enquiry relating to the transactions contemplated by the Transaction Documents, with all information required in connection therewith, provided that all necessary information and on and as of documents are provided by the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effectSellers upon request with no unreasonable delay;
(b) ART shall have obtained allow the consent Lead Seller the opportunity to participate in any important/substantial call or approval of each person whose consent or approval shall be required in connection meeting with the transactions contemplated hereby under Regulatory Authority, and within two (2) Business Days inform the Lead Seller of the content of any loan meeting, material conversation and any other communication which takes place between the Purchaser (or credit agreementits Agents) and the Regulatory Authority in which the Lead Seller did not participate and provide copies or, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregatecase of non-written communications, have a Material Adverse Effect on ART or upon written summary, to the consummation of the transactions contemplated herebyLead Seller;
(c) NRLP shall have received procure that the letter Lead Seller is given a reasonable opportunity to review and comment on drafts of BDO Xxxxxxxall notifications, LLP referred filings and submissions before they are submitted to in Section 7.8 hereofthe Regulatory Authority and provide the Lead Seller with final copies of all such notifications, filings and submissions (it being acknowledged that certain such drafts and/or documents may be shared on a confidential basis only with outside counsel) and take account of any reasonable comments that the Lead Seller may have;
(d) use its best endeavours to avoid any declaration of incompleteness by the Regulatory Authority or any other suspension of the periods for clearance;
(e) not, without the prior written consent of the Lead Seller, withdraw any notification, filing or submission made to the Regulatory Authority; and
(df) NRLP bear all filing fees (and Newco necessary translation costs) associated with the notification and filings made in order to satisfy the Antitrust Conditions, with each Party bearing its own legal fees.
5.6 In respect of the Conditions in Clause 5.1(a) and 5.1(b), nothing in this Agreement shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially require the Purchaser to offer to the effect relevant Regulatory Authorities or to accept or agree any undertakings, commitments, conditions, modifications or remedies, whether involving divestments or disposals or constraints on prices or other behaviour or otherwise in order to obtain the satisfaction such Conditions (each, a “Regulatory Undertaking”), in each case to the extent that such a Regulatory Undertaking would have a material adverse effect.
5.7 The Sellers and the Purchaser agree that the NRLP Merger Purchaser shall be treated primarily responsible for federal income tax purposes responding to all requests and enquiries from the Regulatory Authority and such requests and enquiries shall be dealt with, in each case, by the Lead Seller and the Purchaser in consultation with each other and the Lead Seller and the Purchaser shall co-operate with each other and the Regulatory Authority, to the extent necessary and on a confidential basis, and provide all necessary information and assistance reasonably required by the other or by the Regulatory Authority as part soon as reasonably practicable upon being requested to do so, provided that any information provided in relation to a Seller (rather than the Group) shall be provided only to the Regulatory Authority and the Purchaser’s Lawyers on a strictly confidential basis and shall not be provided to the Purchaser.
5.8 Nothing in Clause 5.5 and 5.7 shall require a Party to share information, documents or communications with the other if prohibited by a Regulatory Authority from doing so.
5.9 Nothing in Clause 5.5 and 5.7 shall require a Party to disclose to or receive from the other any competitively sensitive information or business secrets. In order to comply with their obligations in Clause 5.5 and 5.7, the Parties will make arrangements for the provision of a transaction that satisfies copies of relevant information, documents and communications to the requirements of Section 351 other Party's external advisors on an external advisor only basis together with redacted versions excluding any such competitively sensitive information or business secrets to the other Party.
5.10 Without prejudice to Clauses 5.2 and 5.3, each of the CodePurchaser (on the one hand) and the Sellers (on the other hand) will promptly:
(a) co-operate with the other with a view to achieving satisfaction of the Botswana CoC Condition;
(b) provide the other with any necessary information, assistance and documents reasonably required for the purposes of making any submissions and notifications or filings necessary for the purposes of satisfying the Botswana CoC Condition; and
(c) provide any Relevant Authority with any necessary information or documents required by such Relevant Authority for the purposes of satisfying the Botswana CoC Condition.
5.11 Each Seller undertakes to notify the Purchaser (and any other Seller which is not otherwise aware) in writing, and the Purchaser undertakes to notify the Sellers in writing, of anything which will or may prevent any of the Conditions from being satisfied on or before the Long Stop Date or Extended Long Stop Date (if applicable) promptly after it comes to their attention.
5.12 The Purchaser undertakes to notify the Lead Seller as soon as possible on becoming aware that any of the Conditions has been satisfied.
5.13 Each of the Sellers and the Purchaser shall bear and pay its own costs and expenses (including all legal expenses) incurred by it in connection with or incidental to the satisfaction of the Conditions, save that the Purchaser shall be responsible for any fees, charges or other costs payable in connection with the submissions, notifications or filings referred to in Clause 5.5(a).
5.14 Except with the written consent of the Lead Seller, the Purchaser shall not, and shall procure that each member of the Purchaser’s Group shall not, directly or indirectly, either alone or in partnership or jointly or in conjunction with any person, as principal, agent, shareholder or in any other manner whatsoever, contact any Government Entities (including any Government Official thereof) in connection with the Transaction other than any Regulatory Authority.
5.15 The Lead Seller may, at its sole discretion, by written notice to the Purchaser, extend the Long Stop Date by up to three (3) months from the Long Stop Date, and the new Long Stop Date resulting from such extension shall be the “Extended Long Stop Date”.
5.16 If any of the Conditions are not fulfilled or waived on or before the Long Stop Date or the Extended Long Stop Date (if applicable), the Lead Seller may, at its sole discretion, be entitled to treat this Agreement as terminated subject to, and on the basis set out in, Clause 16.2.
5.17 If, at any time on or prior to the Long Stop Date or the Extended Long Stop Date (if applicable), the Lead Seller becomes aware that any Condition cannot be satisfied or fulfilled and it has given notice thereof as contemplated by Clause 5.11, it may thereafter, in its sole discretion, be entitled to treat this Agreement as terminated subject to, and on the basis set out in, Clause 16.2.
5.18 Where the Agreement is terminated by the Lead Seller pursuant to Clause 5.16 or Clause 5.17 solely as a result of any one or more of the Conditions in Clauses 5.1(c), 5.1(d) or 5.1(e) not being satisfied, the Purchaser shall pay the Pro Rata Portion of the Break Fee to each Seller. The Purchaser shall make such payment within thirty (30) Business Days after the later of the date of termination and the date the Purchaser receives notice of US dollar-denominated bank account details from all Sellers.
5.19 Payment of the Break Fee in accordance with Clause 5.18 shall be the Sellers’ sole and exclusive remedy for such termination.
5.20 If, at any time on or prior to the Long Stop Date or the Extended Long Stop Date (if applicable), the Lead Seller or the Purchaser concludes that there is an Order in effect as contemplated by Clause 5.1(f), such Party may provide written notice to the other Party at any time thereafter, at its sole discretion, terminating this Agreement subject to, and on the basis set out in, Clause 16.2.
Appears in 2 contracts
Samples: Share Sale and Purchase Agreement, Share Sale and Purchase Agreement
Conditions. Section 8.1 Conditions Any obligation of the Bank to Each Party's Obligation to Effect make the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect Loan or advance any funds under the Mergers shall be Note is subject to the fulfillment at or prior to the Effective Time complete satisfaction of all of the following conditions:conditions precedent (but no advance made before satisfaction of any such conditions shall be deemed to be a waiver thereof in respect to any subsequent advance):
(a) This Agreement, duly executed and delivered by the Merger Agreements Company;
(b) The Note to the Bank duly executed and delivered by the Company;
(c) The Company Pledge Agreement, duly executed and delivered by the Company;
(d) The Assignment, duly executed and delivered by the Company; and
(e) The other Security Documents duly executed and delivered to the Bank, and
(f) Certified copies of the certificate of incorporation and by-laws (or equivalent documents) of the Company and of resolutions of its Board of Directors authorizing the making and performance by the Company of this Agreement, the Note and the Company Pledge Agreement, and the other Security Documents to which it is a party, and the transactions contemplated hereby and thereby.
(g) A certificate of appropriate officers of the Company in respect of each of its officers (i) who is authorized to execute and deliver, as the case may be, this Agreement, the Note and each of the Security Documents to which it is a party, and (ii) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purpose of signing documents and giving notices and other communications in connection with this Agreement and the other Credit Documents and the transactions contemplated hereby and thereby shall have been approved (and adopted by the affirmative vote of a majority of Bank may conclusively rely on such certificate until it receives notice in writing from the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting periodCompany, if any, applicable to as the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entitiescase may be, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree liftedcontrary);
(fh) Receipt by the Bank of the certificates evidencing the shares of Stock to be pledged by the Company pursuant to the Security Documents, accompanied by undated stock powers duly executed in blank;
(i) An opinion of Xxxxx & Xxxxx, counsel to the Company, dated as of the date hereof, in substantially the form of Exhibit D hereto;
(j) Such other documents as the Bank or counsel to the Bank shall reasonably request.
(i) No action Default shall have been taken, occurred and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
be continuing and (gii) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained made by the Company herein and in this Agreement and the Merger Agreements Security Documents to which it is a party shall be true and correct in all material respects on and as of such date with the date of this Agreement same force and on and as of the Effective Time effect as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate .
(l) Payment of the President or of an Executive Vice President of ART Fee to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to Bank specified in Section 7.8 3.1 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
Appears in 2 contracts
Samples: Credit Agreement (First Commonwealth Corp), Credit Agreement (United Trust Inc /Il/)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers Agent hereunder shall be subject conditional upon the Agent receiving, and the Agent shall have the right on the Closing Date or on each Closing Date if there is more than one closing, on behalf of Subscribers to withdraw all Subscription Agreements delivered and not previously withdrawn, unless the fulfillment at Agent receives, on or prior to the Effective Time of the following conditionsClosing Date:
(a) This a legal opinion of the Corporation's counsel addressed to the Agent, the Agent's counsel and the Subscribers in form and substance reasonably satisfactory to the Agent, with respect to such matters as the Agent may reasonably request relating to the offering, issuance and sale of the Convertible Debentures, including, without limitation, that as at the Closing Date:
(i) the Corporation is valid and subsisting under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to carry on its business as now conducted by it and to own its assets and is qualified to carry on business under the laws of each jurisdiction in which it carries on a material portion of its business;
(ii) the Corporation has full corporate power and authority to enter into this Agreement, the Merger Indenture, the Security Agreement and the Subscription Agreements and to perform its obligations set out herein and therein, and this Agreement has been and the Security Agreement, the Subscription Agreements and the transactions contemplated hereby Indenture will, on the Closing Date, be duly authorized, executed and thereby shall delivered by the Corporation and constitute legal, valid and binding obligations of the Corporation enforceable against the Corporation in accordance with their respective terms, subject to applicable bankruptcy, insolvency, moratorium, reorganization and other laws and equitable principles affecting creditors' rights generally, the statutory and equitable powers of the courts in Canada or the United States to stay proceedings before them and the execution of judgments and the fact that specific performance and injunctive relief are equitable remedies which may be ordered by a court in its discretion and, accordingly, may not be available as a remedy in an action to enforce a covenant and subject to the fact that the rights to indemnity, contribution and waiver set forth herein may be limited by applicable laws or the public policy underlying such laws;
(iii) the execution and delivery of this Agreement, the Indenture, the Security Agreement and the Subscription Agreements and the fulfillment of the terms hereof or thereof by the Corporation and the performance of and compliance with the terms of this Agreement, the Indenture, the Security Agreement and the Subscription Agreements by the Corporation do not and will not result in a breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under:
A. any applicable laws of the States of New York or Delaware or the federal laws of the United States applicable therein;
B. any term or provision of the articles, by-laws or resolutions of the directors or shareholders of the Corporation;
C. of which the Corporation's counsel is aware, any of the terms or provisions of any mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Corporation is a party or by which it is bound on the Closing Date; or
D. of which Corporation’s counsel is aware, any judgment, decree or order applicable to the Corporation, which default or breach might reasonably be expected to materially adversely affect the business, operations, capital or condition (financial or otherwise) of the Corporation or its properties or assets.
(iv) the form and terms of the certificates representing the Convertible Debentures have been approved and adopted by the affirmative vote board of directors of the Corporation and conform with applicable law and the constating documents of the Corporation;
(v) the Common Shares to be issued on conversion of the Convertible Debentures have been reserved and allotted for issuance and, when issued upon conversion of the Convertible Debentures will be validly issued, fully paid and non-assessable Common Shares of the Corporation;
(vi) all Applicable Securities Laws of the Selling Jurisdictions and the United States of America in connection with the creation, offering, issuance and sale of the Convertible Debentures and Underlying Securities have been complied with by the Corporation and no registration under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”), is required for the offer and sale of the Convertible Debentures and the issuance of the Underlying Securities upon conversion of the Convertible Debentures, assuming distribution by the Corporation in compliance with the relevant provisions of such Applicable Securities Laws;
(vii) The Security Agreement creates a valid security interest in the Collateral in favor of the Debenture Trustee for the benefit of the Debentureholders to secure the Obligations (as such term is defined in the Security Agreement). Under Article 9 of the Uniform Commercial Code as enacted in the State of New York (the “UCC-NY”), while a debtor is “located” in a jurisdiction, the local law of that jurisdiction governs perfection of a majority security interest granted by such debtor which can be perfected by the filing of a Uniform Commercial Code financing statement. Under the UCC-NY, the Corporation is “located” in the State of Delaware and the Uniform Commercial Code in effect in the State of Delaware (the “UCC-DE”) governs perfection of a security interest granted by such Company which can be perfected by the filing of a Uniform Commercial Code financing statement in the office of the outstanding shares Secretary of ART Common Stock State of the State of Delaware. The Financing Statement is sufficient in form to perfect a security interest of the Debenture Trustee in the Collateral, to the extent a security interest in such Collateral may be perfected under the UCC-DE by filing a financing statement with the Secretary of State of Delaware. Upon proper filing of the Financing Statement with the Secretary of State of Delaware, the Debenture Trustee will have a perfected security interest in the Collateral to the extent that a security interest can be perfected therein by the filing of a financing statement with the Secretary of State of Delaware.
(viii) The choice of Alberta law to govern this Agreement, the Indenture and NRLP Units the Subscription Agreements and the choice of New York law to govern the Security Agreement are valid choices of law under the laws of the States of Delaware and New York and the Province of Alberta and will accordingly be applied by courts in such jurisdictions.
(ix) The State of New York has enacted the Uniform Foreign Country Money Judgments Recognition Act, which appears in the Consolidated Laws of New York at Sections 5301 to 5309. Under those Sections, a judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for (a) taxes, or (b) a fine or other penalty, or (c) in matrimonial or family matters, is conclusive between the parties to the extent that it grants or denies recovery of a sum of money, and the foreign judgment is enforceable in the same manner as the judgment of another state which is entitled to votefull faith and credit but is not conclusive under certain circumstances listed in the statute. In particular, we note that Section 5305(a)(3) of Consolidated Laws of New York provides that a foreign judgment shall not be refused recognition for lack of personal jurisdiction if the defendant prior to the commencement of the proceedings had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved. We also note that the Corporation has agreed to the submission to the jurisdiction of the courts of Alberta under this Agreement, the Indenture and the Subscription Agreements. We are aware of no statutory or judicial authority under New York law that would suggest that the Corporation’s submission to the jurisdiction of the courts of Alberta under such documents would not be given effect in New York. and additionally relating to:
(i) the distribution of the Underlying Securities issuable on conversion of the Convertible Debentures;
(ii) the first trade in the Convertible Debentures and the Common Shares issuable on conversion of the Convertible Debentures; and
(iii) the authorized and issued capital of the Corporation; and as to all other legal matters, in any way connected with the Offering and issuance, sale and delivery of the Convertible Debentures as the Agent may reasonably request. It is understood that the Corporation's counsel may rely on the opinions of local counsel acceptable to it as to matters governed by the laws of jurisdictions other than the jurisdiction of residence of such counsel and on certificates of officers of the Corporation and public officials as to relevant matters of fact.
(b) The waiting perioda certificate of the Corporation dated the Closing Date, if any, applicable addressed to the consummation Agent and signed on the Corporation's behalf by its President or such other officer or director of the Mergers under Corporation satisfactory to the HSR Act shall Agent, acting reasonably, certifying that:
(i) the Corporation has complied with and satisfied in all material respects all covenants and conditions of this Agreement on its part to be complied with or satisfied at or prior to the Closing Time except to the extent same have expired or been terminatedwaived by the Agent;
(cii) The parties hereto shall have the representations and warranties of the Corporation set forth in this Agreement and, where applicable, in the Subscription Agreements are true and correct in all material respects at the Closing Time, as if made at such time;
(iii) no event of a nature referred to in subsection 12(b)(i), (iii), (vi) or (ix) has occurred since the requisite filings with date of this Agreement or to the knowledge of such officer is pending, contemplated or threatened;
(iv) the Corporation has made and/or obtained, at or prior to the Closing Time, all Governmental Entities as shall be required pursuant to applicable lawsnecessary filings, rules approvals, consents and regulationsacceptances under Applicable Securities Laws, and such Governmental Entities, under any applicable agreement or document to which the extent required Corporation is a party or by applicable law, shall have approved which it is bound in respect of the transactions contemplated by execution and delivery of this Agreement; except where Agreement and the failure to obtain any such approval would not, individually or in offering and sale of the aggregate, have a Material Adverse Effect on ART Convertible Debentures and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby; and
(v) no order suspending the sale or ceasing the trading of securities of the Corporation has been issued and no proceedings for that purpose have been instituted or are pending or to the knowledge of such officer are threatened under Applicable Securities Laws;
(c) definitive certificates for the Convertible Debentures subscribed for pursuant to the Offering, registered in such name or names as the Agent shall notify the Corporation in writing not less than 24 hours prior to the Closing Time, provided such certificates registered in such names may, subject to receipt by the Corporation, be delivered in advance of the Closing Date to the Agent or such other parties in such locations as the Agent may direct and the Agent and the Corporation may agree upon;
(d) The Form S-4 shall have become effective in accordance with the provisions executed copies of the Securities Act, Subscription Agreements in form and no stop order suspending such effectiveness shall have been issued substance reasonably satisfactory to the Agent and remain in effectthe Agent's counsel;
(e) No temporary restraining orderpayment of all commissions payable by the Corporation to the Agent pursuant to section 8 and all expenses payable by the Corporation pursuant to section 9, preliminary or permanent injunction or other order or decree provided that such payment may be made by any court of competent jurisdiction which prevents deducting such fees and expenses from the consummation gross proceeds of the Mergers or imposes material conditions Offering in accordance with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree liftedSection 10(b);; and
(f) No action such other matters as may be reasonably requested by the Agent. The foregoing conditions are for the sole benefit of the Agent and may be waived in whole or in part by the Agent at any time and without limitation, and the Agent shall have been takenthe right, and no statute, rule or regulation shall have been enacted, by if any state or Federal government or governmental agency which would prevent the consummation of the Mergers foregoing conditions are not met, on behalf of potential Subscribers, to withdraw all Subscription Agreements delivered and not previously accepted by the Corporation or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Mergerwithdrawn or rescinded by such persons. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time If any of the following additional conditions:
(a) ART shall have performed in all material respects foregoing conditions are not met on or before the Closing Date, the Agent may terminate its agreements contained in obligations under this Agreement and the Merger Agreements required without prejudice to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Coderemedies it may have.
Appears in 2 contracts
Samples: Agency Agreement (Red Mile Entertainment Inc), Agency Agreement (Red Mile Entertainment Inc)
Conditions. Section 8.1 Conditions The Backstop Parties’ obligations to Each Party's Obligation purchase any securities pursuant to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect Basic Commitment and/or the Mergers shall be Backstop Commitment are subject to the fulfillment at following conditions: (i) the execution and delivery of mutually satisfactory definitive documentation among BFE Corp. and the Backstop Parties which incorporates the terms set forth herein (the “Definitive Agreements”); (ii) the satisfaction or prior waiver by the Backstop Parties of the conditions to the Effective Time of the following conditions:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled Backstop Parties’ obligations to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved consummate the transactions contemplated by this Agreementthe Definitive Agreements as may be agreed upon in the Definitive Documents; except where (iii) BFE Corp. shall be in compliance with its obligations under the failure Loan Agreement and all other transaction documents relating to obtain the Bridge Loan in all material respects; (iv) there has not occurred any such approval would notmaterial adverse change, individually or any development involving a prospective material adverse change, since the date hereof in the condition, financial or otherwise, or in the aggregateearnings, have a Material Adverse Effect on ART business, operations or properties of BFE Corp. and NRLP, and their respective Subsidiariesits subsidiaries, taken as a whole, or upon whole (a “Material Adverse Change”); (v) there not having occurred after the consummation date hereof at any time prior to the funding of the transactions contemplated hereby;
(d) The Form S-4 shall have become effective Basic Commitment and/or the Backstop Commitment any material disruption or material adverse change in accordance with the provisions financial, banking or capital markets that, in the commercially reasonable judgment of the Securities ActBackstop Parties, would have a material adverse impact on the success of the Rights Offering; (vi) all required approvals and no stop order suspending such effectiveness consents shall have been issued and remain in effect;
obtained; (evii) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained made by BFE Corp. in this Letter Agreement and the Merger Agreements shall be being true and correct in all material respects on 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 effect; (x) each of the date Executive Management Waiver Agreements (as defined in the 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 the Certificate of this Agreement Designations setting forth the rights and on and as preferences of the Effective Time Series A Convertible Preferred Stock that reflects the terms set forth on Exhibit A hereto and other customary terms and provisions as if made on and as determined by Greenlight in its reasonable discretion; (xiii) the receipt by the Backstop Parties of such datea legal opinion from Cravath, except as contemplated or permitted by this Agreement and the Merger AgreementsSwaine & 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, and NRLP shall have received a certificate memorandum of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required understanding, agreement in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license principle or other agreement relating to any competing plan, proposal, offer or instrument, except those for which failure to obtain such consents transaction with a third party other than Greenlight materially inconsistent with this Letter Agreement; and approvals would not, individually or in (xv) the aggregate, have a Material Adverse Effect on ART or upon the consummation Board of the transactions contemplated hereby;
(c) NRLP Directors of BFE Corp. shall have received the letter of BDO Xxxxxxx, LLP referred to in adopted Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially 16b-3 Resolutions related to the effect that issuance to the NRLP Merger Backstop Parties of Series A Convertible Preferred Stock, Common Stock and warrants, the form of which shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Codesatisfactory to Greenlight in its sole discretion.
Appears in 2 contracts
Samples: Backstop Rights Offering Agreement (BioFuel Energy Corp.), Loan Agreement (BioFuel Energy Corp.)
Conditions. Section 8.1 Conditions This Amendment shall become effective immediately upon, but only at such time, as the Partnership receives any required consent to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be subject enter into this Amendment to the fulfillment at or Unit Purchase Agreement from its senior noteholders, as may be required by the terms of the lockup agreements entered into with such noteholders, so long as such consent is received prior to 5:00 p.m. Eastern Standard Time on Tuesday, March 28, 2006. Notwithstanding the Effective Time of foregoing, this Amendment shall become effective at such time as the following conditions:
(a) This AgreementPartnership and Kestrel mutually agree in writing that this Amendment is effective, the Merger Agreements it being understood that Kestrel and the transactions contemplated hereby and thereby Partnership shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled mutually agree to vote;
(b) The waiting period, such effectiveness if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable lawsnoteholder consent is received after 5:00 p.m. Eastern Standard Time on Tuesday, rules March 28, 2006 and, upon the advice of their respective counsel, Kestrel and regulations, and the Partnership conclude that declaring this Amendment effective at such Governmental Entities, to the extent required by applicable law, shall have approved time would not prevent the transactions contemplated by the Unit Purchase Agreement as amended by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed Amendment from being consummated on or prior to April 30, 2006. The conditions to the Effective Time and the representations and warranties effectiveness of ART this Amendment contained in this Agreement paragraph are collectively referred to herein as the “Conditions.” For the purpose of clarity, in the event that neither of the Conditions in the first two sentences of this paragraph are satisfied, this Amendment shall not become effective and shall be of no further force and effect and the Merger Agreements Unit Purchase Agreement shall be true remain in full force and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement effect without any amendment thereto. Kestrel and the Merger AgreementsPartnership agree to use their reasonable best efforts to work cooperatively with each other, and NRLP shall have received a certificate of appropriate third parties, to pursue ways which would allow Kestrel and the President or of an Executive Vice President of ART Partnership to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with consummate the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in by the aggregate, have a Material Adverse Effect on ART or Unit Purchase Agreement as amended by this Amendment upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Codeits effectiveness.
Appears in 2 contracts
Samples: Unit Purchase Agreement (Kestrel Energy Partners LLC), Unit Purchase Agreement (Star Gas Partners Lp)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- 4.1 The respective obligations of each party to effect the Mergers shall be subject to the fulfillment at or prior to the Effective Time sale and purchase of the following conditionsSale Shares is conditional upon:
(a) This Agreement, 4.1.1 the Merger Agreements Warranties remaining true and the transactions contemplated hereby accurate and thereby shall have been approved and adopted by the affirmative vote of a majority not misleading in all material respects at Completion as if they were deemed repeated at Completion;
4.1.2 each of the outstanding shares Vendors and Xx. Xxxxxx having complied in all material respects with the obligations specified in clause 5 and otherwise having materially performed all of ART Common Stock the covenants and NRLP Units entitled agreements required to votebe performed by him or it under this Agreement;
(b) The waiting period4.1.3 all consents, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired approvals or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required clearances which are necessary being granted by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually governmental or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, official authorities and no statute, rule regulation, court ruling or regulation shall have decision which would prohibit materially, restrict or materially delay the sale and purchase of the Sale Shares or the operation of the Company after Completion having been enactedproposed, enacted or taken by any state governmental or Federal government or governmental agency which would prevent official authority; 17
4.1.4 all Non-Principal Shareholders having satisfied the consummation condition precedent set out in clause 4.1.1 of the Mergers Non-Principal Share Purchase Agreement and all steps for Completion under the Non- Principal Share Purchase Agreement having been completed, save for the obligations of the Purchaser under clauses 5.3.1 and 5.3.2 of the Non-Principal Share Purchase Agreement;
4.1.5 the Optionholders identified in Schedule 1B entering into Option Surrender Agreements and delivery to the Purchaser of the duly executed Option Surrender Agreements;
4.1.6 obtaining and delivering to the Purchaser on or impose material before Completion written consent to the transfer of the Company Shares to the Purchaser pursuant to this Agreement and to the Non-Principal Share Purchase Agreement from TPS Services and Milgo Solutions Limited;
4.1.7 in the reasonable opinion of the Purchaser, there shall not have occurred since the date of this Agreement any Material Adverse Event in relation to the Company and/or its Subsidiaries, other than a Material Adverse Event caused solely by a deterioration in the general economic conditions of France or the UK;
4.1.8 the termination of employment of Xxxxx Xxxxxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxx and Xxxxxxxxx Xxxxxxxxx conditional upon Completion occurring;
4.1.9 none of the HSBC Notes having been converted into shares in the capital of the Company;
4.1.10 delivery to the Purchaser on or before Completion of a letter between the Company and Canal Satellite S.A. confirming the amendments to the contract between them in the terms disclosed to the Purchaser;
4.1.11 the Vendors and Xx Xxxxxx having given notice to the Purchaser that there is to be no further disclosure against the Warranties beyond the Disclosure Letter delivered as at the date of this Agreement or the Purchaser having approved the terms of any supplemental Disclosure Letter contemplated by clause 6.2.1.6, such approval to be at the Purchaser's sole discretion;
4.1.12 the Purchaser receiving the May Management Accounts (as defined in clause 6.2.1.13) which are prepared on a consistent basis with respect theretothe Management Accounts and which show a fair view of the assets and liabilities and profits and losses of the Company and its subsidiaries as at and to 31 May 2001;
4.1.13 an undertaking from the Vendors' Solicitors not to release to any person the OpenTV Certificates (as defined in clause 6.3.2 below) for a period of 40 days after the Completion Date; and
(g) The shares of Newco Common Stock required 4.1.14 a letter dated the Completion Date from BSB to be issued hereunder shall have been the Purchaser in the approved for listing on terms relating to certain confirmation matters and a letter between the New York Stock ExchangeCompany, subject to official notice of issuanceBSB and the other Shareholders amending the Shareholders Agreement.
Section 8.2 Conditions to Obligation 4.2 The Purchaser may waive all or any of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject such conditions at any time by notice in writing to the fulfillment at or prior to Vendors' Solicitors, save that in the Effective Time of event that the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in Purchaser waives Condition 4.1.4, it will complete under both this Agreement and the Merger Agreements required Non-Principal Share Purchase Agreement.
4.3 The Vendors shall use their reasonable endeavours to be performed procure the fulfilment of the Conditions on or prior to before the Effective Time Completion Date.
4.4 The sale and purchase of the Sale Shares is conditional on:
4.4.1 the representations and warranties of ART contained the Purchaser set out in this Agreement and the Merger Agreements shall be Schedule 6 remaining true and correct accurate and not misleading in all material respects on and at Completion as if they were deemed repeated at Completion; and
4.4.2 in the reasonable opinion of the Vendors, there shall not have occurred since the date of this Agreement and on and as any Material Adverse Event in respect of the Effective Time as if made on and as of such date19 Purchaser's Group, except as contemplated other than any Material Adverse Event caused solely by a deterioration in general worldwide economic conditions or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under comprising any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or fluctuation in the aggregate, have price of OpenTV Shares on the NASDAQ National Market (other than as a result of a Material Adverse Effect on ART Event).
4.5 The Vendors acting jointly (and not alone) may waive all or upon the consummation any of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to Purchaser's Conditions in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially clause 4.4 at any time by notice in writing to the effect that Purchaser's Solicitors.
4.6 The Purchaser shall use its reasonable endeavours to procure the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 fulfilment of the CodePurchaser's Conditions on or before the Completion Date.
4.7 In the event that any of the Conditions or Purchaser's Conditions shall not have been fulfilled (or waived pursuant to clauses 4.2 or 4.5) prior to 31 August 2001 then the Purchaser and the Vendors shall not be bound to proceed with the sale or purchase of the Sale Shares, and this Agreement shall cease to be of any effect except clauses 1, 17, 18, 19, 20, 21 and 22 which shall remain in force and save in respect of claims arising out of any antecedent breach of this Agreement.
Appears in 2 contracts
Samples: Principal Share Purchase Agreement (Opentv Corp), Principal Share Purchase Agreement (Opentv Corp)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers Agent hereunder shall be conditional upon the Agent receiving, and the Agent shall have the right on the Closing Date on behalf of Subscribers for Offered Securities to withdraw all Subscription Agreements delivered and not previously withdrawn by Subscribers unless the Agent receives, on or before each Closing Date:
(a) favourable legal opinions of the Corporation’s counsel addressed to the Agent and the Subscribers, in form and substance reasonably satisfactory to the Agent, with respect to such matters as the Agent may reasonably request relating to the offering of the Offered Securities, as applicable, including, without limitation, that:
(i) the Corporation has been duly incorporated in Delaware, is validly subsisting and has all requisite corporate power and authority to carry on its business as now conducted by it and to own its properties and assets and is qualified to carry on business in Delaware;
(ii) the Corporation has full corporate power and authority to enter into this Agreement, the Agent’s Warrants and the Subscription Agreements and this Agreement, the Subscription Agreements and the Agent’s Warrants have been duly authorized by the Corporation and constitute legal, valid and binding obligations of the Corporation enforceable against the Corporation in accordance with their respective terms subject to normal qualifications including those relating to creditors’ rights generally and except that rights to indemnity may be limited by applicable law;
(iii) the execution and delivery of this Agreement, the Agent’s Warrants, and the Subscription Agreements, and the fulfilment of the terms hereof and thereof by the Corporation, and the performance of and compliance with the terms of this Agreement (including, without limitation, the grant of the Over-Allotment Option), the Agent’s Warrants and the Subscription Agreements by the Corporation do not and will not result in a breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under, (i) any laws in the Province of Alberta; (ii) any term or provision of the articles or by laws of the Corporation, or (iii) so far as counsel is aware, any mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Corporation is a party or by which the Corporation is bound on the Closing Date, which might reasonably be expected to materially adversely affect the business, operations, capital or condition (financial or otherwise) of the Corporation or the Corporation’s Subsidiaries (taken as a whole) or its properties or assets;
(iv) all Applicable Securities Laws in connection with the creation, offering, issuance and sale of the Offered Securities and the creation, issuance and delivery of the Agent’s Warrants have been complied with;
(v) in reliance upon a certificate of an officer of the Corporation, except as a result of any agreement to which the Corporation is not a party and of which the Corporation has no knowledge, the Flow-Through Shares, at the time of issuance, will be Flow-Through shares as defined in subsection 66(15) of the Act and will not constitute “prescribed shares” for purposes of Regulation 6202.1 of the Regulations of the Act; and additionally, relating to:
(vi) the first trade in the Offered Securities (including any Over-Allotment Shares issuable upon exercise of the Over-Allotment Option) and the Common Shares received upon exercise of the Agent’s Warrants; and as to all other legal matters as the Agent or Agent’s counsel may reasonably request, including, compliance with Applicable Securities Laws in any way connected with the creation, issuance, sale and delivery of the Offered Securities, the first trade of the Offered Securities and the Common Shares issuable upon exercise of the Agent’s Warrants, being subject to a hold period, including a four month and a day hold period under Applicable Securities Laws in the Selling Jurisdictions (subject to the fulfillment conditions provided for under the Resale Rules). It is understood that the respective counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Alberta, British Columbia, Ontario or Québec and on certificates of officers of the Corporation and the auditors of the Corporation and the registrar and transfer agent of the Common Shares as to relevant matters of fact;
(b) a certificate of the Corporation dated the Closing Date, addressed to the Agent and the Agent’s counsel and signed on the Corporation’s behalf by its Chief Executive Officer and Chief Financial Officer (or other senior officer of the Corporation acceptable to the Agent), certifying that:
(i) the Corporation has complied with and satisfied all terms and conditions of this Agreement on its part to be complied with or satisfied at or prior to the Effective Time Closing Time;
(ii) the representations and warranties of the following conditions:Corporation set forth in this Agreement are true and correct at the Closing Time, as if made at such time except for any increase in the number of issued Common Shares resulting from the exercise of stock options or share purchase warrants referred to in subparagraph 6(u) of this Agreement;
(aiii) This no event of a nature referred to in subparagraphs 12(a), (b), (c) or (d) has occurred or to the knowledge of such officers is pending, contemplated or threatened, excluding with respect to subparagraphs 12(b), (c) and (d) of this Agreement any obligation to make a determination as to the Agent’s opinion; and
(iv) the Corporation has made or obtained on or prior to the Closing Time, all necessary filings, approvals, consents and acceptances of applicable regulatory authorities and under any applicable agreement or document to which the Corporation is a party or by which it is bound, required for the execution and delivery of this Agreement, the Merger Agreements offering and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority sale of the outstanding shares of ART Common Stock Offered Securities and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under other transactions contemplated hereby (subject to completion of filings with certain regulatory authorities following the HSR Act applicable Closing Date, and the Agent shall have expired or been terminatedno knowledge to the contrary;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable lawsdefinitive certificates representing, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation all of the transactions contemplated hereby;
(d) The Form S-4 shall have become effective in accordance with the provisions of the Securities ActOffered Securities, and no stop order suspending such effectiveness shall have been issued and remain in effect;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect applicable Closing Date and registered in such name or names as the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect Agent shall notify the NRLP Merger shall be subject to the fulfillment at or Corporation in writing not less than twenty-four (24) hours prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereofClosing Time; and
(d) NRLP copies of the Subscription Agreements delivered by the Agent and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially duly executed by the Corporation, each in form and substance reasonably satisfactory to the effect that Agent and the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the CodeAgent’s counsel.
Appears in 1 contract
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers This Amendment shall be subject to the fulfillment at or prior to the Effective Time become effective only upon satisfaction in full of the following conditionsconditions precedent:
(a) This AgreementAgent shall have received on or before the First Amendment Closing Date the following, each in form and substance satisfactory to Agent (and, where indicated, the Merger Agreements and applicable Lender) and, unless indicated otherwise, dated as of the transactions contemplated hereby and thereby shall have been approved and adopted First Amendment Closing Date:
(i) counterparts of this Amendment, duly executed by the affirmative vote of a majority of the outstanding shares of ART Common Stock Borrowers and NRLP Units entitled to vote;Lender Group; and
(ii) such other agreements, instruments, approvals, opinions and other documents as Agent or any Lender may reasonably request.
(b) The waiting periodAgent shall have received from the Borrowers, if any, applicable to for the consummation ratable benefit of the Mergers under Term A Lenders, an amendment fee in the HSR Act amount of $400,000, which amendment fee shall have expired or been terminatedbe fully earned as of the date of this Amendment;
(c) The parties hereto several counsel to the members of the Lender Group shall have made received payment, in immediately available funds, of all accrued and unpaid attorneys fees and expenses constituting Lender Group Expenses incurred in connection with this Amendment and the requisite filings with all Governmental Entities transactions contemplated hereunder or reasonably ancillary hereto;
(d) The representations and warranties in this Amendment, the Loan Agreement as amended by this Amendment, and the other Loan Documents shall be required pursuant to applicable lawstrue and correct in all respects on and as of the date hereof, rules and regulations, and as though made on such Governmental Entities, date (except to the extent required by applicable law, that such representations and warranties relate solely to an earlier date);
(e) No Default or Event of Default shall have approved occurred and be continuing on the transactions contemplated by this Agreement; except where the failure to obtain any such approval would notdate hereof, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon nor shall result from the consummation of the transactions contemplated herebyherein;
(df) The Form S-4 shall have become effective in accordance with No injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the provisions consummation of the Securities Act, and no stop order suspending such effectiveness transactions contemplated herein shall have been issued and remain in effect;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree force by any court of competent jurisdiction which prevents governmental authority against Borrowers or the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect theretoLender Group; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement All other documents and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required legal matters in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP by this Amendment shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP been delivered or executed or recorded and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Codein form and substance satisfactory to Agent and its counsel.
Appears in 1 contract
Conditions. Section 8.1 Mutual Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- Precedent
5.1 The respective obligations of each party the Parties hereto to effect complete the Mergers shall transactions contemplated by this Agreement will be subject to the fulfillment at satisfaction, on or prior to before the Effective Time Closing Date, of the following conditionsconditions precedent, each of which may only be waived, in whole or in part, by the mutual consent of the Parties:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired there will not be in force any order or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually decree restraining or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon enjoining the consummation of the transactions contemplated hereby;
(d) The Form S-4 shall have become effective by this Agreement and there will be no proceeding of a judicial or administrative nature or otherwise, brought by a Governmental Entity in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effectterms hereof;
(eb) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall this Agreement will have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, accepted by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect theretoTSXV; and
(gc) The shares of Newco Common Stock required to be issued hereunder shall this Agreement will not have been approved terminated pursuant to Part 8. PhotoChannel shall keep the Vendors informed of progress in relation to the application for listing on acceptance of the New York Stock ExchangeAgreement by the TSXV and shall notify the Vendors in writing as soon as the Agreement has been accepted by the TSXV whereupon, subject to official notice compliance (or waiver by the relevant Party) with any other conditions precedent, then Closing will take place on or before the fifth Business Day after the acceptance by the TSXV. In the event that Closing is delayed because either Party has notified the other in writing pursuant to §5.6 as to the non-compliance with any condition precedent then Closing shall take place on the first Business Day after satisfaction of issuancethe unsatisfied condition precedent.
Section 8.2 Conditions 5.2 The obligations of PhotoChannel to Obligation of NRLP to Effect complete the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall transactions contemplated by this Agreement will also be subject to the fulfillment at or prior fulfilment to the Effective Time reasonable satisfaction of PhotoChannel of each of the following additional conditions:conditions precedent (each of which is for PhotoChannel's exclusive benefit and may be waived, in whole or in part, by PhotoChannel provided that PhotoChannel may not unreasonably withhold or delay its approval as to such satisfaction):
(a) ART shall have performed in all material respects its agreements contained in positive covenants of the Vendors (including the covenants of the Principal Vendors) under this Agreement and the Merger Agreements required to be performed on or prior to before the Effective Time and Closing Date will have been duly performed by each of them in all material respects;
(b) there has been no material breach of the representations and warranties covenants of ART contained the Vendors in this Agreement and §4.1;
(c) the Merger Agreements shall Warranties of the Vendors will be true and correct in all material respects on and as of at the date of this Agreement and on and Closing Date save as of the Effective Time Disclosed) as if made on and as of such date (except to the extent such Warranties speak as of an earlier date, in which event such Warranties will be true and correct in all material respects as of such earlier date, or except as affected by transactions contemplated or permitted by this Agreement Agreement);
(d) the Vendors shall have delivered to the Purchaser all of the documents set out in §7.2 in form satisfactory to the Purchaser;
(e) between the date hereof and the Merger AgreementsClosing Date, and NRLP shall there will not have received occurred a certificate Material Adverse Change to the WorksMedia Business.
5.3 PhotoChannel may not rely on the failure to satisfy any of the President above conditions precedent as a basis for non-compliance by PhotoChannel with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by PhotoChannel in complying with its obligations hereunder.
5.4 The obligations of the Vendors to complete the transactions contemplated by this Agreement will also be subject to the fulfillment to the reasonable satisfaction of the Vendors of the following conditions precedent (each of which is for the exclusive benefit of the Vendors and may be waived in whole or in part by the Vendors, provided that the Vendors may not unreasonably withhold or delay their approval as to such satisfaction):
(a) all positive covenants of an Executive Vice President of ART PhotoChannel under this Agreement to that effectbe performed on or before the Closing Date will have been duly performed by PhotoChannel in all material respects;
(b) ART shall have obtained all Warranties of PhotoChannel under this Agreement will be true and correct in all material respects as of the consent Closing Date as if made on and as of such date (except to the extent such Warranties speak as of an earlier date, in which event such Warranties will be true and correct in all material respects as of such earlier date, or approval of each person whose consent or approval shall be required in connection with the except as affected by transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;permitted by this Agreement); and
(c) NRLP shall between the date hereof and the Closing Date, there will not have received occurred a Material Adverse Change in the letter business of BDO Xxxxxxx, LLP referred PhotoChannel.
5.5 The Vendors may not rely on the failure to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 satisfy any of the Codeabove conditions precedent as a basis for non-compliance by the Vendors with their obligations under this Agreement if the condition precedent would have been satisfied but for a material default by the Vendors in complying with its obligations hereunder.
Appears in 1 contract
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers Closing shall be subject to the fulfillment at satisfaction or prior waiver of the conditions set forth in this Section 3.
3.1. The following are conditions to the Effective Time obligation of the following conditionsTransferors to close the Transactions:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote all of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART Ivanhoe Holdings contained in this Agreement shall have been true and the Merger Agreements correct in all material respects when made and shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effectClosing Date;
(b) ART on Closing, the full amount of the Balance shall have obtained the consent or approval of each person whose consent or approval shall be required been paid in connection accordance with the transactions contemplated hereby under any loan provisions of this Agreement, the Good Faith Deposit shall have been paid to the Deposit Escrowee and Ivanhoe Holdings shall have otherwise complied with or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation performed all of the transactions contemplated hereby;other material terms, covenants or conditions of this Agreement to be complied with or performed by it; and
(c) NRLP the transactions provided for in the Contribution Agreement shall have received been fully completed; provided that if such transactions are not completed as a result of the letter default of BDO Xxxxxxxthe Transferors under the Contribution Agreement this condition shall be deemed to have been satisfied. The conditions contained in this Section 3.1 are intended solely for the benefit of the Transferors. If any of the foregoing conditions is not satisfied on or prior to the Closing Date (or any earlier time, LLP referred if such earlier time is specified in respect of such condition), the Transferors shall have the right, in their sole and absolute discretion, to waive the condition in question and proceed to Closing hereunder or terminate this Agreement by delivering notice of such termination to Ivanhoe Holdings and after such termination neither the Transferors nor Ivanhoe Holdings shall have any further rights or obligations under this Agreement, except for such rights and obligations which expressly survive the termination of this Agreement, unless the reason for the condition not being satisfied is a breach by Ivanhoe Holdings of any its obligations under this Agreement or a representation and warranty made by Ivanhoe Holdings being incorrect or inaccurate, in which case the provisions of Section 7.8 hereof5 shall be applicable.
3.2. The following are conditions to the obligation of Ivanhoe Holdings to close the Transactions:
(a) all of the Transferors’ representations and warranties contained in this Agreement shall have been true and correct in all material respects when made and shall be true and correct in all material respects as of the Closing Date;
(b) on Closing, the Transferors shall have delivered to Ivanhoe Holdings the Contributee Shares subject to no Encumbrances, the Transferors shall have complied with Section 4 in all material respects, and each Transferor shall have otherwise complied with or performed all of the other material terms, covenants and condition of this Agreement to be complied with or performed by it; and
(dc) NRLP and Newco the transactions provided for in the Contribution Agreement shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially been fully completed; provided that if such transactions are not completed as a result of the default of the Ivanhoe Contributee under the Contribution Agreement, this condition shall be deemed to have been satisfied. The conditions contained in this Section 3.2 are intended solely for the benefit of Ivanhoe Holdings. If any of the foregoing conditions is not satisfied on or prior to the effect that Closing Date (or an earlier time, if such earlier time is specified in respect of such condition), Ivanhoe Holdings shall have the NRLP Merger right, in its sole and absolute discretion, to waive the condition in question and proceed to the Closing hereunder or to terminate this Agreement by delivering notice of such termination to the Transferors and after such termination neither the Transferors nor Ivanhoe Holdings shall have any further rights or obligations under this Agreement, except for such rights and obligations which expressly survive the termination of this Agreement, unless the reason for the condition not being satisfied is a breach by any Transferors of any of their obligations under this Agreement or a representation or warranty made by such party being incorrect or inaccurate, in which case the provisions of Section 5 shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Codeapplicable.
Appears in 1 contract
Conditions. Section 8.1 Conditions The Settling Parties agree to Each Party's Obligation to Effect support the Mergersterms and conditions contained herein. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be Settling Parties understand and acknowledge that this settlement is subject to adoption and approval by the fulfillment at or prior Commission. The Settling Parties shall cooperate in submitting this settlement promptly to the Effective Time of the following conditions:
(a) This AgreementCommission for approval so that it may be implemented in a timely manner. Each Settling Party shall make a witness or witnesses available, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entitiesdeemed necessary, to the extent required by applicable law, shall have approved the transactions contemplated by answer questions in support of this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a wholesettlement, or upon provide such other support as the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required Commission requests in connection with the transactions contemplated hereby under hearing on the merits with respect to this matter. The Settling Parties agree to cooperate, in good faith, in the development of any loan such other information as may be necessary to support and explain the basis of this settlement and to develop and supplement the record supporting its approval accordingly. The Settling Parties expressly condition their support of this settlement upon the Commission’s acceptance of all its provisions, without change or credit condition. If the Commission does not accept the provisions in their entirety, without change or condition, any party hereto, at its sole option exercised within fifteen (15) days of such Commission order, may withdraw from this settlement, in which event the settlement shall be deemed to be null and void and without effect and shall not be relied upon by any Settling Party to this proceeding or by the Commission for any purpose. The Commission’s acceptance of this settlement does not constitute continuing approval of, or precedent regarding, any particular principle or issue in this proceeding, but such acceptance does constitute a determination that the terms and conditions set forth herein are consistent with RSA 374-G, result in just and reasonable rates, and are consistent with the public interest. The Settling Parties request that, in its order addressing the approvals recommended in this settlement, the Commission expressly find that those approvals are unique to this case and should not be viewed as having precedential effect with respect to any particular principle or issue in this proceeding for any other case or situation or for any other reasons. The Settling Parties enter into this settlement to avoid further expense, uncertainty, and delay in resolving the matters at issue in this proceeding. By its execution of this settlement agreement, noteno Settling Party shall be deemed to have accepted or consented to the facts, mortgageprinciples, indenturemethods, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or theories employed in arriving at the aggregate, have a Material Adverse Effect on ART or upon the consummation terms of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxxsettlement, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially except to the effect that the NRLP Merger extent expressly set forth in this settlement agreement, no Settling Party shall be treated deemed to have agreed that such terms are or would be appropriate for federal income tax purposes as part of resolving matters at issue in any different proceeding or context. Each Settling Party shall be free to take the same or a transaction that satisfies the requirements of Section 351 different position on any of the Code.issues resolved hereby in any such different proceeding or context. The discussions that produced this settlement have been conducted on the express understanding that all offers of settlement relating thereto are and shall be confidential, shall be Liberty Utilities (Granite State Electric) d/b/a Liberty Utilities Proposed Battery Pilot Project Benefit/Cost Analysis 1 Year 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2033 4 Local Network System (LNS) rate( $/kW-year) $23.57 $24.46 $25.17 $25.42 $26.61 $27.85 $29.14 $30.50 $31.92 $33.41 $34.97 $36.60 $38.30 $40.09 $41.96 5 Avoided Capacity Cost rate ($/kW-year) $100.00 $73.90 $59.90 $57.60 $58.80 $61.20 $65.70 $71.20 $76.90 $82.50 $88.10 $83.90 $82.50 $88.10 $83.90 6 Regional Network System (RNS) Charges $87,750 $92,250 $96,750 $101,250 $105,968 $110,906 $116,075 $121,484 $127,145 $133,070 $105,846 $87,457 $69,157 $51,092 $0 $1,406,199 7 Local Network System (LNS) Charges $17,675 $18,347 $18,876 $19,066 $19,955 $20,884 $21,858 $22,876 $23,942 $25,058 $19,932 $16,469 $13,023 $9,621 $0 $267,581 8 Avoided Capacity Costs $75,000 $55,425 $44,925 $43,200 $44,100 $45,900 $49,275 $53,400 $57,675 $61,875 $50,217 $37,755 $28,050 $21,144 $0 $667,941 9 Total Benefits $180,425 $166,022 $160,551 $163,516 $170,023 $177,691 $187,207 $197,760 $208,762 $220,003 $175,994 $141,680 $110,230 $81,857 $0 $2,341,721 Costs 10 Revenue Requirement - Batteries ($222,944) ($205,447) ($194,668) ($183,107) ($170,984) ($157,475) ($143,958) ($132,190) ($120,419) ($106,905) $0 $0 $0 $0 $0 ($1,638,097) 11 Revenue Requirement - Cell Based Meters ($7,549) ($7,200) ($6,917) ($6,632) ($6,348) ($6,062) ($5,776) ($5,490) ($5,199) ($4,906) ($4,614) ($4,322) ($4,029) ($3,737) $0 ($78,782) 12 Monthly Cellular Reading Cost ($6,000) ($6,000) ($6,000) ($6,000) ($6,000) ($6,000) ($6,000) ($6,000) ($6,000) ($6,000) ($5,700) ($5,400) ($5,100) ($4,800) $0 ($81,000) 13 Cogsdale Programming Costs ($102,185) $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 ($102,185) 14 NEM Credit for battery ($15,782) ($15,309) ($14,835) ($14,362) ($13,888) ($13,415) ($12,941) ($12,468) ($11,994) ($11,521) ($10,495) ($9,517) ($8,585) ($7,702) $0 ($172,814) 15 Meter MV-90 Programming Costs ($107,500) $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 ($107,500) 16 Total Costs ($461,960) ($233,956) ($222,420) ($210,101) ($197,220) ($182,952) ($168,675) ($156,148) ($143,612) ($129,333) ($20,809) ($19,238) ($17,715) ($16,239) $0 ($2,180,378) 17 Net Benefit to All Customers ($281,535) ($67,935) ($61,869) ($46,585) ($27,197) ($5,261) $18,532 $41,612 $65,150 $90,670 $155,185 $122,442 $92,515 $65,618 $0 $161,343 Net Present Value Calculation 18 Required Rate of Return 7.69% 19 Net Present Value of Option ($138,037) 20 Net Present Value of Benefits $1,432,205 21 Net Present Value of Costs ($1,570,241) 1 Year of installation 2 Total units in pilot 3 Based on ISO-NE forecast 4 Based on previous bills from National Grid 5 AESC 2018 Wholesale Capacity Values Cleared (FCA price), column j on p 273 6 Line 3 x amount of kW reduced 7 Line 4 x amount of kW reduced 8 Line 5 x amount of kW reduced at ISO NE concident peak 9 Sum of lines 3 through 8
Appears in 1 contract
Samples: Settlement Agreement
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be subject to the fulfillment at or prior to the Effective Time of the following conditions3.1 Completion is conditional upon:
(a) This Agreementthe Purchaser notifying the Vendor in writing that it is satisfied in reliance on the Warranties and upon having completed its due diligence (including without limitation, legal, financial and commercial aspects) in respect of the Merger Agreements Company referred to in Clause 3.3 below and the transactions contemplated hereby and thereby shall have been approved and adopted by results of which are, in the affirmative vote of a majority absolute opinion of the outstanding shares of ART Common Stock Purchaser, satisfactory and NRLP Units entitled acceptable to votethe Purchaser in all respects;
(b) The waiting periodapproval, if anynecessary, applicable to by the consummation eligible shareholders of the Mergers under Purchaser to approve the HSR Act shall have expired or been terminatedtransaction in this Agreement and the Consideration Shares contemplated to be issued in this Agreement;
(c) The parties hereto shall have made the requisite filings with Vendor having obtained all Governmental Entities as shall be required pursuant to applicable laws, rules necessary consents and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved approvals for the transactions contemplated by under this Agreement; except where Agreement (if required) from the failure to obtain any such approval would not, individually relevant governmental or regulatory authorities in Australia or elsewhere under the aggregate, have a Material Adverse Effect on ART relevant applicable laws and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated herebyregulations;
(d) The Form S-4 shall have become effective the Purchaser having obtained all necessary consents and approvals for the transactions contemplated under this Agreement (if required) from the relevant governmental or regulatory authorities in accordance with Australia or elsewhere under the provisions of the Securities Act, relevant applicable laws and no stop order suspending such effectiveness shall have been issued and remain in effectregulations;
(e) No temporary restraining order, preliminary the Vendor and or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation Company having complied with its pre-Completion obligations specified in Clause 8 and otherwise having performed all of the Mergers or imposes material conditions with respect thereto shall have been issued covenants and remain in effect (each party agreeing agreements required to use its reasonable efforts to have any such injunction, order or decree lifted);be performed under the Agreement; and
(f) No action shall have been taken, the Warranties remaining true and no statute, rule or regulation shall have been enacted, by accurate and not misleading in any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing as if repeated on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment Completion Date and at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of times between the date of this Agreement and on the Completion Date.
3.2 In relation to Clause 3.1(a), the Company shall give and as shall procure that the Purchaser and/or any persons authorized by it in writing will be given such access to the premises and all books, documents, title deeds, records, returns, approvals, correspondence and accounts of the Effective Time Company and all such information relating to the Company as if made may be reasonably requested by or on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate behalf of the President Purchaser to undertake and conduct a full due diligence (including but without limitation, in all legal, financial and commercial aspects) against the Company and be permitted to take copies of any books, documents, title deeds, records and accounts and that the directors and employees of all members of the Company shall be instructed to give promptly all such information and explanations to any such persons as aforesaid as may be requested by it or them. For the avoidance of an Executive Vice President doubt, such due diligence shall not limit or otherwise qualify in any way the obligations and liabilities of ART the Vendor under Clause 7.
3.3 The Purchaser may at any time by notice in writing to that effect;
the Vendor waive any of the conditions set out in Clause 3.1. If (a) any of the conditions set out in Clause 3.1 has not been satisfied (or as the case may be, waived by the Purchaser) on or before 5:00 p.m. on the Long Stop Date or such later date as the Purchaser may agree; or (b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection Purchaser is not satisfied with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation results of the transactions contemplated hereby;
(c) NRLP shall have received due diligence conducted according to Clause 3.2 and informs the letter of BDO XxxxxxxVendor in writing at any time, LLP referred to in Section 7.8 hereof; and
(d) NRLP this obligations and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated liabilities hereunder save for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 any antecedent breaches of the Codeterms hereof.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (Integrated Media Technology LTD)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect The Amendments set forth below shall become effective on the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect date when the Mergers shall be subject to the fulfillment at or prior to the Effective Time Bank receives all of the following conditions:documents in form and content satisfactory to the Company and the Bank ("Effective Date"):
1. The Replacement Revolving Note (aas defined in B.2 below) This Agreementdated the Effective Date and executed by the Company and with all blanks appropriately completed.
2. A favorable counsel opinion from Jaecxxx Xxxixxxxxxx & Xugel LLP in form and content satisfactory to Bank and its counsel, dated as of the Effective Date, as to, among other things, the Merger Agreements due authorization, execution and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote delivery of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(bi) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required Replacement Revolving Note by the Company, and (ii) the Guaranties by the Guarantors; the good standing and authority to be performed on or prior to transact their business of the Effective Time Company and the representations Guarantors; that there are no violations of the Company's organization documents, other material agreements, or any law or court decree, and warranties no material litigation or any litigation questioning the validity of ART contained the Credit Agreement, this Agreement, the Revolving Note or the Replacement Revolving Note; that no consent, filing, license, authorization, registration or filing is required with any court or governmental authority in connection with the execution and performance of this Agreement Agreement, the Guaranties or the Replacement Revolving Note; and such other matters as the Merger Agreements shall be true and correct in all material respects on and as Bank or its counsel may reasonably request.
3. Within thirty (30) days of the date of this Amendment No. 2 to Credit Agreement dated March 29, 1996, as amended the following:
A. Guaranties in form and on and as substance satisfactory to the Bank from each of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate following entities of the President or indebtedness of an Executive Vice President the Company to Bank and of ART any indebtedness of any of their subsidiaries to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or Bank in the aggregate, have a Material Adverse Effect on ART or upon the consummation respective amounts set forth below for each such entity: Guarantor Amount --------- ------ API Heat Transfer Inc. $17,180,000 API Motion Inc. $ 6,600,000 API Electronic Components Inc. $ 3,885,000
B. Guaranties from each of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 following entities of the Code.indebtedness of the Company to Bank in the amounts set forth below for each such entity: Guarantor Amount --------- ------ API Bascx Xxx. $4,850,000 API Airtech Inc. $ 750,000 API Ketema Inc. $5,250,000 API Controls Inc. $1,100,000 API Deltran Inc. $1,000,000 API Gettxx Xxx. $2,200,000 API Harowe Inc. $2,300,000 API Delevan Inc. $1,050,000 API SMD Inc. $1,500,000
Appears in 1 contract
Samples: Credit Agreement (American Precision Industries Inc)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- (a) The respective obligations obligation of each party Investor to effect purchase and acquire the Mergers Investor Shares hereunder shall be subject to the fulfillment at or prior to the Effective Time of the following conditionsconditions that:
(a1) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the All representations and warranties and other statements of ART contained in this Agreement and the Merger Agreements Company shall be true and correct in all material respects as of and on and as each of the date of this Agreement and on the date of the Closing;
(2) The Company shall have performed all of its obligations hereunder theretofore to be performed;
(3) The Prospectus 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, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, and the Investor shall have received the Prospectus in accordance with the federal securities laws;
(4) The Company shall have executed and delivered that certain Funding and Royalty Agreement, by and between the Company and Deerfield ED Corporation (“ED”), of even date herewith (the “Funding and Royalty Agreement”); and
(5) The Company shall have shall have executed and delivered that certain Option and Put Agreement, by and between the Company ED and the Investors, of even date herewith (the “Option and Put Agreement”).
(b) The obligation of the Company to enter into this Agreement shall be subject to the conditions that:
(1) All representations and warranties and other statements of the Investors shall be true and correct as of and on each of the Effective Time as if made on and as date of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate date of the President or of an Executive Vice President of ART to that effectClosing;
(b2) ART The Investors shall have obtained the consent or approval performed all of each person whose consent or approval shall its obligations hereunder theretofore to be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated herebyperformed;
(c3) NRLP ED shall have received executed and delivered the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereofFunding and Royalty Agreement; and
(d4) NRLP The Investors and Newco ED shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to executed and delivered the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the CodeOption and Put Agreement.
Appears in 1 contract
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be subject to the fulfillment at or prior to the Effective Time of 3.01 Completion is conditional upon the following conditions:conditions being satisfied on or before 31 December 2007 (the “Longstop Date”):
(a) This Agreementthe obtaining in terms acceptable to the Purchaser, of all consents, approvals, clearances and authorisations of any relevant governmental authorities or other relevant third parties in Japan, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority PRC or any other part of the outstanding shares world as may be necessary for the execution and implementation of ART Common Stock and NRLP Units entitled to votethis Agreement;
(b) The waiting periodthe Target Companies receiving all relevant consents and approvals from third parties as may be necessary in connection with the proposed change in shareholding of the Target Companies so as to ensure that the Target Companies maintains all its existing contractual and other rights following the transfer of the Sale Interests (including, if anywithout limitation, applicable the consent of the existing bankers of the Target Companies to continue to provide the existing banking facilities to the consummation Target Companies following the transfer of the Mergers under the HSR Act shall have expired or been terminatedSale Interests);
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules passing at an extraordinary general meeting of the Vendor of ordinary resolution(s) approving this Agreement and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where Agreement by the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation shareholders of the transactions contemplated herebyVendor (excluding such shareholders who shall be required to abstain from voting under the Listing Rules);
(d) The Form S-4 shall have become effective in accordance with the provisions passing at an extraordinary general meeting of the Securities Act, Purchaser of ordinary resolution(s) approving this Agreement and no stop order suspending the transactions contemplated by this Agreement by the shareholders of the Purchaser (excluding such effectiveness shareholders who shall have been issued and remain in effect;be required to abstain from voting under the Listing Rules); and
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation completion of the Mergers or imposes material conditions with Jetup Agreement becoming unconditional in all respects (save in respect thereto shall of any condition relating to completion of this 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 issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuancesatisfied.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and If at any time the Merger Agreements required to be performed on Vendor becomes aware of a fact or prior to circumstance that might prevent a Condition being satisfied, it will immediately inform the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;Purchaser.
(b) ART shall have obtained If at any time the consent Purchaser becomes aware of a fact or approval of each person whose consent or approval shall be required in connection with circumstance that might prevent a condition being satisfied, it will immediately inform the transactions contemplated hereby under Vendor.
3.04 If any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall Conditions have received not been satisfied on or before the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP Longstop Date then this Agreement will immediately terminate and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 all rights and obligations of the Codeparties shall cease immediately upon termination.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Nam Tai Electronics Inc)
Conditions. CTI’s obligation to close will be conditioned on:
A. After review of the additional due diligence information pursuant to Section 8.1 Conditions V, supra, F.O.H. will confirm in writing that (i) it has had a full opportunity to Each Party's Obligation ask questions, conduct due diligence and request information from CTI and its officers and directors, (ii) all inquiries and requests for information have been answered to Effect FOH’s satisfaction, (iii) the Mergersadditional confidential due diligence information provided hereunder is incorporated herein and modifies or constitutes exceptions to CTI’s representations and warranties hereunder, and (iv) it ratifies this Agreement and intends to proceed with the Closing.
B. Any approval, review or on-boarding requirement of Templum shall have been received.
C. The parties acknowledge that the Schedule of Merger Costs and some other exhibits have not been completed or annexed to this Agreement. ----------------------------------------------------------- Closing is contingent on completion of the Schedule of Merger Costs and all exhibits to F.O.H.’s satisfaction.
D. The respective parties shall have provided for any contingent liability of Jxxxx Xxxxxxx arising from the Good Gxx Xxxxxxxx of Lease dated November 11, 2021 (the “GGG”) in respect of that certain Agreement of Lease by and between CTI and 1201 Broadway LLC, (the “Lease”) either by
(i) FOH establishing a segregated escrow account of $172,000 (the “Escrow Account”) for the purpose of covering all CTI’s remaining obligations under the Lease, with funds remaining in the Escrow Account in excess of the aggregate amount payable under the Lease returned to the Surviving Corporation from time to time;
(ii) CTI’s notifying the landlord of the “Surrender Date” under the GGG and satisfying all relating obligations of each party the Company thereunder including vacating the leased premises; or
(iii) FOH coming to effect satisfactory terms with the Mergers shall be subject landlord to assume the fulfillment at or prior to the Effective Time Lease with termination of the following conditions:GGG. No course of action set forth in (i), (ii) or (iii) shall in any way excuse Surviving Corporation’s obligations under the lease.
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby E. The transaction shall have been approved by CTI’s shareholders as required by law and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock under CTI’s constitutive and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers Series A documents including such consents or waivers under the HSR Act shall have expired SAFE instruments as the CTI board may deem necessary or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuancedesirable.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
Appears in 1 contract
Samples: Acquisition Agreement (Collectable Sports Assets, LLC)
Conditions. Section 8.1 Conditions In addition to Each Party's Obligation any other conditions to Effect the Mergers. ----------------------------------------------------------- The respective obligations Loan set out in this Agreement, PFG will not make any Loan until PFG shall have received, in form and substance reasonably satisfactory to PFG, such documents, and completion of each party to effect the Mergers such other matters, as PFG may reasonably deem necessary or appropriate, including that there shall be subject no discovery of any facts or circumstances which would, as determined by PFG in its sole discretion, negatively affect or be reasonably expected to negatively affect the collectability of the Obligations, PFG’s security interest in Borrower’s Collateral or the value thereof, including, without limitation, with respect to the fulfillment at or prior initial Loan, the conditions set forth in clauses (a) through (q), below, and with respect to each subsequent Loan, the conditions set forth in clauses (a), (f) (to the Effective Time of extent required in order for the following conditions:Representations to be true, correct, complete, accurate and current), (l) and (p):
(a) This Agreement, duly executed original signatures of Borrower to the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of Loan Documents to which Borrower is a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to voteparty;
(b) The waiting period, if any, applicable Borrower’s respective constitutional documents and a good standing certificate of Borrower certified by the Secretary of State of the State of Delaware as of a date no earlier than thirty (30) days prior to the consummation date hereof, together with a foreign qualification certificate from the State of the Mergers under the HSR Act shall have expired or been terminatedMinnesota;
(c) The parties hereto shall have made duly executed original signatures to borrowing resolutions for Borrower and resolutions authorizing the requisite filings with all Governmental Entities issuance of the Warrant, the Warrant Stock (as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or defined in the aggregate, have a Material Adverse Effect on ART Warrant) and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated herebyConversion Stock;
(d) The Form S-4 shall have become effective account control agreements as required by Section 8(b) of this Schedule, duly executed by Borrower and each relevant depositary institution in accordance with the provisions favor of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effectPFG;
(e) No temporary restraining ordercertified copies, preliminary dated as of a recent date, of financing statement searches, as PFG shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain or, in effect (each party agreeing to use its reasonable efforts to have any such injunctionconnection with the Loan, order will be terminated or decree lifted)released;
(f) No action shall have been takenthe Representations, duly executed by Borrower,
(g) a landlord consent executed in favor of PFG by the Borrower’s principal office lessor in respect of Borrower’s premises;
(h) if Borrower’s constitutional documents or stockholders agreements include a redemption right at the option of stockholders, which right would become exercisable while any Loan is outstanding, the written waiver of such right by the requisite stockholders until such time as all Obligations are indefeasibly paid and discharged.
(i) a duly executed warrant in the name of PFG to purchase 147,330 shares of Borrower’s Common Stock (collectively, the “Warrant”);
(j) the insurance policies and/or endorsements required pursuant to Section 4.3;
(k) payment of the Fee specified in Section 3 of this Schedule and PFG’s expenses incurred in connection with the Loan;
(l) a duly executed Compliance Certificate dated the date hereof;
(m) the closing of the amendment to the Senior Loan Documents;
(n) as and when required by PFG, a subordination agreement with the Pearland Economic Development Corporation in respect of relative priorities of liens, to which PFG has agreed with Borrower to subordinate, and no statuterepayment in respect of Collateral associated with Borrower’s planned manufacturing facility in Pearland, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation Texas;
(o) closing of the Mergers Loan on or impose material conditions before April 14, 2010;
(p) an opinion of counsel in form satisfactory to Borrower and its counsel that the Note issued concurrently with respect theretoexecution of this Agreement and the Conversion Stock (when issued upon conversion of the Notes) will be exempt from registration under the Securities Act; and
(gq) The shares of Newco Common Stock required to be issued hereunder Senior Lender and PFG shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time entered into a subordination agreement in respect of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement relative priorities of their liens and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Coderepayment.
Appears in 1 contract
Samples: Loan and Security Agreement (Cardiovascular Systems Inc)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party the Parties to effect consummate the Mergers Arrangement shall be subject to the fulfillment at or prior to the Effective Time satisfaction of the following conditionsconditions on or before the Effective Date, each of which may only be waived with the mutual consent of the parties:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby Arrangement shall have been approved and adopted by the affirmative vote of a majority of Etruscan Shareholders at the outstanding shares of ART Common Stock and NRLP Units entitled to voteEtruscan Meeting in the manner required by applicable Laws (including any conditions imposed by the Interim Order);
(b) The waiting periodthe Interim Order and the Final Order shall each have been obtained in form and on terms satisfactory to each of Endeavour and Etruscan, if anyacting reasonably, applicable and shall not have been set aside or modified in a manner unacceptable to the consummation of the Mergers under the HSR Act shall have expired such parties, acting reasonably, on appeal or been terminatedotherwise;
(c) The parties hereto all notices required to be delivered to Etruscan Optionholders and Etruscan Warrantholders in connection with this Agreement and the Arrangement shall have made been delivered and all actions or steps required to be taken by the requisite filings Board of Directors of Etruscan to enable the Etruscan Options and Etruscan Warrants to be terminated and replaced with all Governmental Entities as Replacement Options and Replacement Warrants shall have been taken;
(d) the TSX shall have conditionally approved the issuance and listing of the Endeavour Common Shares to be issued pursuant to the Arrangement and upon the due exercise of the Replacement Warrants and the Replacement Options, and the listing of the Replacement Warrants issued in respect of Etruscan Warrants which were listed immediately prior to the Effective Time;
(e) no provision of any applicable Laws and no judgment, injunction, order or decree shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to in effect which restrains or enjoins or otherwise prohibits the extent required by applicable law, shall have approved consummation of the Arrangement or the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);and
(f) No action this Agreement shall not have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions terminated in accordance with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuanceits terms.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
Appears in 1 contract
Samples: Arrangement Agreement
Conditions. Section 8.1 Conditions to Each Party5.1 e-VideoTV's Obligation to Effect the MergersConditions. ----------------------------------------------------------- The respective obligations of each party e-VideoTV to effect complete the Mergers shall be transactions contemplated hereby are subject to the fulfillment at following conditions (which are for the exclusive benefit of e-VideoTV) having been satisfied or prior expressly waived in writing by e- VideoTV on or before the Closing Date or such other date as may be specified in this Section 5.1, and Ziracom will use its commercially reasonable best efforts to the Effective Time of the following conditionsensure that such conditions are fulfilled:
(a) This Agreement, Ziracom will have delivered the Merger Agreements and disclosure schedule to this Agreement (the transactions contemplated hereby and thereby "Disclosure Schedule"). e-VideoTV shall have been approved seven (7) days after its receipt of the Disclosure Schedule to determine, in its sole discretion, if it shall accept the representations and adopted warranties as modified by the affirmative vote of a majority Schedules. If e-VideoTV determines that any part of the outstanding shares of ART Common Stock and NRLP Units entitled Schedules are unacceptable, e-VideoTV may provide Ziracom additional time to vote;remedy the matter or may terminate this Agreement in accordance with the termination provisions hereunder.
(b) The waiting period, if any, applicable to the consummation All representations and warranties of the Mergers under the HSR Act Shareholders and Ziracom contained in this Agreement shall have expired or been terminated;true in all respects when made on the date of execution of this Agreement, and also at and as of the Closing Date as if such representations and warranties were made at and as of the Closing Date. Ziracom shall furnish e-VideoTV with a certificate, dated the Closing Date and signed on behalf of Ziracom by a duly authorized officer thereof stating the above in such form as e-VideoTV may reasonably request.
(c) Ziracom and the Shareholders shall hav performed and complied with all agreements, terms and conditions required by this Agreement to be performed or complied with by them, and Ziracom shall deliver a certificate, in form and substance satisfactory to e-VideoTV, to that effect, dated the Closing Date.
(d) The parties hereto Shareholders shall deliver to e- VideoTV the Ziracom Shares free and clear of any liens, encumbrances and other obligations.
(e) Ziracom shall have made no contingent or other liabilities connected with its business, except as disclosed in its financial statements. The review of the requisite filings with all Governmental Entities as business, premises and operations of Ziracom and the financial statements by e-VideoTV at its expense shall be required pursuant to applicable lawsnot have revealed any matter which, rules and regulationsin the commercially reasonable judgment of e-VideoTV, and such Governmental Entitiesmakes the transaction on the terms herein set forth inadvisable for e-VideoTV.
(f) There shall exist no injunction or final judgment, to law or regulation prohibiting the extent required by applicable law, shall have approved consummation of the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually . Any required governmental or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness regulatory consents shall have been issued and remain in effect;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; andobtained.
(g) The shares There shall not have occurred any material adverse change in the assets, business, condition or prospects of Newco Common Stock required to be issued hereunder Ziracom.
(h) Ziracom shall have been approved for listing on the New York Stock Exchangeprovided, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on e- VideoTV's full satisfaction, evidence that Ziracom's technology performs both as advertised and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART stated to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Codee- VideoTV.
Appears in 1 contract
Conditions. Section 8.1 6.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall will be subject to the fulfillment or waiver by both parties at or prior to the Effective Time Closing Date of the following conditions:
(a) This Agreement, the Smith's Merger Agreements and the transactions contemplated hereby and thereby Fred Meyer Merger shall each have been approved and adopted in the manner required by applicable law by the affirmative vote of a majority respective holders of the issued and outstanding shares of ART Common Stock capital stock of Smith's and NRLP Units entitled to voteof Fred Meyer;
(b) The waiting period, if any, period applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The Neither of the parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant subject to applicable lawsany order, rules and regulationsdecree, ruling or injunction of a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, and such Governmental Entities, to the extent required by applicable no law, statute, rule or regulation shall have approved the transactions contemplated been promulgated or enacted by this Agreement; except where the failure to obtain any such approval would nota governmental or regulatory authority, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon which prohibits the consummation of the transactions contemplated herebyby this Agreement or would otherwise impair the ability of Holdings to operate the business of Smith's and Fred Meyer on a consolidated basis following the Closing;
(d) The Form S-4 shall have become effective in accordance with and shall be effective at the provisions of the Securities ActEffective Time, and no stop order suspending such effectiveness of the Form S-4 shall have been issued, no action, suit, proceeding or investigation by the SEC to suspend the effectiveness thereof shall have been initiated and be continuing or, to the knowledge of Fred Meyer or Smith's, be threatened in writing, and all necessary approvals under state securities laws relating to the issuance or trading of Holdings Common Stock to be issued to Smith's and remain Fred Meyer stockholders in effectconnection with the Mergers shall have been received;
(e) No temporary restraining orderAll consents, preliminary licenses, permits, authorizations, orders and approvals of (or permanent injunction filings or other order registrations with) any governmental or decree by any court regulatory authorities required in connection with the execution, delivery and performance of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto this Agreement shall have been issued obtained or made, except for filings in connection with the Mergers and remain in effect (each party agreeing any other documents required to use its reasonable efforts be filed after the Effective Time and except where the failure to have obtained or made any such injunctionconsent, order license, permit, authorization, order, approval, filing or decree lifted)registration would not have a Material Adverse Effect on Holdings following the Effective Time;
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Holdings Common Stock required to be issued hereunder to Smith's and Fred Meyer stockholders in connection with the Mergers shall have been approved for listing on the New York Stock ExchangeNYSE, subject only to official notice of issuance; and
(g) After the Effective Time, no Person will have any right under any stock option plan (or any option granted thereunder) or other plan, program or arrangement to acquire any equity securities of Smith's, Fred Meyer or any of their respective Subsidiaries.
Section 8.2 6.2 Conditions to Obligation of NRLP Smith's to Effect the NRLP MergerMergers. ---------------------------------------------------------- The obligation of NRLP Smith's to effect the NRLP Merger shall Mergers will be subject to the fulfillment or waiver by Smith's at or prior to the Effective Time Closing Date of the following additional conditions:
(a) ART Fred Meyer shall have performed and complied in all material respects its with all material obligations and agreements required to be performed and complied with by it under this Agreement at or prior to the Closing Date;
(b) The representations and warranties of Fred Meyer contained in this Agreement that are qualified as to materiality shall be true and the Merger Agreements required to be performed on or prior to the Effective Time correct, and the such representations and warranties of ART contained in this Agreement and the Merger Agreements Fred Meyer that are not so qualified shall be true and correct in all material respects on and respects, in each case both as of the date of this Agreement and on and the Closing Date as of the Effective Time as if though made on and as of the Closing Date, except to the extent such representations and warranties are expressly made as of an earlier date, in which case, such representations and warranties shall be true and correct as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP ;
(c) Smith's shall have received a certificate of from the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreementFred Meyer, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation dated as of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO XxxxxxxClosing Date, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger conditions set forth in paragraphs (a) and (b) above have been satisfied;
(d) From the date of this Agreement through the Effective Time, a Material Adverse Effect with respect to Fred Meyer shall not have occurred;
(e) Holdings shall have duly executed the Supplemental Warrant Agreement and, upon the execution by the other parties thereto, such agreement shall be in full force and effect as of the Effective Time;
(f) Smith's shall have received on the Closing Date a legal opinion from its tax counsel, Latham & Watkins, substantially to the effect that, on the basis of the facts, representations and assumptions set forth in such opinion, the Fred Meyer Merger, taken together with the Smith's Merger, will be treated for federal income tax purposes as part of a transaction that satisfies the requirements of an exchange under Section 351 351(a) of the Code;
(g) Smith's shall have received on the Closing Date a legal opinion from counsel to Fred Meyer (which counsel shall be reasonably acceptable to Smith's) in substantially the form attached hereto as Exhibit G; and
(h) Holdings shall have duly executed the Registration Rights Agreement and the New Management Agreement and, upon execution by the other parties thereto, such agreements shall be in full force and effect as of the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (Meyer Fred Inc)
Conditions. Section 8.1 3.1 Completion is conditional upon the following Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be subject being fulfilled to the fulfillment at or prior to the Effective Time satisfaction of the following conditionsInvestors or waived by the Investors in writing in accordance with this Agreement, on or before the Completion Date:
(a) This Agreementthe waiver of all pre-emption rights over the Subscription Shares from the Founders, the Merger Agreements Employee Shareholder and Biz Cloud Parties for the issue by the Company and the transactions contemplated hereby and thereby shall have been approved and adopted subscription by the affirmative vote of a majority Investors of the outstanding shares of ART Common Stock Subscription Shares has been obtained and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules is continuing in full force and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval Shareholders’ Agreement having been duly executed by each of each person whose consent or approval shall be required in connection with The Mearas Venture, The Wings Venture, the transactions contemplated hereby under any loan or credit agreementFounders, notethe Employee Shareholder, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents Biz Cloud Parties and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation members of the transactions contemplated herebyGroup;
(c) NRLP shall have received all relevant authority and body having given all consents, approvals, clearances or authorisations necessary or desirable for the letter Completion (if any);
(d) adoption by the Company of BDO Xxxxxxxthe Restated Articles as of the Completion Date to give full effect to, LLP referred inter alia, creation of the new Series A Preferred Shares and the attached rights;
(e) the passing of the necessary board and shareholders’ resolutions of the Company approving the terms and the execution of the Transaction Documents, the adoption of the Restated Articles, and the transactions contemplated in or accidental to this Agreement, in Section 7.8 hereofa form to the satisfaction of the Investors;
(f) there being no third party that has:
(i) instituted or threatened any action or investigation to restrain, prohibit or otherwise challenge the issuance of the Subscription Shares or any of the transactions contemplated under the Transaction Documents; and
(dii) NRLP threatened to take any action as a result of or in anticipation of the implementation of the transactions contemplated under the Transaction Documents;
(g) there having been no Material Adverse Change, or any development likely to involve a prospective Material Adverse Change since the date of this Agreement until Completion;
(h) there having been no breach by any Group Company of any of the Warranties, and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially the Warranties remaining true and accurate in all material respects and not misleading in any material respect as at Completion by reference to the effect facts and circumstances subsisting as at Completion; and
(i) completion of the due diligence review (including discussion with auditors of the Group and Biz Cloud Investments Limited) and that the NRLP Merger shall be treated for federal income tax purposes as part results of a transaction that satisfies the requirements of Section 351 such due diligence review have not revealed or disclosed any matter, fact or circumstance which in reasonable opinion of the CodeInvestors constitutes any material breach of any of the Warranties or other provisions of this Agreement by the Company.
3.2 The Investors may at any time by notice in writing to the Company waive any of the Conditions. If any of the Conditions is not fulfilled or waived by all the Investors at or before 5:00 p.m. on the Long Stop Date, this Agreement shall automatically terminate with immediate effect.
3.3 Each Party must co-operate with the other and do all things reasonably necessary to procure that the Conditions are fulfilled.
3.4 The Conditions Precedent are for the benefit of the Investors, and may only be waived in writing by all the Investors.
3.5 If:
(a) any of the Conditions are not fulfilled on or before the Completion Date; or
(b) any clearance or authorisation required under any of the Conditions is not granted on terms acceptable to the Investors; or
(c) a Party becomes aware that a Condition cannot be satisfied, and in each of the cases above, not all the Investors are willing to waive the Condition(s) in accordance with Clause 3.4, then the Parties may terminate this Agreement by seven days’ notice to the other Parties.
3.6 If this Agreement is terminated under this Clause 3, Clause 4 or Clause 5, except for this Clause 3, together with Clauses 1 (Interpretation), 8 (Confidentiality), 9 (Notices), 10 (Costs and Expenses), 12 (Entire Agreement), 17 (Law and Jurisdiction), 18 (General) and 19 (Third Party Interest), which will survive the termination of this Agreement, this Agreement will be null and void and of no effect, save that the termination of this Agreement from any cause shall not release any Party from any liability which at the time of termination has already accrued.
Appears in 1 contract
Samples: Subscription Agreement
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of the Underwriters hereunder as to the Offer Shares to be delivered at each party to effect the Mergers Time of Delivery, shall be subject to the fulfillment at or prior to the Effective Time of the following conditions:
(a) This Agreementsubject, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entitiesin their discretion, to the extent required by applicable lawcondition that all representations and warranties and other statements of the Company and the Selling Shareholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and each of the Selling Shareholders shall have approved the transactions contemplated by this Agreement; except where the failure performed all of their respective obligations hereunder theretofore to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLPbe performed, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART The Prospectus shall have performed been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or prior any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Effective Representatives’ reasonable satisfaction;
(b) Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, US special counsel for the Underwriters, shall have furnished to you their legal opinion and disclosure letter, dated such Time of Delivery, in form and substance satisfactory to you, with respect to the representations matters covered in paragraphs (e) and warranties (g) of ART contained Annex 3-B hereto (to the extent applicable), as well as such other related matters as you may reasonably request, and such counsel shall have received such documents and information as they reasonably may request to enable them to opine upon such matters;
(c) Naschitz, Bxxxxxx & Co., Israeli counsel for the Underwriters, shall have furnished to you their legal opinion and disclosure letter, dated such Time of Delivery, in this Agreement form and substance satisfactory to you with respect to the Merger Agreements matters covered in paragraphs (a), (b), (g), (k) and (q) of Annex 3-A hereto, as well as such other related matters as you may reasonably request, and such counsel shall be true have received such documents and correct information as they reasonably may request to enable them to opine upon such matters;
(d) Goldfarb, Levy, Eran, Meiri & Co., Israeli counsel for the Company, shall have furnished to you their legal opinion and disclosure letter, dated such Time of Delivery, in all material respects the form attached as Annex 3-A hereto;
(e) Dxxxx Xxxx & Wxxxxxxx, US counsel for the Company, shall have furnished to you their legal opinion and disclosure letter, dated such Time of Delivery, in the form attached as Annex 3-B hereto;
(f) The opinion of [Yxxxx Xxxxx & Co.], dated such Time of Delivery, in form and in substance satisfactory to you, shall have been furnished to you, to the effect set forth in Annex 3-D hereto;
(g) The respective local and US counsels for each of the Selling Shareholders, as indicated in Schedule II hereto, each shall have furnished to you their written opinions with respect to each of the Selling Shareholders for whom they are acting as counsel, dated such Time of Delivery, in the forms attached as Annex 3-E and Annex 3-F, respectively, hereto;
(h) On the date of the Prospectus, on and as the effective date of any post effective amendment to the Registration Statement filed subsequent to the date of this Agreement and on also at each Time of Delivery, Somekh Cxxxxxx, Member Firm of KPMG International, shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(i) On or before the First Time of Delivery, you shall have received duly executed Lock-Up Agreements from each of the persons and entities set forth in Annex 4 hereto, substantially in the form provided in Annex 4 hereto;
(j) At such Time of Delivery, you shall have received such other resolutions, consents, authorities and documents relating to the sale of the Offer Shares as you may reasonably require;
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus and the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute, legal dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus and the Prospectus; and (ii) since the respective dates as of which information is given in the Effective Pricing Prospectus there shall not have been any change in the share capital or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, shareholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus and the Prospectus, the effect of which, in any such case described in clauses (i) or (ii), is, in the judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Offer Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or NASDAQ; (ii) a suspension or material limitation in trading in the Company’s securities on the Exchange or the Tel Aviv Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State or Israeli authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States or Israel; (iv) the outbreak or escalation of hostilities involving the United States or the significant outbreak or escalation of hostilities involving Israel or the declaration by the United States or Israel of a national emergency or war (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States, Israel, or elsewhere, if the effect of any such event specified in clause (iv); or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Offer Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(m) On or after the Applicable Time, (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any reputable rating organization and (ii) no such rating organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities;
(n) The Offer Shares to be sold at such Time of Delivery shall have been approved for listing on the Exchange, subject to notice of issuance; and
(o) The Company and the Selling Shareholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Shareholders, respectively, satisfactory to you as if made on to the accuracy of the representations and warranties of the Company and the Selling Shareholders, respectively, herein at and as of such dateTime of Delivery, except as contemplated or permitted to the performance by this Agreement the Company and the Merger AgreementsSelling Shareholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsections (a) and (l) of this Section 8, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART as to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or such other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes matters as part of a transaction that satisfies the requirements of Section 351 of the Codeyou may reasonably request.
Appears in 1 contract
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be subject to the fulfillment at or prior to the Effective Time of the following conditions:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required Any Transfer pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 shall have become effective in accordance Section 17.9 above must comply with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
: (a) ART Tenant shall have performed not be in all monetary or material respects nonmonetary default (beyond applicable notice and cure periods) in the performance of any of its agreements contained in obligations under this Agreement and Lease at the Merger Agreements required to be performed on or time of the Transfer; (b) at least ten (10) business days prior to the Effective Time effective date of the proposed Transfer, Tenant shall give Landlord written notice of the proposed Transfer, which notice shall be accompanied by such documents or information as is reasonably necessary to substantiate that the proposed Transfer falls within the parameters of Section 17.9, including financial statements of the proposed Transferee, unless such advance notice is prohibited by Applicable Law, in which case, such notice shall be given within five (5) business days after the effective date of the Transfer; (c) Landlord receives no later than thirty (30) days after effective date of the Transfer a fully executed duplicate original assignment or sublease (if applicable), in a commercially reasonable form; (d) the transferor shall be Original Tenant or any Permitted Assignee under this Lease, the rights granted under Section 17.9 being personal to Original Tenant and any Permitted Assignee; (e) any such Transfers shall not, whether in a single transaction or in a series of transactions, be entered into as a subterfuge to evade the representations obligations and warranties of ART contained restrictions relating to Transfers set forth in this Agreement Article 17; (I) no Transfer to a Permitted Transferee shall release Tenant from its obligations under this Lease; and the Merger Agreements (g) Tenant shall be true pay Landlord's reasonable attorneys' fees and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required costs incurred in connection with any Transfer to a Permitted Transferee. In no event shall the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements provisions of Section 351 of the Code17.5 apply to a Permitted Transfer.
Appears in 1 contract
Conditions. Section 8.1 6.1 Conditions to Each Partyof Modtech's and SPI's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party Modtech and SPI to effect the Mergers shall will be subject to the fulfillment or waiver by both parties at or prior to the Effective Time Closing Date of the following conditions:
(a) This Agreement, the The Modtech Merger Agreements and the transactions contemplated hereby and thereby this Agreement shall have been validly approved and adopted by the affirmative vote of a majority the holders of the at least that number of outstanding shares of ART Common Stock Modtech Shares required to approve the Modtech Merger under the CGCL and NRLP Units entitled Modtech's articles of incorporation at the stockholders' meeting referred to votein Section 5.2 (the "Modtech Stockholder Approvals");
(b) The SPI Merger and this Agreement shall have been validly approved and adopted by the affirmative vote of the holders of at least that number of outstanding shares of SPI Shares required to approve the SPI Merger under the CBCA and SPI's articles of incorporation at the stockholders' meeting referred to in Section 5.2 (the "SPI Stockholder Approvals");
(c) Neither Modtech nor SPI shall be subject to any order, decree, ruling or injunction of a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, and no law, statute, rule or regulation shall have been promulgated or enacted by a governmental or regulatory authority, which prohibits the consummation of the transactions contemplated by this Agreement or would otherwise impair the ability of Holdings to operate the business of Modtech and SPI on a consolidated basis following the Closing and there shall be no pending action, proceeding or investigation by or before any governmental entity challenging or seeking material damages in connection with the Mergers or otherwise limiting the right of Modtech and SPI to continue their respective operations (and those of their Subsidiaries) following the Closing;
(d) The waiting period, if any, period applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(de) The Form S-4 shall have become effective in accordance with and shall be effective at the provisions of the Securities ActEffective Time, and no stop order suspending such effectiveness of the Form S-4 shall have been issued and remain which shall be in effect;
(e) No temporary restraining ordereffect at the Effective Time, preliminary no action, suit, proceeding or permanent injunction or other order or decree investigation by any court of competent jurisdiction which prevents the consummation of SEC to suspend the Mergers or imposes material conditions with respect thereto effectiveness thereof shall have been initiated and be continuing or, to the knowledge of Modtech or SPI, be threatened in writing, and all necessary approvals under state securities laws relating to the issuance or trading of Holdings Common Stock to be issued to Modtech and remain SPI stockholders in effect (each party agreeing to use its reasonable efforts to connection with the Mergers shall have any such injunction, order or decree lifted)been received;
(f) No action Holdings shall have been takensuccessfully negotiated and put into effect a credit facility on terms acceptable to Holdings, which facility shall provide approximately $100 million in available credit, (approximately $45 million of which shall be a term loan, $30 million of which shall be a revolving loan, and no statute, rule or regulation $25 million of which shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation be an acquisition line of the Mergers or impose material conditions with respect thereto; andcredit);
(g) The shares All consents, licenses, permits, authorizations, orders and approvals of Newco Common Stock (or filings or registrations with) any governmental or regulatory authorities, and all consents, authorizations and approvals of any other entity (including, without limitation, any bank or financial institution) required in connection with the execution, delivery and performance of this Agreement shall have been obtained or made, except for filings in connection with the Mergers and any other documents required to be filed after the Effective Time and except where the failure to have obtained or made any such consent, license, permit, authorization, order, approval, filing or registration would not have a Material Adverse Effect on Holdings and its Subsidiaries, taken as a whole, following the Effective Time;
(h) Holdings Common Stock to be issued hereunder to Modtech and SPI stockholders in connection with the Mergers shall have been approved for listing on the New York Stock ExchangeNasdaq, subject only to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:;
(ai) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to After the Effective Time and the representations and warranties of ART contained except as set forth in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as Agreement, no Person will have any right under any stock option plan (or any option granted thereunder) or other plan, program or arrangement to acquire any securities of the date Modtech, SPI or any of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effecttheir respective Subsidiaries;
(bj) ART Holders of Modtech Shares representing no more than 5% of the issued and outstanding Modtech Shares shall have obtained exercised, and not withdrawn, their rights to dissent from the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated herebyModtech Merger;
(ck) NRLP Holders of SPI Shares representing no more than 5% of the issued and outstanding SPI Shares shall have received exercised, and not withdrawn, their rights to dissent from the letter SPI Merger;
(l) All of BDO Xxxxxxx, LLP referred the parties set forth on the signature page thereof shall have entered into the Registration Rights Agreement substantially in the form of Exhibit G;
(m) Holdings and KRG Capital shall each have entered into the Transaction Advisory Agreement substantially in the form of Exhibit F;
(n) Such key employees as shall be identified by mutual agreement of Modtech and SPI shall have entered into employment agreements with Holdings on terms acceptable to Holdings;
(o) Holdings shall have delivered the certificate described in Section 7.8 hereof5.16 of this Agreement; and
(dp) NRLP The affiliates of Modtech and Newco SPI shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to entered into the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the CodeLockup Agreements.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization and Merger (Modtech Holdings Inc)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- (a) The respective obligations of each party the Company to effect complete the Mergers shall be Repurchase and acquire the Shares at the Closing Date pursuant hereto are subject to the fulfillment at satisfaction or waiver by the Company on or prior to the Effective Time Closing Date of each of the following conditions:
(ai) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained the Stockholder set forth in this Agreement and the Merger Agreements Section 3 hereof shall be true and correct in all material respects on and the Closing Date as of the date of this Agreement and on and as of the Effective Time as if though made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(bii) ART the Stockholder shall have obtained delivered the consent or approval of each person whose consent or approval shall be required in connection with Shares to the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated herebyCompany;
(ciii) NRLP the Stockholder shall have received performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the letter of BDO XxxxxxxClosing including, LLP referred to without limitation, those set forth in Section 7.8 hereof4;
(iv) the Public Offering shall have been closed and all of the 7,000,000 shares of the Common Stock offered thereby shall have been sold therein; and
(dv) NRLP and Newco the Company shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially of counsel to the effect that Stockholder, in form and substance reasonably satisfactory to the NRLP Merger Company and dated as of the Closing Date, as to the matters set forth in Sections 3.1 and 3.2.
(b) The obligations of the Stockholder to complete the Repurchase and sell the Shares at the Closing Date pursuant hereto are subject to the satisfaction or waiver by the Stockholder on or prior to the Closing Date, of each of the following conditions:
(i) the representations and warranties of the Company set forth in Section 2 hereof shall be treated true and correct in all material respects on the Closing Date as though made on and as of such date;
(ii) the Company shall have paid or tendered to the Stockholder the purchase price for federal income tax purposes as part of a transaction that satisfies the requirements of Shares;
(iii) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing including, without limitation, those set forth in Section 351 4;
(iv) the Public Offering shall have been closed and all of the Code7,000,000 shares of the Common Stock offered thereby shall have been sold therein; provided, that nothing contained in this Section 5(b) shall be deemed to limit the Stockholder's right to terminate this Agreement pursuant to Section 7(b); and
(v) the Stockholder shall have received an opinion of counsel to the Company, in form and substance reasonably satisfactory to the Stockholder and dated as of the Closing Date, as to the matters set forth in Sections 2.1 and 2.2.
Appears in 1 contract
Samples: Stock Repurchase Agreement (Itt Educational Services Inc)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers It shall be subject a condition to the fulfillment at effectiveness of this Agreement that on or prior to before the Effective Time of the following conditionsDate, Noteholder shall have approved and be in receipt of:
(a) This Agreement, the Merger Agreements executed and filed organizational documents of Xxxxxxx XX and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to voteREIT;
(b) The waiting periodthe final, if anyfully-executed merger agreement by and between Xxxxxxx Fund and Xxxxxxx XX, applicable to and the consummation of final, fully-executed merger agreement by and between Xxxxxxx Fund V REIT and the Mergers under the HSR Act shall have expired or been terminatedREIT;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby[intentionally omitted];
(d) The Form S-4 shall have become effective confirmation that Borrower’s insurance policies (and insurance carriers) comply with any applicable requirements in accordance with the provisions Loan Documents, including, without limitation, amounts and types of the Securities Actinsurance, loss payee and no stop order suspending such effectiveness shall have been issued and remain in effectapplicable insurance certificates;
(e) No temporary restraining order, a preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted)title report;
(f) No action shall have been taken, a new title insurance policy or title insurance policy update and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; andendorsements;
(g) The shares property management contract between Borrower, as owner, and Xxxxxxx XX, as manager, and assignment thereof to Noteholder;
(h) an opinion of Newco Common Stock required counsel, satisfactory to be issued hereunder shall have been approved for listing on the New York Stock ExchangeNoteholder as to form, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject substance and rendering attorney, opining to the fulfillment at or prior to the Effective Time validity and enforceability of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required terms and provisions hereof, and any other Loan Documents contemplated hereby, the due execution and authority of Borrower, Xxxxxxx XX and the REIT, to be performed on or prior execute and deliver this Agreement and perform their obligations under the Note and other Loan Documents, corporate and such other matters as reasonably requested by Noteholder;
(i) all credit, litigation, anti-terrorism, anti-money laundering and other searches, as Noteholder may require;
(j) certification from (i) Borrower certifying, among other things reasonably requested by Noteholder, that the current financial position of Borrower has not materially and adversely changed from that reflected in the financial statements most recently provided to Noteholder, and (ii) the REIT certifying, among other things reasonably requested by Noteholder, that after giving effect to the Effective Time Mergers and the representations IPO, the financial position of the REIT and warranties its consolidated subsidiaries shall not be materially and adversely different from that reflected in the proforma financial statements most recently provided to Noteholder;
(k) Borrower shall have paid Noteholder all fees and all costs and expenses of ART contained in Noteholder relative to this Agreement and the Merger Agreements shall be true other Loan Documents and/or other documents executed pursuant hereto and correct in any and all material respects on amendments, modifications and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such datesupplements thereto, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(dl) NRLP Borrower, the REIT and Newco Xxxxxxx XX shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially execute and/or deliver to the effect that the NRLP Merger Noteholder such other documents as Noteholder shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Codereasonably request.
Appears in 1 contract
Samples: Consent Agreement (Rexford Industrial Realty, Inc.)
Conditions. Section 8.1 Conditions The obligation of the Lenders to Each Party's Obligation to Effect make the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be Term Loans is subject to the fulfillment at or prior to the Effective Time satisfaction of the following conditions:
(a) This Agreement, the Merger Agreements all representations and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote warranties of a majority any of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained Credit Parties set forth in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements any other Loan Document shall be true and correct in all material respects on and with the same effect as of the date of this Agreement and on and as of the Effective Time as if though made on and as of such date, except as contemplated or for (i) those representations and warranties which relate only to the Closing Date and (ii) those changes in such representations and warranties otherwise permitted by the terms of this Agreement Agreement;
(b) there shall have occurred no Material Adverse Effect, after giving effect to the Term Loans;
(c) no Default or Event of Default shall have occurred and be continuing;
(d) if requested by the Merger AgreementsAgent, and NRLP it shall have received a certificate executed by a Responsible Officer of the President or of an Executive Vice President of ART Borrower as to that effectthe compliance with subparagraphs (a) through (c) above;
(be) ART the making of the Term Loans shall not be prohibited by, or subject the Agent or any Lender to, any penalty or onerous condition under any Legal Requirement; and
(f) the Borrower shall have obtained paid all legal fees and other expenses of the consent or approval type described in Section 10.9 hereof for which invoices have been presented through the date of each person whose consent or approval the Term Loans;
(g) the Agent and the Lenders shall have received the following which shall be required duly executed and in Proper Form:
(1) the Loan Documents executed by the applicable Credit Parties;
(2) a certificate of corporate resolutions and incumbency executed by the Secretary or an Assistant Secretary of the Borrower dated as of the date hereof, authorizing (i) the Borrower’s entering into the transactions contemplated hereby and (ii) the delivery by the Borrower of the Loan Documents to be executed and delivered by the Borrower;
(3) a certificate of corporate resolutions and incumbency executed by the Secretary or an Assistant Secretary of the Parent and each of the Guarantors dated as of the date hereof, authorizing the Parent and each of the Guarantors to (i) enter into the transactions contemplated hereby and (ii) deliver the Loan Documents to be executed and delivered by the Parent and each of the Guarantors;
(4) certified copies of the Organizational Documents of the Borrower, each of the Borrower’s Subsidiaries, and the Parent;
(5) certificates from the Secretary of State or other appropriate public official of the State of Delaware as to the continued existence and good standing of the Borrower in the State of Delaware;
(6) certificates from the Secretary of State or other appropriate public official as to the continued existence and good standing of the Parent and each of the Guarantors in its applicable State of formation;
(7) certificates from the appropriate public officials of the States of Texas, California, Colorado, Florida, Idaho, Iowa, Kansas, Nebraska, Oklahoma, Tennessee, Utah and Wisconsin for the Borrower as to the good standing and qualification as a foreign corporation, to the extent it is necessary to be qualified to do business as a foreign corporation in these jurisdictions;
(8) [intentionally omitted];
(9) copies of the following financial information: (i) audited consolidated financial statements of the Parent and its Subsidiaries for the two most recent fiscal years ended prior to the Closing Date as to which such financial statements are available, (ii) unaudited interim consolidated financial statements of the Parent and its Subsidiaries for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this paragraph and (iii) the most recent projected income statement, balance sheet and cash flows for each of the Parent’s fiscal years through June 30, 2015 (setting forth such projections on both an annual basis and on a monthly basis for the fiscal year ending June 30, 2011 and on an annual basis only for the 2012 fiscal year);
(10) the Intercreditor Agreement;
(11) a payoff letter from Xxxxx Fargo Bank, National Association, indicating the amount of the obligations of the Credit Parties to Xxxxx Fargo Bank, National Association and certain other lenders under the Term Loan Agreement dated as of August 10, 2007, as previously amended, and an acknowledgment by Xxxxx Fargo Bank, National Association (on behalf of itself and such lenders) that upon receipt of such funds neither Xxxxx Fargo Bank, National Association nor any such lender will have any rights or interests under the Security Documents or that certain Intercreditor and Collateral Agency Agreement, dated as of August 10, 2007, by and among the Credit Parties, the Revolving Credit Agent, the Collateral Agent and Xxxxx Fargo Bank, National Association, as previously amended;
(12) evidence that all legal (including tax implications) and regulatory matters in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure Term Loans are satisfactory to obtain such consents the Agent and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated herebyLenders;
(c13) NRLP a legal opinion from Xxxxxxx Procter LLP, the independent counsel for the Credit Parties, dated as of the Closing Date, addressed to the Agent and acceptable in all respects to the Agent and the Lenders in their sole reasonable discretion;
(14) certificates of insurance satisfactory to the Collateral Agent in all respects evidencing the existence of all insurance required to be maintained by the Borrower and its Subsidiaries pursuant to the terms of this Agreement and the Security Documents;
(15) copies of all material employment agreements, management fee agreements and tax sharing agreements with respect to any of the Credit Parties which the Agent shall have received requested;
(h) payment by the letter Borrower to the Lenders, the Agent and the Agent’s applicable Affiliates of BDO Xxxxxxx, LLP referred all fees required to in Section 7.8 hereofbe paid under the Loan Documents and all expenses required to be paid under the Loan Documents for which invoices have been presented; and
(di) NRLP receipt by the Agent and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially the Lenders of all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the effect that transactions contemplated hereby as the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies Agent may reasonably request, executed by the requirements of Section 351 of Credit Parties or any other Person required by the CodeAgent.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Animal Health International, Inc.)
Conditions. Section 8.1 Conditions Notwithstanding anything in Sections A.1, A.2 or A.3 of this Commitment Levels section above, to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers contrary, any such Base License Fees abatements or termination rights, as otherwise set forth in this Commitment Levels section, shall be subject to the fulfillment at or prior to the Effective Time of the following conditions:
a. The failure of Licensor to satisfy the applicable commitment level must not have occurred during or as a result of a Basic Capacity Overage, nor have been caused in whole or in part by (ai) This Licensee actions or inactions (including any failure to comply with the Agreement, including the Merger Agreements Policies and Procedures), (ii) Licensee-supplied power or equipment, (iii) actions or inactions of Licensee’s end users, (iv) Licensee’s failure to take advantage of the transactions contemplated hereby redundant electrical design of the Datacenter (e.g., Licensee “single-cords” its equipment in a scenario where “dual-cording” of Licensee’s equipment is available), (v) third party network providers, (vi) traffic exchange points controlled by third parties, (vii) an event of casualty or condemnation (which, for the avoidance of doubt, is governed by Section 9 of the Agreement), or (viii) any scheduled maintenance events. As used in this paragraph, “Licensee” shall include, without limitation, Licensee’s employees, agents, partners, members, contractors, invitees and thereby shall have been approved customers. For the avoidance of doubt, Licensor and adopted by Licensee acknowledge and agree that no Force Majeure event (other than the affirmative vote occurrence of a majority casualty or condemnation of the outstanding shares type described in Section 9 of ART Common Stock the Agreement) shall excuse a failure of Licensor to satisfy a commitment level set forth herein.
b. In order to receive the applicable Outage Credit(s) abatements, Licensee must notify Licensor of Licensee’s claim for Outage Credit abatements within thirty (30) days from the time Licensee becomes eligible to receive such Outage Credit abatements.
c. If an Interruption — Electrical affects some, but not all, of the powered cabinets and/or racks within the Premises, the Outage Credit abatement to which Licensee shall be entitled shall be equitably prorated based upon the proportion of the number of cabinets and/of racks affected by such Interruption — Electrical bears to the total number of powered cabinets and/or racks located within the Premises.
d. Notwithstanding anything in the Agreement to the contrary, the parties agree that the award of Outage Credit abatements and/or the termination of a particular Order (each, as expressly described in this Section A. Commitment Levels—General) shall be Licensee’s sole and NRLP Units exclusive remedies related to the occurrence of Interruptions of Licensor’s Essential Services.
e. In the event that Licensee is entitled to vote;Outage Credit abatements, the Outage Credit abatements shall be applied as a credit towards Licensee’s Base License Fees due in the immediately following month of the Order Term; provided, however, in the event that an Outage Credit abatement accrues during the final month of the applicable Order Term, Licensor will pay to Licensee the amount of the Outage Credit abatement within thirty (30) days following the expiration of such Order Term.
(b) The waiting period, if any, applicable f. Notwithstanding anything to the consummation of contrary herein, if, at the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as time that Licensee become eligible to receive any Outage Credit abatements, there shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required an uncured Event of Default by applicable law, shall have approved the transactions contemplated by Licensee under this Agreement; except where the failure , Licensee shall not be entitled to obtain receive any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuanceOutage Credit abatement.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
Appears in 1 contract
Samples: Colocation License Agreement (Guidance Software, Inc.)
Conditions. Section 8.1 Conditions The obligation of the Lenders to Each Party's Obligation to Effect make the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be Term Loans is subject to the fulfillment at or prior to the Effective Time satisfaction of the following conditions:
(a) This Agreement, the Merger Agreements all representations and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote warranties of a majority any of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained Credit Parties set forth in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements any other Loan Document shall be true and correct in all material respects on and with the same effect as of the date of this Agreement and on and as of the Effective Time as if though made on and as of such date, except as contemplated or for (i) those representations and warranties which relate only to the Closing Date and (ii) those changes in such representations and warranties otherwise permitted by the terms of this Agreement Agreement;
(b) there shall have occurred no Material Adverse Effect, after giving effect to the Term Loans;
(c) no Default or Event of Default shall have occurred and be continuing;
(d) if requested by the Merger AgreementsAgent, and NRLP it shall have received a certificate executed by a Responsible Officer of the President or of an Executive Vice President of ART Borrower as to that effectthe compliance with subparagraphs (a) through (c) above;
(be) ART the making of the Term Loans shall not be prohibited by, or subject the Agent or any Lender to, any penalty or onerous condition under any Legal Requirement; and
(f) the Borrower shall have obtained paid all legal fees and other expenses of the consent or approval type described in Section 10.9 hereof for which invoices have been presented through the date of each person whose consent or approval the Term Loans;
(g) the Agent and the Lenders shall have received the following which shall be required duly executed and in Proper Form:
(1) the Loan Documents executed by the applicable Credit Parties;
(2) a certificate of corporate resolutions and incumbency executed by the Secretary or an Assistant Secretary of the Borrower dated as of the date hereof, authorizing (i) the Borrower’s entering into the transactions contemplated hereby and (ii) the delivery by the Borrower of the Loan Documents to be executed and delivered by the Borrower;
(3) a certificate of corporate resolutions and incumbency executed by the Secretary or an Assistant Secretary of the Parent and each of the Guarantors dated as of the date hereof, authorizing the Parent and each of the Guarantors to (i) enter into the transactions contemplated hereby and (ii) deliver the Loan Documents to be executed and delivered by the Parent and each of the Guarantors;
(4) certified copies of the Organizational Documents of the Borrower, each of the Borrower’s Subsidiaries, and the Parent;
(5) certificates from the Secretary of State or other appropriate public official of the State of Delaware as to the continued existence and good standing of the Borrower in the State of Delaware;
(6) certificates from the Secretary of State or other appropriate public official as to the continued existence and good standing of the Parent and each of the Guarantors in its applicable State of formation;
(7) certificates from the appropriate public officials of the States of Texas, California, Colorado, Florida, Idaho, Iowa, Kansas, Nebraska, Oklahoma, Tennessee, Utah and Wisconsin for the Borrower as to the good standing and qualification as a foreign corporation, to the extent it is necessary to be qualified to do business as a foreign corporation in these jurisdictions;
(8) [intentionally omitted];
(9) copies of the following financial information: (i) audited consolidated financial statements of the Parent and its Subsidiaries for the two most recent fiscal years ended prior to the Closing Date as to which such financial statements are available, (ii) unaudited interim consolidated financial statements of the Parent and its Subsidiaries for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this paragraph and (iii) the most recent projected income statement, balance sheet and cash flows for each of the Parent’s fiscal years through June 30, 2015 (setting forth such projections on both an annual basis and on a monthly basis for the fiscal year ending June 30, 2011 and on an annual basis only for the 2012 fiscal year);
(10) the Intercreditor Agreement;
(11) a payoff letter from Xxxxx Fargo Bank, National Association, indicating the amount of the obligations of the Credit Parties to Xxxxx Fargo Bank, National Association and certain other lenders under the Term Loan Agreement dated as of August 10, 2007, as previously amended, and an acknowledgment by Xxxxx Fargo Bank, National Association (on behalf of itself and such lenders) that upon receipt of such funds neither Xxxxx Fargo Bank, National Association nor any such lender will have any rights or interests under the Security Documents or that certain Intercreditor and Collateral Agency Agreement, dated as of August 10, 2007, by and among the Credit Parties, the Revolving Credit Agent, the Collateral Agent and Xxxxx Fargo Bank, National Association , as previously amended;
(12) evidence that all legal (including tax implications) and regulatory matters in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure Term Loans are satisfactory to obtain such consents the Agent and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated herebyLenders;
(c13) NRLP a legal opinion from Xxxxxxx Procter LLP, the independent counsel for the Credit Parties, dated as of the Closing Date, addressed to the Agent and acceptable in all respects to the Agent and the Lenders in their sole reasonable discretion;
(14) certificates of insurance satisfactory to the Collateral Agent in all respects evidencing the existence of all insurance required to be maintained by the Borrower and its Subsidiaries pursuant to the terms of this Agreement and the Security Documents;
(15) copies of all material employment agreements, management fee agreements and tax sharing agreements with respect to any of the Credit Parties which the Agent shall have received requested;
(h) payment by the letter Borrower to the Lenders, the Agent and the Agent’s applicable Affiliates of BDO Xxxxxxx, LLP referred all fees required to in Section 7.8 hereofbe paid under the Loan Documents and all expenses required to be paid under the Loan Documents for which invoices have been presented; and
(di) NRLP receipt by the Agent and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially the Lenders of all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the effect that transactions contemplated hereby as the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies Agent may reasonably request, executed by the requirements of Section 351 of Credit Parties or any other Person required by the CodeAgent.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Animal Health International, Inc.)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- 10.1 The respective obligations of each party Gxxxxx Lake and Mexgold to effect complete the Mergers shall be Arrangement are subject to the fulfillment at or prior to the Effective Time of the following conditionsconditions on or before the Effective Date:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby Interim Order shall have been approved granted in form and adopted by the affirmative vote of substance satisfactory to Gxxxxx Lake and Mexgold, each acting reasonably, and shall not have been set aside or modified in a majority of the outstanding shares of ART Common Stock and NRLP Units entitled manner unacceptable to voteGxxxxx Lake or Mexgold, each acting reasonably, on appeal or otherwise;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act Final Order shall have expired been granted in form and substance satisfactory to Gxxxxx Lake and Mexgold, each acting reasonably, and shall not have been set aside or been terminatedmodified in a manner unacceptable to Gxxxxx Lake or Mexgold, each acting reasonably, on appeal or otherwise;
(c) The parties hereto the Effective Date shall have made the requisite filings with all Governmental Entities occurred on or before August 11, 2006 or such later date as shall be required pursuant Gxxxxx Lake and Mexgold, acting reasonably, may agree to applicable lawsin writing;
(d) articles of arrangement in prescribed form and in form and content acceptable to Gxxxxx Lake and Mexgold, rules and regulations, and such Governmental Entities, to the extent required by applicable laweach acting reasonably, shall have approved been filed with the transactions contemplated Director and a certificate of arrangement issued by this Agreement; except where the failure Director on or before August 11, 2006;
(e) there shall not be in force any Law, ruling, order or decree, and there shall not have been any action taken under any Law or by any Governmental Entity or other regulatory authority, that makes it illegal or otherwise directly or indirectly restrains, enjoins or prohibits the consummation of the Arrangement in accordance with the terms hereof or results or could reasonably be expected to obtain any such approval would notresult in a judgment, individually order, decree or in assessment of damages, directly or indirectly, relating to the aggregateArrangement which has, have or could reasonably be expected to have, a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, Gxxxxx Lake or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted)Mexgold;
(f) No action shall have been takenall consents, waivers, permits, orders and no statuteapprovals of all regulatory or Governmental Entities or third parties and the expiry of any waiting period in connection with, rule or regulation shall have been enactedrequired to permit, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers Arrangement, the failure of which to obtain or impose material conditions with respect thereto; andthe non-expiry of which could reasonably be expected to cause a Material Adverse Effect on either party or materially impede the completion of the Arrangement, shall have been obtained or received on terms which will not cause a Material Adverse Effect on either party, and reasonably satisfactory evidence thereof shall have been delivered to each party;
(g) The shares Mexgold Shareholders shall have approved, in accordance with applicable laws (including Rule 61-501) and the Interim Order, the Arrangement and approved or consented to such other matters as either Gxxxxx Lake or Mexgold, acting reasonably, shall consider necessary or desirable in connection with the Arrangement in the manner required thereby;
(h) the Gxxxxx Lake Common Shares issuable pursuant to the Arrangement and the Gxxxxx Lake Common Shares issuable on exercise of Newco Common Stock required to be issued hereunder the Gxxxxx Lake Options shall have been conditionally approved for listing on the New York Stock ExchangeTSX and the AMEX but subject to the filing of required documentation, the TSXV shall have approved the Arrangement and all other related transactions in relation to Mexgold, subject only to compliance with the standard requirements of the TSXV, any required prospectus exemptions shall have been obtained and such securities shall not be subject to resale restrictions in Canada other than in respect of control persons or subject to requirements of general application;
(i) the Gxxxxx Lake Common Shares to be issued in the United States pursuant to the Arrangement are exempt from registration requirements under Section 3(a)(10) of the 1933 Act and the Gxxxxx Lake Common Shares to be distributed in the United States pursuant to the Arrangement are not subject to resale restrictions in the United States under the 1933 Act (other than sales by affiliates in the United States and subject to requirements of general application or as may be prescribed by Rule 144 and Rule 145 under the 1000 Xxx); and
(j) this Agreement shall not be terminated pursuant to Article 16 hereof. The foregoing conditions are for the mutual benefit of each of the parties to the Agreement and may be waived, in whole or in part, by either Mexgold or Gxxxxx Lake at any time, provided that no party may waive any mutual condition on behalf of the other party. If any of the said conditions precedent shall not be complied with or waived as aforesaid on or before the date required for the performance thereof, then, subject to official Article 16 hereof, either Gxxxxx Lake or Mexgold may rescind and terminate this Agreement by written notice of issuanceto the other.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- 10.2 The obligation of NRLP each party to effect complete the NRLP Merger shall be transactions contemplated hereby is subject to the fulfillment at or prior to by the Effective Time other party of the following additional conditionsconditions on or before the Effective Date or such other time prior thereto as is specified below:
(a) ART each party shall have performed complied in all material respects with its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time covenants herein and the representations and warranties of ART contained made to such party by the other party in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time Date as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;; and
(b) ART from the date hereof up to and including the Effective Date, there shall have obtained been no change, effect, event or occurrence which, in the consent reasonable judgment of such party, has or approval is reasonably likely or expected to have a Material Adverse Effect on the other party. The foregoing conditions are for the mutual benefit of each person whose consent of the parties to the Agreement and may be waived, in whole or approval in part, by either Mexgold or Gxxxxx Lake at any time, provided that no party may waive any mutual condition on behalf of the other party. If any of the said conditions precedent shall not be complied with or waived as aforesaid on or before the date required in connection with for the performance thereof, then, subject to Article 16 hereof, either Gxxxxx Lake or Mexgold may rescind and terminate this Agreement by written notice to the other.
10.3 The obligations of Gxxxxx Lake to complete the transactions contemplated hereby under any loan are subject to the fulfillment or credit agreementwaiver of the following conditions on or before the time as is specified below:
(a) the representations and warranties made by Mexgold in this Agreement which are qualified by the expression "Material Adverse Change" or "Material Adverse Effect" shall be true and correct as of the Effective Date as if made on and as of such date (except to the extent that such representations and warranties speak as of an earlier date, notein which event such representations and warranties shall be true and correct as of such earlier date), mortgageand all other representations and warranties made by Gxxxxx Lake in this Agreement shall be true and correct in all material respects as of the Effective Date as if made on and as of such date (except to the extent that such representations and warranties speak as of an earlier date, indenturein which event such representations and warranties shall be true and correct as of such earlier date), lease, license or other agreement or instrumentin either case, except those for which failure to obtain such consents where any failures or breaches of representations and approvals warranties would not, not either individually or in the aggregate, in the reasonable judgment of Gxxxxx Lake, have a Material Adverse Effect on ART Mexgold, and Mexgold shall have provided to Gxxxxx Lake a certificate of two officers thereof certifying such accuracy or upon lack of Material Adverse Effect on the consummation Effective Date. No representation or warranty made by Mexgold hereunder shall be deemed not to be true and correct if the facts or circumstances that make such representation or warranty untrue or incorrect are disclosed or referred to in the Mexgold Public Record or provided for or stated to be exceptions under this Agreement;
(b) Mexgold shall have complied in all material respects with its covenants herein and Mexgold shall have provided to Gxxxxx Lake a certificate of two officers thereof certifying that, as of the transactions contemplated herebyEffective Date, it has so complied with its covenants herein;
(c) NRLP the board of directors of Mexgold shall have received unanimously approved the letter Arrangement and shall have unanimously recommended the Arrangement to the Mexgold Shareholders, and on or prior to the Effective Date shall not have withdrawn or changed any of BDO Xxxxxxxits recommendations in a manner adverse to Gxxxxx Lake or which could impede the completion of the Arrangement, LLP referred and shall not have made a recommendation to in Section 7.8 hereofthe Mexgold Shareholders not to accept the Arrangement;
(d) on or prior to the Effective Date, holders of no greater than 5% of the outstanding Mexgold Common Shares (other than Mexgold Common Shares held by Gxxxxx Lake and officers and directors of Gxxxxx Lake) at the time of the vote shall have dissented to the Arrangement; and
(de) NRLP and Newco Mexgold shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially complied in all material respects with its covenants herein. The foregoing conditions are for the benefit of Gxxxxx Lake and may be waived, in whole or in part, by Gxxxxx Lake in writing at any time.
10.4 The obligations of Mexgold to complete the transactions contemplated hereby are subject to the effect that fulfillment or waiver of the NRLP Merger following conditions on or before the Effective Date:
(a) the representations and warranties made by Gxxxxx Lake in this Agreement which are qualified by the expression "Material Adverse Change" or "Material Adverse Effect" shall be treated for federal income tax purposes true and correct as part of a transaction that satisfies the requirements of Section 351 of the CodeEffective Date as if made on and as of such date (except to the extent that such representations and warranties speak as of an earlier date, in which event such representations and warranties shall be true and correct as of such earlier date), and all other representations and warranties made by Gxxxxx Lake in this Agreement shall be true and correct in all material respects as of the Effective Date as if made on and as of such date (except to the extent that such representations and warranties speak as of an earlier date, in which event such representations and warranties shall be true and correct as of such earlier date), in either case, except where any failures or breaches of representations and warranties would not either individually or in the aggregate, in the reasonable judgment of Mexgold, have a Material Adverse Effect on Gxxxxx Lake, and Gxxxxx Lake shall have provided to Mexgold a certificate of two officers thereof certifying such accuracy or lack of Material Adverse Effect on the Effective Date. No representation or warranty made by Gxxxxx Lake hereunder shall be deemed not to be true and correct if the facts or circumstances that make such representation or warranty untrue or incorrect are disclosed or referred to in the Gxxxxx Lake Public Record or provided for or stated to be exceptions under this Agreement;
(b) Gxxxxx Lake shall have complied in all material respects with its covenants herein and Gxxxxx Lake shall have provided to Mexgold a certificate of two officers thereof certifying that, as of the Effective Date, it has so complied with its covenants herein; and
(c) the directors of Gxxxxx Lake shall have adopted all necessary resolutions and all other necessary corporate action shall have been taken by Gxxxxx Lake to permit the consummation of the Arrangement. The foregoing conditions are for the benefit of Mexgold and may be waived, in whole or in part, by Gxxxxx Lake in writing at any time.
10.5 The conditions set out in Sections 10.1, 10.2, 10.3 and 10.4 hereof shall be conclusively deemed to have been satisfied, fulfilled or waived upon the issue of the Certificate. Mexgold acknowledges and agrees that it shall have no right to file the Articles of Arrangement with the Director unless such conditions have been satisfied, fulfilled or waived.
Appears in 1 contract
Samples: Arrangement Agreement (Gammon Lakes Resources Inc /Fi)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers amendments and waiver set forth in Articles I and II above shall be subject to the fulfillment at or prior by the Borrowers, in a manner satisfactory to the Effective Time Agent, of all of the following conditionsconditions precedent set forth in this Section 4.1:
(a) This Agreement, The Borrowers and each of the Merger Agreements and the transactions contemplated hereby and thereby Banks shall have been approved executed and adopted by delivered to the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;Agent this Amendment No. 9.
(bi) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in Article III of this Amendment No. 9 and in each other agreement, instrument, certificate or other writing delivered to the Agent or any Bank pursuant hereto or to the Loan Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement hereof and on and as of the Effective Time Date (after giving effect to the waivers included herein) as if though made on and as of such date, except as contemplated and (ii) no Default or permitted by this Agreement and the Merger Agreements, and NRLP Event of Default shall have received a certificate occurred and be continuing on the Effective Date; and execution and delivery of this Amendment shall constitute confirmation by the Borrowers of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents truth and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation accuracy and satisfaction of the transactions contemplated hereby;conditions of this Section 4.1.
(c) NRLP The Agent shall have received copies of the letter resolutions of BDO Xxxxxxxthe board of directors of the Borrowers, LLP referred to in Section 7.8 hereof; andcertified as true, correct and complete by an officer thereof, authorizing the execution and delivery of this Amendment.
(d) NRLP The Agent shall have received in form and Newco substance satisfactory to the Agent a certificate of an authorized officer of each of the Borrowers certifying the names and true signatures of the officer authorized to sign this Amendment No. 9 and each of the other documents contemplated hereby together with evidence of the incumbency of such authorized officer.
(e) If requested, the Agent shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially opinion, in form and substance satisfactory to the effect that Banks and the NRLP Merger Agent, of Allen P. Palles, Esq. or Jamxx Xxxxxxx, Xsq., counsel tx xxx Xxxxxxxrs as to such matters relating to this Amendment as the Agent and the Banks may reasonably request.
(f) The Borrowers shall have (i) paid to each Bank, and each Bank shall have received, the Amendment Fee, (ii) paid all fees and expenses of counsel to the Agent incurred in connection herewith; and (iii) otherwise complied in all respects with the terms hereof and of any other agreement, document, instrument or other writing to be delivered by the Borrower in connection herewith.
(g) All legal matters incident to this Amendment shall be treated for federal income tax purposes as part of a transaction that satisfies reasonably satisfactory to the requirements of Section 351 of Agent and counsel to the CodeAgent.
Appears in 1 contract
Samples: Loan Agreement (Linc Capital Inc)
Conditions. Section 8.1 Conditions (a) The obligation of the Initial Purchasers to Each Party's Obligation to Effect purchase the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be Units under this Agreement is subject to the fulfillment at satisfaction or prior to the Effective Time waiver of each of the following conditions:
(aA) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and All the representations and warranties of ART contained the Issuer and the Guarantors in this Agreement and the Merger Agreements shall be true and correct in all material respects on (other than representations and warranties with a Material Adverse Effect qualifier or other materiality qualifier, which shall be true and correct as written) at and as of the date of this Agreement Closing Date after giving effect to the Transactions with the same force and on and as of the Effective Time effect as if made on and as of such date. On or prior to the Closing Date, except each of the Issuer and the Subsidiaries and, to the knowledge of each of the Issuer and the Subsidiaries, each other party to the Operative Documents (other than the Initial Purchasers) 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 Operative Documents.
(B) The Preliminary Offering Circular as contemplated of its date did not, and the Offering Circular, as of its date did not and as of the Closing Date does not, and each supplement or permitted by amendment thereto as of its date did not, contain any untrue statement of a material fact or omit to state any material fact (except, in the case of the Preliminary Offering Circular, for pricing terms, other financial terms intentionally left blank and other changes in the structure of the transaction described in the Preliminary Offering Circular which arose after the date of the Preliminary Offering Circular) necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the foregoing shall not apply to any statements or omissions made in reliance on and in conformity with the Furnished Information.
(ii) The Offering Circular shall have been printed and copies made available to the Initial Purchasers not later than 12:00 noon, New York City time, on the first Business Day following the date of this Agreement or at such later date and time as the Merger AgreementsInitial Purchasers may approve.
(iii) No injunction, and NRLP restraining order or order of any nature by a Governmental Authority shall have received a certificate been issued as of the President Closing Date that would prevent or interfere with the consummation of an Executive Vice President any of ART to the Transactions; 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 effect;purpose shall have been commenced or be pending or contemplated as of the Closing Date.
(biv) ART No action shall have obtained been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the consent or approval Closing Date, prevent the consummation of each person whose consent or approval any of the Transactions. No Proceeding shall be required in connection with the transactions contemplated hereby under any loan pending or credit agreement, note, mortgage, indenture, lease, license or threatened other agreement or instrument, except those for which failure to obtain such consents and approvals would than Proceedings that (A) if adversely determined could not, individually singly or in the aggregate, adversely affect the issuance or marketability of the Securities and (B) could not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect on ART 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 Units, the Notes and the Warrants shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the PORTAL market, and the Notes shall have received a rating of B and B3 from Standard & Poor's Corporation and Xxxxx'x Investors Services, Inc., respectively.
(vii) On or upon after the consummation 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 transactions contemplated herebypossible change in, any rating of the Issuer or any securities of the Issuer (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 Issuer or any securities of the Issuer 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 any of the Notes than that on which the Notes were marketed.
(viii) The Initial Purchasers shall have received on the Closing Date (A) a certificate dated the Closing Date, signed by (1) the Chief Executive Officer, and (2) the principal financial or accounting officer of the Issuer and each of the Guarantors, on behalf of the Issuer and each of the Guarantors, and not as an individual, (x) 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 Secretary of the Issuer and the Guarantors, on behalf of the Issuer and the Guarantors, and not as an individual, certifying such matters as the Initial 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 and the Guarantors substantially in the form previously approved by the Initial Purchasers.
(ix) The Initial Purchasers shall have received:
(1) an opinion of Xxxxxxxxx Xxxxxxx, LLP, counsel to the Issuer, dated the Closing Date, in substantially the form of Exhibit A hereto, and (2) such other legal opinions of Xxxxxxxxx Xxxxxxx, LLP, counsel to the Issuer, dated the Closing Date, as the Initial Purchasers or their counsel may reasonably request, related to the enforceability of the Security Documents and the creation, validity and perfection of the liens granted under the Security Documents (including, without limitation, as to the authorization by the Grantors of the filing of financing statements, the financing statements being in appropriate form for filing and each Grantor being a registered organization under the applicable Uniform Commercial Code);
(c1) NRLP shall have received an opinion of Xxxxxxx X. XxXxxx, Esq., general counsel to the letter Issuer, dated the Closing Date, in the form of BDO XxxxxxxExhibit B hereto, LLP referred and (2) such other legal opinions of Xxxxxxx X. XxXxxx, Esq., general counsel to the Issuer, dated the Closing Date, as the Initial Purchasers or their counsel may reasonably request, related to the enforceability of the Security Documents and the creation, validity and perfection of the liens granted under the Security Documents (including, without limitation, as to the authorization by the Grantors of the filing of financing statements, the financing statements being in Section 7.8 hereofappropriate form for filing and each Grantor being a registered organization under the applicable Uniform Commercial Code);
(C) such other legal opinions of local counsel to the Issuer, dated the Closing Date, as the Initial Purchasers or their counsel may reasonably request, related to the enforceability of the Security Documents and the creation, validity and perfection of the liens granted under the Security Documents (including, without limitation, as to the authorization by the Grantors of the filing of financing statements, the financing statements being in appropriate form for filing and each Grantor being a registered organization under the applicable Uniform Commercial Code); and
(dD) NRLP and Newco shall have received an opinion from Xxxxx opinion, dated the Closing Date, of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP substantially LLP, in form and substance reasonably satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(x) The Initial Purchasers shall have received:
(A) with respect to fiscal years 1996 through 1999, from Deloitte & Touche LLP, independent public accountants with respect to the Issuer and the Subsidiaries for fiscal years 1996 through 1999, (1) a customary comfort letter, dated the date of the Offering Circular, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to the financial statements and the financial information contained in the Offering Circular as of and for such fiscal years and any periods therein, and (2) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect that Deloitte & Touche LLP reaffirms the NRLP Merger statements made by it in the letter furnished pursuant to clause (1) of this paragraph (A), except that the specified date referred to shall be treated a date not more than five days prior to the Closing Date, and
(B) with respect to fiscal years 2000 and 2001, from Xxxxxxxx LLP, independent public accountants with respect to the Issuer and the Subsidiaries for federal income tax purposes fiscal years 2000 and 2001, (1) a customary comfort letter, dated the date of the Offering Circular, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to the financial statements and the financial information contained in the Offering Circular as part of and for such fiscal years and any periods therein, and (2) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect that Xxxxxxxx LLP reaffirms the statements made by it in the letter furnished pursuant to clause (1) of this paragraph (B), except that the specified date referred to shall be a date not more than five days prior to the Closing Date.
(xi) The Operative Documents shall have been executed and delivered by all parties thereto and the Initial Purchasers shall have received a fully executed original of each Operative Document relating to the Offering.
(xii) The Initial Purchasers 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 Operative Document shall conform in all material respects to the description thereof in the Offering Circular.
(xiv) The Initial Purchasers shall have received copies of duly executed payoff letters, UCC-3 termination statements, mortgage releases, intellectual property releases and other collateral releases and terminations, each in form and substance satisfactory to the Initial Purchasers evidencing, as the case may be, (A) the repayment of all outstanding borrowings under the Existing Credit Facility; (B) the termination of the Existing Credit Facility and of each other agreement and instrument relating to such borrowings and any other Indebtedness secured by the Collateral; and (C) 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 Collateral Agent shall have received (A) executed copies of each UCC-1 financing statement signed by the Issuer and each Grantor, naming the Collateral Agent as a secured party and filed in such jurisdictions as the Initial Purchasers may reasonably require; (B) bailee letters and landlord waivers, in form and substance reasonably satisfactory to the Initial Purchasers, executed by the Issuer or the appropriate Grantors for delivery to each of the Persons specified in the Security Documents as holding Collateral; and (C) any other documents required to be delivered to the Collateral Agent pursuant to the Security Documents.
(xvi) Counsel to the Initial 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 of any of the representations, warranties or conditions herein contained.
(xvii) The Issuer shall have furnished to the Initial Purchasers 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 Uniform Commercial Code 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) proper instruments to be filed in the U.S. Patent and Trademark Office that may be deemed necessary or desirable in order to perfect the liens granted on patents and trademarks which liens have been created by the Security Documents;
(C) contemplated requests for information and lien search results, listing all effective financing statements filed as of a transaction recent date in the jurisdictions referred to in the prior subparagraph that satisfies name the requirements Issuer or the Guarantors as debtor, together with copies of Section 351 such financing statements (none of which shall cover the Collateral described in the Security Documents; and
(D) reasonable evidence that all other actions necessary to perfect and protect the Liens created by the Security Documents have been taken.
(b) The obligations of the CodeIssuer and the Guarantors to sell the Securities under this Agreement is subject to the satisfaction or waiver of each of the following conditions:
(i) The Initial Purchasers shall have delivered payment to the Issuer for the Units pursuant to Sections 2 and 4 of this Agreement.
(ii) All of the representations and warranties of the Initial Purchasers in this Agreement shall be true and correct in all material respects at and as of the Closing Date, with the same force and effect as if made on and as of such date.
(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 issuance and sale of the Securities; 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 be pending or contemplated as of the Closing Date.
Appears in 1 contract
Conditions. Section 8.1 7.1 Conditions to Each Party's Obligation to Effect the MergersObligations. ----------------------------------------------------------- The respective obligations of -------------------------------------- each party Party to effect consummate the Mergers shall be Merger are subject to the fulfillment at satisfaction or prior to waiver by each of the Effective Time Parties of the following conditions:
(a) This Agreement, this Agreement and the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by received the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to voteCompany Stockholder Approval;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such the effectiveness of the S-4 Registration Statement shall have been issued by the SEC and remain in effect;
(ec) No temporary restraining no judgment, order, preliminary decree, statute, law, ordinance, rule or permanent injunction regulation, entered, enacted, promulgated, enforced or other order or decree issued by any court or other Governmental Entity of competent jurisdiction or other legal restraint or prohibition shall be in effect which prevents (i) has the effect of making the consummation of the Mergers Merger or imposes material conditions with respect thereto the other transaction contemplated hereby illegal, (ii) materially restricts, prevents or prohibits consummation of the Merger or any of the transactions contemplated hereby or (iii) would impair the ability of Parent to own the outstanding shares of the Surviving Corporation, or operate its or any of its Subsidiaries' businesses (including the businesses of the Surviving Corporation or any of its Subsidiaries), following the Effective Time (collectively, "Restraints"); and there shall not be pending any suit, action or ---------- proceeding by any Governmental Entity or third party which would have any of the foregoing effects; provided, however, that each of the Parties shall have been issued and remain in effect (each party agreeing to use its used their reasonable best efforts to have prevent the entry of such Restraints and to appeal as promptly as possible any such injunction, order or decree lifted)Restraints that may be entered;
(fd) No action the waiting period(s) under the HSR Act or antitrust or competition laws of any applicable jurisdiction, if applicable, shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect theretoexpired; and
(ge) The shares of Newco Common Stock required the Parent Shares to be issued hereunder pursuant to the Merger shall have been duly approved for listing on the New York Stock ExchangeNYSE, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
Appears in 1 contract
Conditions. Section 8.1 5.1 Conditions to Each Party's Obligation the Obligations of Little Creek and Jenson Services. Txx xxxigations of Little Creek and Jenson Services to Effect xxxxxmmate the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be transactions contemplated by this Agreement are subject to the fulfillment satisfaction, at or prior to before the Effective Time consummation of the transactions contemplated hereby of each of the following conditions:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule rule, regulation or regulation 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, in the reasonable opinion of Little Creek, (i) make the transactions contemplated hereby illegal, (ii) require the divestiture by Little Creek or any subsidiary of Little Creek of the shares of any company or of a material portion of the business of Little Creek and its subsidiaries taken as a whole, (iii) impose material limits on the ability of Little Creek to effectively control the business of Little Creek and its subsidiaries, (iv) otherwise materially adversely affect Little Creek and its subsidiaries taken as a whole, or (v) if the transactions contemplated hereby are consummated, subject any officer, director, or employee of Little Creek to criminal penalties or to civil liabilities not adequately covered by insurance or enforceable indemnification maintained by Little Creek;
(b) No action or proceeding before any court or governmental authority, domestic or foreign, by any state or Federal government or governmental agency authority or by any other person, domestic or foreign, shall be threatened, instituted or pending which would prevent the consummation reasonably be expected to result in any way of the Mergers or impose material conditions with respect thereto; and
consequences referred to in clauses (gi) The shares through (v) of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
paragraph (a) ART above;
(c) Mortgage Store shall have performed complied in all material respects with its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time covenants herein, and the all representations and warranties of ART contained in this Agreement and the Merger Agreements Mortgage Store herein shall be true and correct in all material respects on and as at the time of the date of this Agreement and on and as of the Effective Time Closing as if made on and as of such at that time, except to the extent they expressly relate to an earlier date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP Little Creek shall have received a certificate to that effect to the best of the President or knowledge of an Executive Vice Mortgage Store, signed by the President of ART to that effectMortgage Store;
(bd) ART Each Mortgage Store Stockholder shall have obtained the consent or approval complied in all material respects with its agreements and covenants herein, and all representations and warranties of each person whose consent or approval Mortgage Store Stockholder herein shall be required true and correct in connection all material respects at the time of the Closing as if made at that time, except to the extent they expressly relate to an earlier date, and Little Creek shall have received a certificate to that effect to the best knowledge of each Mortgage Store Stockholder, signed by each Mortgage Store Stockholder;
(e) A Good Standing Certificate of Mortgage Store, dated no more than 10 days prior to the Closing Date, from the Secretary of State of California;
(f) The Mortgage Store Stockholder listed on Schedule 5.1(f) shall have agreed to exchange his Mortgage Store Shares pursuant hereto;
(g) The Mortgage Store Stockholder shall have delivered to Interwest Stock Transfer, Little Creek's transfer agent, certificates representing such Mortgage Store Stockholder's Mortgage Store Shares which are being transferred hereunder, which certificate shall have been duly endorsed in blank by such Mortgage Store Stockholder or with blank stock powers attached, in proper form for transfer to Little Creek;
(h) The delivery of an opinion from Kirkpatrick & Lockxxxx XXX, xn txx xxxx set forth on Schedule 5.1(h); and
(i) An executed Investment Letter in the form set forth on Schedule 5.1(i) from the Mortgage Store Stockholder as part of his compliance with Section 1.2 hereof.
5.2 Conditions to the Obligations of Mortgage Store and the Mortgage Store Stockholder. The obligations of Mortgage Store and the Mortgage Store Stockholder to consummate the transactions contemplated hereby under any loan are subject to the satisfaction, at or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon before the consummation of the transactions contemplated hereby, of each of the following conditions:
(a) The directors of Mortgage Store shall have duly approved the transactions contemplated hereby in accordance with applicable law;
(b) 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, (ii) require the divestiture by Mortgage Store or any subsidiary of Mortgage Store of the shares of any company or of a material portion of the business of Mortgage Store and its subsidiaries taken as a whole, (iii) impose material limits on the ability of Mortgage Store to effectively control the business of Mortgage Store and its subsidiaries, (iv) otherwise materially adversely affect Mortgage Store and its subsidiaries taken as a whole or any Mortgage Store Stockholder, or (v) if the transactions contemplated hereby are consummated, subject any officer, director or employee of Mortgage Store to criminal penalties or to civil liabilities not adequately covered by insurance or enforceable indemnification maintained by Mortgage Store;
(c) NRLP 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) through (v) of paragraph (b) above;
(d) Little Creek shall have complied in all respects with its agreements and covenants herein, and all representations and warranties of Little Creek herein shall be true and correct in all respects at the time of Closing as if made at that time, except to the extent they expressly relate to an earlier date, and Mortgage Store shall have received a certificate to that effect, signed by the letter Presidents of BDO XxxxxxxLittle Creek and Jenson Services;
(e) Jenson Services anx xxx Principals shall have complied in all material respects with its agreements and covenants herein, LLP referred and all representations and warranties of Jenson Services hexxxx xhall be true and correct in all material respects at the time of the Closing as if made at that time, except to the extent they expressly relate to an earlier date, and Mortgage Store and the Mortgage Store Stockholder shall have received a certificate to that effect, signed by the President of Jenson Services;
(f) A Good Standing Certificate of Little Creek, dated no more than 10 days prior to the Closing Date, from the Secretary of State of Delaware;
(g) All necessary third party and governmental consents and approvals required for transactions contemplated hereby shall have been obtained;
(h) The number of Little Creek Shares outlined in Section 7.8 hereofArticle 1.4 shall have been delivered to Little Creek for cancellation and evidence of such cancellation shall have been delivered to Mortgage Store;
(i) Little Creek shall have (a) received the requisite shareholder approval for its change of domicile from Utah to Delaware and the merger of Little Creek into its Delaware wholly-owned subsidiary, (b) file a Certificate of Incorporation with the Secretary of State of Delaware to authorize a class of preferred stock and (c) file a Certificate of Ownership and Merger effecting the merger of Little Creek into its Delaware wholly-owned subsidiary and changing its name to "TMSF Holdings, Inc.".
(j) Little Creek shall have delivered to Interwest Stock Transfer, Little Creek's transfer agent, certificates representing the Little Creek Shares which are being transferred hereunder, to be issued to the Mortgage Store Stockholder in accordance with the terms of this Agreement;
(k) The conditions set forth in Articles 1.4, 1.5, 1.6 and 1.7 shall have been complied with by the appropriate parties;
(l) The delivery of an opinion from Leonard W. Burningxxx, Xxx. xx xxx xxxx set forth on Schedule 5.2(l); and
(dm) NRLP and Newco The Mortgage Store Stockholder shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially executed and delivered this Agreement to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the CodeLittle Creek and Jenson Services.
Appears in 1 contract
Samples: Plan of Reorganization and Stock Exchange Agreement (Little Creek Inc)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect Clauses 3, 4 and 6 do not become binding on the Mergers. ----------------------------------------------------------- The respective obligations parties and have no force or effect, and Completion cannot take place, unless each of each party to effect the Mergers shall be subject to conditions listed in the fulfillment at or prior to the Effective Time first column of the following conditionstable has been either satisfied or waived in accordance with clause 2.4:
(a) This Agreement, satisfactory completion of the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted Buyer's due diligence as determined by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;Buyer in its sole discretion; Buyer
(b) The waiting period, if any, applicable all approvals of any Regulatory Authority which the Sellers and the Buyer agree are necessary or desirable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved implement the transactions contemplated by this Agreementagreement have been obtained either unconditionally or on conditions satisfactory to the Buyer acting reasonably and have not been withdrawn or revoked; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;Buyer
(dc) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree issued by any court of competent jurisdiction which prevents the consummation jurisdiction, no preliminary or final decision, determination, or order issued by any Regulatory Authority and no other legal restraint preventing any of the Mergers or imposes material conditions with respect thereto shall have transactions contemplated by this agreement is in effect; Buyer
(d) no Material Adverse Change has occurred; Buyer
(e) a resolution of the shareholders of any Seller that is not a natural person has been issued passed at a duly convened general meeting of that Seller to approve the transactions contemplated by this agreement and remain in effect (entry into and performance of each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);of the Transaction Documents by the relevant Seller; Buyer
(f) No action shall have been taken, the Buyer has received a certified copy of each consent required under each Lease and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent each Key Contract to the consummation acquisition of the Mergers Shares by the Buyer and the change of control of the Company resulting from that acquisition of the Shares each of which is unconditional or impose material subject only to conditions with respect theretoreasonably acceptable to the Buyer; andand Buyer
(g) The shares the Company and the relevant counterparties have executed binding agreements to reflect the following: (i) the royalty payment percentage payable by the Company to Xxxxx Xxxxxxxx and Xxxx XxXxx will be reduced from 12.5% to 6% and the Company will issue to Xxxxx Xxxxxxxx and Xxxx XxXxx or their designee 400,000 Shares, and (ii) the debt (inclusive of Newco Common Stock required principal and accrued and unpaid interest) of AUD $1,400,000 (US $1,287,076) owed by the Company to Xxxxxx Xxxxxxxx will be issued hereunder shall have been approved for listing reduced to AUD $700,000 (US $643,538) of which amount AUD $645,613 (US $593,538) will be payable by the Company to Xxxxxx Xxxxxxxx on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
Completion Date (a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection debt having been paid down with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure payment of AUD $54,387 (US $50,000) earlier paid by the Company to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.Xxxxxx Xxxxxxxx. Buyer
Appears in 1 contract
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect 2.1 Completion of the Mergers. ----------------------------------------------------------- The respective obligations Placing of each party to effect the Mergers shall be subject to the fulfillment at or prior to the Effective Time Tranche of the Convertible Notes is conditional upon the following conditionsconditions being fulfilled:
(a1) This Agreementthe Listing Committee of the Stock Exchange granting approval for the listing of, and permission to deal in, the Merger Agreements Conversion Shares fall to be issued upon the exercise of the conversion rights attaching to the Convertible Notes, either unconditionally or subject to conditions to which the Agent reasonably accepts and the satisfaction of such conditions;
(2) the passing by shareholders of the Company at the SGM resolutions approving this Agreement and the transactions contemplated hereby hereunder, including the Placing, and thereby shall have been approved and adopted by the affirmative vote of a majority issue of the outstanding shares of ART Common Stock Convertible Note(s) and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect theretoConversion Shares; and
(g3) The shares the Bermuda Monetary Authority granting its permission for the issue of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice Convertible Note(s) and the issue and allotment of issuancethe Conversion Shares (if required).
Section 8.2 Conditions 2.2 The Company shall use its best endeavours to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to procure the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART conditions referred to in Clauses 2.1 and in particular shall have performed in furnish such information, supply such documents, pay such fees, give such undertakings and do all material respects its agreements contained in this Agreement such acts and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and things as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall may be required by the Agent, the Stock Exchange and/or the Bermuda Monetary Authority in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain fulfillment of such consents conditions and approvals would not, individually or in will inform the aggregate, have a Material Adverse Effect on ART or upon Agent promptly following the consummation fulfillment of the transactions contemplated hereby;same.
(c) NRLP shall have received 2.3 In the letter of BDO Xxxxxxx, LLP event the conditions referred to in Section 7.8 hereofClause 2.1 are not fulfilled by 30 April 2014 (or such later date as may be agreed by the parties in writing hereto), all rights, obligations and liabilities of the parties hereunder in relation to the Placing shall cease and determine. Neither of the parties shall have any claim against the others in respect of any matter or thing arising out of or in connection with this Agreement save in respect of
(1) liabilities under Clause 6.1(2); and
(d2) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part any antecedent breach of a transaction that satisfies the requirements of Section 351 of the Codeany obligation under this Agreement.
Appears in 1 contract
Samples: Fundraising Agreement
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations No lease of each party to effect the Mergers Equipment under this Schedule shall be subject binding on Lessor, and Lessor shall have no obligation to purchase the fulfillment at or prior to the Effective Time of the following conditionsEquipment covered hereby, unless:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote Lessor has received evidence of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
all required insurance; (b) The waiting periodin Lessor's sole judgment, if anythere has been no material adverse change in the financial condition or business of Lessee or any guarantor, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall Lessee has signed and delivered to Lessor this Schedule, which must be required pursuant satisfactory to applicable laws, rules and regulationsLessor, and such Governmental EntitiesLessor has signed and accepted this Schedule; (d) no change in the Code or any regulation thereunder, which in Lessor's sole judgment would adversely affect the economics to Lessor of the extent required by applicable lawlease transaction, shall have approved the transactions contemplated by this Agreementoccurred or shall appear to be imminent; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining orderLessor has received, preliminary or permanent injunction or in form and substance satisfactory to Lessor, such other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto documents and information as Lessor shall have been issued and remain reasonably request (including, without limitation, Political Risk Insurance described below in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree liftedthis Schedule);
; (f) No action STB DE MEXICO, S.
A. DE C. V. shall have been taken, execute and no statute, rule or regulation shall have been enacted, deliver to Lessor a guaranty which must be satisfactory in form and substance to Lessor (such satisfaction to be evidenced by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect theretoLessors signature thereon); and
(g) The shares the sublease or bailment of Newco Common Stock required the Equipment described below in this Schedule by Lessee as sublessor or bailxx xx STB DE MEXICO, S.
A. DE C. V. shall be executed and delivered to be issued hereunder Lessor, and (h) Lessee has satisfied all other reasonable conditions established by Lessxx. Xxtwithstanding anything to the contrary above in this paragraph, if Lessor executes and delivers the Schedule to Lessee and if Lessor pays all of the suppliers of the Equipment the full Lessor's Cost of the Equipment (the date as of which both of said events shall have been approved for listing on occurred will be called the New York Stock Exchange"Funding Date"), subject then except as otherwise specified in writing by Lessor to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject Lessee before said Funding Date, all conditions to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to Schedule being binding on Lessor will be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Codedeemed satisfied.
Appears in 1 contract
Conditions. Section 8.1 Conditions Limit Of Liability Our total liability under Coverage E for all damages resulting from any one "occurrence" will not be more than the Coverage E limit of liability shown in the Declarations. This limit is the same regardless of the number of "insureds", claims made or persons injured. All "bodily injury" and "property damage" resulting from any one accident or from continuous or repeated exposure to Each Party's Obligation to Effect substantially the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers same general harmful conditions shall be subject considered to be the result of one "occurrence". Our total liability under Coverage F for all medical expense payable for "bodily injury" to one person as the result of one accident will not be more than the Coverage F limit of liability shown in the Declarations. What Must Be Done After A Loss In case of an "occurrence", you or another "insured" will perform the following duties that apply. We have no duty to provide coverage under this policy if your failure to comply with the following duties is prejudicial to us. You will help us by seeing that these duties are performed: 1. Give written notice to us or our agent as soon as is practical, which sets forth: a. The identity of the policy and the "named insured" shown in the Declarations; b. Reasonably available information on the time, place and circumstances of the "occurrence"; and c. Names and addresses of any claimants and witnesses; 2. Cooperate with us in the investigation, settlement or defense of any claim or suit; 3. Promptly forward to us every notice, demand, summons or other process relating to the fulfillment "occurrence"; 4. At our request, help us: a. To make settlement; b. To enforce any right of contribution or indemnity against any person or organization who may be liable to an "insured"; c. With the conduct of suits and attend hearings and trials; and d. To secure and give evidence and obtain the attendance of witnesses; 5. With respect to Damage To Property Of Others under Section II – Additional Coverages, submit to us within 60 days after the loss, a sworn statement of loss and show the damaged property, if in an "insured's" control; 6. No "insured" shall, except at such "insured's" own cost, voluntarily make payment, assume obligation or prior incur expense other than for first aid to others at the Effective Time time of the following conditions:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance"bodily injury".
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
Appears in 1 contract
Samples: Unit Owners Insurance Policy
Conditions. Section 8.1 Conditions If the Piggyback Registration Statement relates to Each Partyan underwritten Offering, as a condition to participation in such Piggyback Registration Statement, each Holder must agree to sell such Holder's Obligation Registrable Securities on the same basis provided in the underwriting arrangements approved by the Company (including without limitation the standard indemnification provisions contained therein) and to Effect timely complete and execute all customary questionnaires, powers of attorney, indemnities, holdback agreements, underwriting agreements and other documents reasonably required under the Mergers. ----------------------------------------------------------- The respective obligations terms of each party such underwriting arrangements or required by the Commission or by any state securities regulatory body; provided, however, that no Holder shall be required to make any representation or warranty in connection with any such Offering other than representations and warranties as to (i) such Holder's ownership of his or its Registrable Securities to be sold or transferred free and clear of all liens and encumbrances, (ii) such Holder's power and authority to effect the Mergers shall be subject such transfer, and (iii) such matters pertaining to the fulfillment at or prior to the Effective Time of the following conditions:
(a) This Agreement, the Merger Agreements compliance with securities laws and the transactions contemplated hereby other applicable laws and thereby shall have been approved governmental rules and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting periodregulations, if any, applicable as may be reasonably requested; provided further, that the obligation of such Holders to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as provide indemnification pursuant to such underwriting agreement shall be required pursuant to applicable lawsseveral, rules not joint and regulationsseveral, among all such Persons selling Shares, and the liability of each such Holder will be in proportion to, and such Governmental Entitiesliability will be limited to, the net amount received by such Holder from the sale of his or its Registrable Shares pursuant to the extent required Offering. If any Person requesting inclusion in a registration statement does not agree to the conditions set forth in this subsection, such Person will be excluded from the Offering by applicable law, shall have approved written notice from the transactions contemplated by this Agreement; except where Company or the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLPunderwriter, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to securities so excluded will be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuancewithdrawn from registration.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
Appears in 1 contract
Samples: Registration Rights Agreement (Univision Communications Inc)
Conditions. Section 8.1 6.1 Conditions to Each Partyof Getty's and PTI's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party Getty and PTI to effect the Mergers shall will be subject to the fulfillment or waiver by both parties at or prior to the Effective Time Closing Date of the following conditions:
(a) This Agreement, the The Getty Merger Agreements and the transactions contemplated hereby and thereby this Agreement shall have been validly approved and adopted by (i) the affirmative vote of the holders of at least that number of outstanding shares of Getty Common Stock required to approve the Getty Merger under the DGCL and Getty's certificate of incorporation and (ii) the affirmative vote of the holders of a majority of the outstanding shares of ART Getty Common Stock not held or directly or indirectly controlled by Messrs. Leo Xxxxxxxxx, Xxltxx Xxxxxx xxx Miltxx Xxxxxxxxxx xxx their spouses and NRLP Units entitled affiliated trusts (collectively, the "Principal Holders") voting on the Getty Merger and this Agreement at the stockholders' meeting referred to vote;
in Section 5.2 (the "Getty Stockholder Approvals"); (b) The waiting period, if any, applicable to PTI Merger and this Agreement shall have been validly approved and adopted by (i) the consummation affirmative vote of the Mergers holders of at least that number of LP Units required to approve the PTI Merger under the HSR Act shall have expired NLPA and the Partnership Agreement and (ii) the affirmative vote of the holders of a majority of the LP Units not held or been terminated;
directly or indirectly controlled by the Principal Holders voting on the PTI Merger and this Agreement at the unitholders' meeting referred to in Section 5.2 (the "PTI Unitholder Approvals"); (c) The parties hereto shall have made the requisite filings with all Governmental Entities as Neither Getty nor PTI shall be required pursuant subject to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary decree, ruling or permanent injunction or other order or decree by any of a court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunctionby a governmental, order regulatory or decree lifted);
(f) No action shall have been takenadministrative agency or commission, and no law, statute, rule or regulation shall have been enactedpromulgated or enacted by a governmental or regulatory authority, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon prohibits the consummation of the transactions contemplated herebyby this Agreement or would otherwise impair the ability of Holdings to operate the business of Getty and PTI on a consolidated basis following the Closing;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
Appears in 1 contract
Samples: Merger Agreement (Power Test Investors LTD Partnership)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party the Agents to effect the Mergers proceed hereunder shall be subject to the fulfillment at or prior to the Effective Time condition that all representations and warranties of the following conditions:
(a) This AgreementCompany herein are, at and as of the date hereof, as of the Closing Date, as of each Settlement Date with respect to any applicable Terms Agreement and each Settlement Date under the Procedures, true and correct, the Merger Agreements and condition that the transactions contemplated hereby and thereby Company shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled performed all its obligations hereunder theretofore to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulationsperformed, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART Neither the Registration Statement nor the Prospectus, as amended or supplemented as of any Representa tion Date, shall contain any untrue statement of fact which is material or omit to state a fact which is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(b) On or within five days prior to the Closing Date, the Agents shall have performed received a letter, dated the date of delivery thereof, of Deloitte & Touche, or a successor firm, confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder and stating in effect that:
(i) in their opinion, the financial statements and schedules examined by them and included in the Pro spectus contained in the Registration Statement relating to the Securities, as amended at the date of such letter, comply in form in all material respects its agreements with the applicable accounting requirements of the Act and the related published Rules and Regulations;
(ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have respon sibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that the unaudited financial statements, if any, included in such Prospectus do not comply in form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations or are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in such Prospectus; and
(iii) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in such Prospec tus (in each case to the extent that such dollar amounts, percentages and other financial information are contained in the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial infor mation to be in agreement with such results, except as otherwise specified in such letter. All financial statements and schedules included in material incorporated by reference into such Prospectus shall be deemed included in such Prospectus for purposes of this subsection.
(c) No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or any Agent, shall be contemplated by the Commission.
(d) There shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries which, in the judgment of any Agent, materially impairs the investment quality of the Securities; (ii) any downgrading in the rating or placement under creditwatch (other than such a placement with positive implications) of the Company's debt securities by Moody's Investors Service, Xxx., or Standard & Poor's Corporation; (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by Federal or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of any Agent, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with the completion of the sale of and payment for the Securities.
(e) The Agents shall have received the following:
(i) An opinion, dated the Closing Date, of the Senior Vice President and General Counsel or the Assistant General Counsel of the Company, or other counsel satisfactory to the Agents, to the effect that:
(A) the Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Utah, with corpo rate power and authority to own its properties and conduct its business as described in the Prospec tus; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which it is required to be so qualified, except where the failure to be so qualified would not involve a material risk to the business, operations or financial condition or results of the Company and its subsidiaries, taken as a whole;
(B) the Indenture has been duly authorized, executed and delivered by the Company and has been duly qualified under the Trust Indenture Act; the Securities have been duly authorized; the Indenture constitutes, and the Securities, when executed, authenticated, issued and delivered in the manner provided in the Indenture and sold pursuant to this Agreement or any Terms Agreement, will constitute, valid and legally binding obliga tions of the Company, enforceable in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; and the Securities, when so issued and delivered and sold, will conform to the description thereof contained in the Prospectus;
(C) no consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consumma tion of the transactions contemplated by this Agreement or any Terms Agreement, except (i) such as have been obtained and made under the Act and the Trust Indenture Act and (ii) such as may be required under state securities laws in connection with the issuance or sale of the Securities by the Company;
(D) the execution, delivery and performance of the Indenture, this Agreement and any Terms Agreement and the Merger Agreements issuance and sale of the Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Company or any of its properties or any agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties of the Company is subject, or the charter or by-laws of the Company, and the Company has full power and authority to authorize, issue and sell the Securities as contemplated by this Agreement and any Terms Agreement;
(E) the Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel, no stop order suspend ing the effectiveness of the Registration State ment or of any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(F) based on the information gained in the course of such counsel's participation, in such counsel's role as Senior Vice President and General Counsel or Assistant General Counsel, in certain meetings and making of certain inquiries and investigations in connection with the preparation of the Registration Statement and the Prospectus, the Registration Statement, as of the Effective Date, the Registration Statement and the Prospectus as amended or supplemented, as of the Closing Date, and any further amendment or supplement thereto, as of its date, appeared on their face to be appropriately responsive in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations; nothing has come to such counsel's attention in the course of performing such activities that caused such counsel to believe that the Registration Statement, as of the Effective Date, the Registration Statement or the Prospectus as amended or supplemented, as of the Closing Date, or any such amendment or supplement, as of its date, contains or contained any untrue statement of a material fact or omits or omitted to state any material fact required to be performed on stated therein or prior necessary to make the statements therein not misleading; provided, however, that such counsel may state that in rendering the foregoing opinion in this clause (F), such counsel does not assume responsibility for the accuracy or completeness of statements made in the Registration Statement and the Prospectus; the descriptions in the Registration Statement and the Prospectus as amended or supplemented of statutes, legal and governmental proceedings and contracts and other documents fairly present the information required to be shown; and such counsel does not know of any legal or governmental proceedings required to be described in the Prospectus as amended or supplemented which are not described as required or of any contracts or documents of a character required to be described in the Registration Statement or the Prospectus as amended or supplemented or to be filed as exhibits to the Effective Time Registration Statement which are not described and filed as required, it being under stood that such counsel need express no opinion as to the financial statements or other financial data contained in the Registration Statement or the Prospectus as amended or supplemented; and
(G) this Agreement has been duly authorized, executed and delivered by the Company. In rendering his opinion pursuant to this paragraph, such counsel may rely, as to all matters governed by Utah law, on the opinion of Steven A. Goodsell, Esq., xx Xxxxxx X. Xxxxxy, Esq., or xxxxx Xxxx counsel satisfactory to the Agents, a copy of which shall be provided concurrently with the opinion of such Senior Vice President and General Counsel or Assistant General Counsel.
(ii) Such opinion or opinions, dated the Closing Date, relating to this Agreement of Cravath, Swaine & Moore, counsel for the Agexxx, with respect to the incorporation of the Company, the validity of the Securities, the Indenture, the Registration Statement, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In render ing such opinion, Cravath, Swaine & Moore may rely, as to all xxxxxrs governed by Utah law, upon the opinion of Mr. Goodsell or such other xxxxxxx referred to above.
(iii) A certificate of the Chairman, the President, any Senior Vice President, any Vice President or the Treasurer and a principal financial or accounting officer of the Company, dated the Closing Date, in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties of ART contained the Company in this Agreement and the Merger Agreements shall be are true and correct in all material respects on and as of such Closing Date with the date of this Agreement and on and as of the Effective Time same effect as if made on such Closing Date, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or, to their knowledge, threatened as of such date, and that, subsequent to the dates of the most recent financial statements included or incorporated by reference in the Prospectus as amended or supplemented, there has been no material adverse change in the financial position or results of operations of the Company and its subsidiaries, viewed as a whole, except as set forth or contemplated in the Prospectus as amended or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President supplemented or of an Executive Vice President of ART to that effect;as described in such certificate.
(biv) ART If any Agent shall have obtained so request, as of any Settlement Date with respect to any applicable Terms Agreement, a letter, dated as of such Settlement Date, of Deloitte & Touche or a successor firm reconfirming the consent or approval of each person whose consent or approval shall be required matters set forth in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the their letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially delivered to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Agents pursuant to Section 351 of the Code5(b) hereof.
Appears in 1 contract
Conditions. Section 8.1 (a) Conditions Precedent to Each Party's Obligation to Effect the MergersParticipations in the Aircraft. ----------------------------------------------------------- The respective It is agreed that the obligations of each party of the Pass Through Trustee and the Owner Participant to effect participate in the Mergers shall be payment of Lessor's Cost and to make available the amount of its respective Commitment are subject to the fulfillment at satisfaction prior to or on the Delivery Date of the following conditions precedent, except that paragraphs (iii), (v)(5), (xxi), (xxii) and (xxiv) shall not be a condition precedent to the obligations of the Pass Through Trustee, and paragraphs (iv), (vii)(D) and (xiv) shall not be a condition precedent to the obligation of the Owner Participant:
(i) The Pass Through Trustee and the Owner Participant shall have received due notice with respect to such participation pursuant to Section 2 hereof (or shall have waived such notice either in writing or as provided in Section 2).
(ii) No change shall have occurred after the date of the execution and delivery of this Agreement in applicable law or regulations or guidelines or interpretations thereof by appropriate regulatory authorities which would make it a violation of law or regulations or guidelines for the Pass Through Trustee or the Owner Participant to make its Commitment available in accordance with Section 1 hereof.
(iii) In the case of the Owner Participant, the Pass Through Trustees shall have made available the amount of their Commitments for the Aircraft in accordance with Section 1 hereof.
(iv) In the case of the Pass Through Trustees, the Owner Participant shall have made available the amount of its Commitment for the Aircraft in accordance with Section 1 hereof.
(v) The following documents shall have been duly authorized, executed and delivered by the respective party or parties thereto, shall each be satisfactory in form and substance to the Pass Through Trustee and the Owner Participant and shall be in full force and effect and executed counterparts shall have been delivered to the Pass Through Trustee and the Owner Participant, or their respective counsel, provided that only the Subordination Agent on behalf of each Pass Through Trustee shall receive an executed original of such Pass Through Trustee's respective Secured Certificate and provided, further, that an excerpted copy of the Purchase Agreement shall only be delivered to and retained by the Owner Trustee (but the Indenture Trustee shall also retain an excerpted copy of the Purchase Agreement which may be inspected by the Owner Participant and its counsel prior to the Effective Time Delivery Date and subsequent to the Delivery Date may be inspected and reviewed by the Indenture Trustee if and only if there shall occur and be continuing an Event of Default), the chattel paper counterpart of the following conditionsLease and the Lease Supplement covering the Aircraft dated the Delivery Date shall be delivered to the Indenture Trustee, and the Tax Indemnity Agreement need only be satisfactory to the Owner Participant and Lessee and shall only be delivered to Lessee and the Owner Participant and their respective counsel:
(a1) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority an excerpted copy of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
Purchase Agreement (b) The waiting period, if any, applicable insofar as it relates to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree liftedAircraft);
(f2) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Purchase Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effectAssignment;
(b3) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated herebyLease;
(c4) NRLP shall have received a Lease Supplement covering the letter Aircraft dated the Delivery Date;
(5) the Tax Indemnity Agreement;
(6) the Trust Agreement;
(7) a Trust Supplement covering the Aircraft dated the Delivery Date;
(8) the Xxxx of BDO XxxxxxxSale;
(9) the FAA Xxxx of Sale;
(10) an acceptance certificate covering the Aircraft in the form agreed to by the Owner Participant and Lessee (herein called the "Acceptance Certificate") duly completed and executed by the Owner Trustee or its agent, LLP referred to in Section 7.8 hereofwhich may be a representative of Lessee, and by such representative on behalf of Lessee;
(11) the Trust Indenture;
(12) the Secured Certificates;
(13) the Consent and Agreement; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
Appears in 1 contract
Samples: Participation Agreement (Northwest Airlines Holdings Corp/Pred)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect This Agreement and the Mergers. ----------------------------------------------------------- The respective rights and obligations of each party the parties to effect the Mergers shall be subject to the fulfillment at or prior to the Effective Time of the following conditionsthis Agreement are conditional upon:
(a) This Agreementthere having been, as at the Merger Agreements 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 the Issuer or the Issuer’s Group, since the date of this Agreement or from that set out in the Prospectus and the transactions contemplated hereby Preliminary Prospectus and thereby shall have been approved and adopted by the affirmative vote of a majority no event making any of the outstanding shares of ART Common Stock representations and NRLP Units entitled warranties contained in subclause 6.1 untrue or incorrect on the Closing Date as though they had been given and made on such date and the Issuer having performed all the obligations to votebe performed by it under this Agreement on or before the Closing Date;
(b) The waiting period, if any, applicable the delivery to the consummation Joint Lead Managers on or before the Closing Date or, in the case of clause 8.1(b)(iii) below, the date hereof and the Closing Date of:
(i) legal opinions dated the Closing Date in such form and with such contents as the Joint Lead Managers may require from Xxxxxxxx Chance US LLP, legal advisers to the Issuer in the United States of America and the State of Delaware, from the General Counsel of the Mergers under Issuer as to the HSR Act shall have expired or been terminatedlaws of the United States of America and the State of Delaware and from Xxxxx & Overy LLP, legal advisers to the Joint Lead Managers in England;
(ii) a certificate signed by a duly authorised officer of the Issuer to the effect stated in subclause 8.1(a);
(iii) comfort letters from the auditors of the Issuer, substantially in the form attached as Annex 1 (Part 1 in the case of the letter delivered on the date hereof, and Part 2 in the case of the letter delivered the Closing Date) to this Agreement; and
(iv) any other documents (including, but not limited to, any resolutions, consents and authorities) relating to the issue of the Notes which the Joint Lead Managers may reasonably require;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable lawsNotes, rules and regulations, and such Governmental Entities, subject only to the extent required by applicable lawexecution, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would notauthentication, individually or in the aggregate, have a Material Adverse Effect on ART effectuation and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation delivery of the transactions contemplated herebyTemporary Global Note, being admitted to trading on the Luxembourg Stock Exchange’s regulated market;
(d) The Form S-4 shall have become effective in accordance with the provisions execution of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effectAgency Agreement by the parties thereto on or before the Closing Date;
(e) No temporary restraining orderno rating agency having downgraded, preliminary nor given notice or permanent injunction made any public announcement of any intended or potential downgrading or of any review or surveillance with negative implications of, the rating accorded to the Notes or any other order or decree by any court of competent jurisdiction which prevents the consummation debt securities of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted)Issuer;
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation confirmation of the Mergers or impose material conditions execution and delivery by the Issuer of the effectuation authorisation to each of Euroclear Bank S.A./N.V. and Clearstream Banking, société anonyme (the ICSDs), the execution and delivery of an Issuer-ICSD Agreement by the parties thereto and the making by the Fiscal Agent (as defined in the Agency Agreement) of a common safekeeper election in accordance with respect theretosub-clause 3.4 of the Agency Agreement;
(g) no supplement having been prepared pursuant to clause 6.6 and/or 7.3; and
(gh) The shares the competent authority of Newco Common Stock required each relevant European Economic Area Member State (other than Luxembourg) where the Notes are intended to be issued hereunder shall have listed having been approved for listing on notified in accordance with the New York Stock Exchangeprocedures set out in Articles 17 and 18 of the Prospectus Directive and all requirements under those Articles having been satisfied and, subject if required pursuant to official notice Article 19(4) of issuancethe Prospectus Directive, a summary having been drawn up.
Section 8.2 Conditions In the event that any of the conditions set out in subclause 8.1 is not satisfied on or before their respective dates, this Agreement shall (subject as mentioned below) terminate and the parties hereto shall (except for the liability of the Issuer in relation to Obligation expenses as provided under, or under any arrangements referred to in, clause 5 and except for any liability arising before or in relation to such termination) be under no further liability arising out of NRLP to Effect this Agreement, provided that the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject Joint Lead Managers may in their discretion and by notice to the fulfillment at or prior to the Effective Time Issuer waive satisfaction of any of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President above conditions or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Codethem.
Appears in 1 contract
Conditions. Section 8.1 5.1 Mutual Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- in Favour of Champignon and AltMed The respective obligations of each party AltMed and Champignon to effect complete the Mergers shall be transactions contemplated herein are subject to the fulfillment of the following conditions at or prior to before the Effective Time of the following conditionsor such other time as is specified below:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby AltMed Shareholder Approval shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 shall have become effective obtained in accordance with the provisions of the Securities Act, BCBCA and no stop order suspending such effectiveness the requirements of any applicable regulatory authority;
(b) the CRTCE Acquisition shall be been completed on the terms disclosed to Champignon;
(c) NewCo Shareholder Approval shall have been issued provided by Champignon in accordance with the BCBCA and remain the requirements of any applicable regulatory authority;
(d) each of the AltMed Board and the Champignon Board and the NewCo Board shall have adopted all necessary resolutions and all other necessary corporate action shall have been taken by AltMed, Champignon and NewCo to permit the consummation of the Amalgamation and all other matters contemplated in effectthis Agreement;
(e) No temporary restraining orderthe CSE shall have accepted notice for filing of and approved all transactions of Champignon contemplated herein or necessary to complete the Amalgamation, preliminary or permanent injunction subject only to compliance with the usual requirements of the CSE, as applicable;
(f) Newco shall not have engaged in any business enterprise or other activity or had any assets or liabilities;
(g) the distribution of the Champignon Securities pursuant to the Amalgamation shall be exempt from prospectus requirements under applicable securities Laws of Canada and, except with respect to persons deemed to be “control persons” of Champignon under such securities Laws, such Champignon Shares shall be subject to any resale restrictions in Canada under such securities Laws and where applicable the voluntary resale restrictions;
(h) no proceeding commenced by a Government Entity shall be pending or threatened against any party seeking to restrain or prohibit the transactions contemplated by this Agreement, and there shall be no order or decree by of any court nature of any Government Entity of competent jurisdiction which or any Law that is in effect that restrains, prohibits or prevents the consummation of the Mergers Amalgamation or imposes material conditions with respect thereto that has the effect of rendering it unlawful to consummate the transactions contemplated by this Agreement;
(i) all consents, approvals and waivers of any Government Entity necessary under applicable Laws in order to permit consummation of the Amalgamation and the transactions contemplated hereunder shall have been issued obtained, and remain all notices to any Government Entity necessary under applicable Laws in effect (each party agreeing order to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action permit consummation of the Amalgamation and the transactions contemplated hereunder shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect theretodelivered; and
(gj) The shares of Newco Common Stock required to be issued hereunder this Agreement shall not have been approved terminated. The foregoing conditions are for listing the mutual benefit of the Parties and may be waived by mutual consent of Champignon and AltMed in writing at any time. No such waiver shall be of any effect unless it is in writing signed by both Parties. If any of such conditions shall not be complied with or waived as aforesaid on or before the New York Stock ExchangeCompletion Deadline or, if earlier, the date required for the performance thereof, then, subject to official Section 5.4, any Party may terminate this Agreement by written notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at other Party in circumstances where the failure to satisfy any such condition is not the result, directly or prior to the Effective Time indirectly, of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date a breach of this Agreement and on and as of the Effective Time as if made on and as of by such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Codeterminating Party.
Appears in 1 contract
Samples: Amalgamation Agreement
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers Agent hereunder shall be conditional upon the Agent receiving, and the Agent shall have the right on the Closing Date on behalf of Subscribers for Offered Securities to withdraw all Subscription Agreements delivered and not previously withdrawn by Subscribers unless the Agent receives, on or before each Closing Date:
(a) favourable legal opinions of the Corporation’s counsel addressed to the Agent and the Subscribers, in form and substance reasonably satisfactory to the Agent, with respect to such matters as the Agent may reasonably request relating to the offering of the Offered Securities, as applicable, including, without limitation, that:
(i) the Corporation has been duly incorporated in Delaware, is validly subsisting and has all requisite corporate power and authority to carry on its business as now conducted by it and to own its properties and assets and is qualified to carry on business in Delaware;
(ii) the Corporation has full corporate power and authority to enter into this Agreement, the Agent’s Warrants and the Subscription Agreements and this Agreement, the Subscription Agreements and the Agent’s Warrants have been duly authorized by the Corporation and constitute legal, valid and binding obligations of the Corporation enforceable against the Corporation in accordance with their respective terms subject to normal qualifications including those relating to creditors’ rights generally and except that rights to indemnity may be limited by applicable law;
(iii) the execution and delivery of this Agreement, the Agent’s Warrants, and the Subscription Agreements, and the fulfilment of the terms hereof and thereof by the Corporation, and the performance of and compliance with the terms of this Agreement (including, without limitation, the grant of the Over-Allotment Option), the Agent’s Warrants and the Subscription Agreements by the Corporation do not and will not result in a breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under, (i) any laws in the Province of Alberta; (ii) any term or provision of the articles or by laws of the Corporation, or (iii) so far as counsel is aware, any mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Corporation is a party or by which the Corporation is bound on the Closing Date, which might reasonably be expected to materially adversely affect the business, operations, capital or condition (financial or otherwise) of the Corporation or the Corporation’s Subsidiaries (taken as a whole) or its properties or assets;
(iv) all Applicable Securities Laws in connection with the creation, offering, issuance and sale of the Offered Securities and the creation, issuance and delivery of the Agent’s Warrants have been complied with;
(v) in reliance upon a certificate of an officer of the Corporation, except as a result of any agreement to which the Corporation is not a party and of which the Corporation has no knowledge, the Flow-Through Shares, at the time of issuance, will be Flow-Through shares as defined in subsection 66(15) of the Act and will not constitute “prescribed shares” for purposes of Regulation 6202.1 of the Regulations of the Act; and additionally, relating to:
(vi) the first trade in the Offered Securities (including any Over-Allotment Shares issuable upon exercise of the Over-Allotment Option) and the Common Shares received upon exercise of the Agent’s Warrants; and as to all other legal matters as the Agent or Agent’s counsel may reasonably request, including, compliance with Applicable Securities Laws in any way connected with the creation, issuance, sale and delivery of the Offered Securities, the first trade of the Offered Securities and the Common Shares issuable upon exercise of the Agent’s Warrants, being subject to a hold period, including a four month and a day hold period under Applicable Securities Laws in the Selling Jurisdictions (subject to the fulfillment conditions provided for under the Resale Rules). It is understood that the respective counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Alberta, British Columbia, Ontario or Québec and on certificates of officers of the Corporation and the auditors of the Corporation and the registrar and transfer agent of the Common Shares as to relevant matters of fact;
(b) a certificate of the Corporation dated the Closing Date, addressed to the Agent and the Agent’s counsel and signed on the Corporation’s behalf by its Chief Executive Officer and Chief Financial Officer (or other senior officer of the Corporation acceptable to the Agent), certifying that:
(i) the Corporation has complied with and satisfied all terms and conditions of this Agreement on its part to be complied with or satisfied at or prior to the Effective Time Closing Time;
(ii) the representations and warranties of the following conditions:Corporation set forth in this Agreement are true and correct at the Closing Time, as if made at such time except for any increase in the number of issued Common Shares resulting from the exercise of stock options or share purchase warrants referred to in subparagraph 6(u) of this Agreement;
(aiii) This no event of a nature referred to in subparagraphs 12(a), (b), (c) or (d) has occurred or to the knowledge of such officers is pending, contemplated or threatened, excluding with respect to subparagraphs 12(b), (c) and (d) of this Agreement any obligation to make a determination as to the Agent’s opinion; and
(iv) the Corporation has made or obtained on or prior to the Closing Time, all necessary filings, approvals, consents and acceptances of applicable regulatory authorities and under any applicable agreement or document to which the Corporation is a party or by which it is bound, required for the execution and delivery of this Agreement, the Merger Agreements offering and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority sale of the outstanding shares of ART Common Stock Offered Securities and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under other transactions contemplated hereby (subject to completion of filings with certain regulatory authorities following the HSR Act applicable Closing Date, and the Agent shall have expired or been terminatedno knowledge to the contrary;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable lawsdefinitive certificates representing, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation all of the transactions contemplated herebyOffered Securities, issued on the applicable Closing Date and registered in such name or names as the Agent shall notify the Corporation in writing not less than twenty-four (24) hours prior to each Closing Time;
(d) The Form S-4 shall have become effective in accordance with evidence satisfactory to the provisions Agent that the Corporation has made application to list and post for trading its Common Shares (including the Offered Securities and the Common Shares issuable upon exercise of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effectAgent’s Warrants) on the Exchange;
(e) No temporary restraining orderevidence satisfactory to the Agent that all necessary steps, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents procedures and conditions (including all conditions to closing pursuant to the consummation of the Mergers or imposes material conditions with respect thereto shall Thunder Agreement) have been issued and remain in effect (each party agreeing fulfilled or waived to use its reasonable efforts close the Thunder Acquisition, subject to have any such injunction, order or decree lifted);US$900,000 being paid by the Corporation to Thunder River Energy Inc.; and
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation copies of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on Subscription Agreements delivered by the New York Stock ExchangeAgent and duly executed by the Corporation, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject each in form and substance reasonably satisfactory to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement Agent and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the CodeAgent’s counsel.
Appears in 1 contract
Conditions. Section 8.1 Loss Conditions Duties In The Event Of Accident, Claim Or Suit n Intheeventof“accident,” claim or “suit” that is likely to Each Party's Obligation to Effect involve this Policy, the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect “policyholder” or the Mergers shall be subject to the fulfillment at “insured”must give us or prior to the Effective Time our authorized representative prompt notice of the following conditions:
(a) This Agreement“accident.” Include: • How, when and where the “accident” occurred; • The “insured’s” name and address; and • To the extent possible, the Merger Agreements names and addresses of any injured persons and witnesses. Legal Action Against Us No one may bring a legal action against us under this Policy until: n There has been full compliance with all the terms of this Policy. Appeals If an “insured” or “underlying insurer” elects not to appeal judgments in excess of the “minimum financial responsibility liability limits,” we may elect to appeal such judg- ments at our own expense, but in no event shall our liability for the “ultimate net loss” exceed the Limit Of Insurance plus expenses incurred in such an appeal. Transfer Of Rights Of Recovery Against Others To Us n If any person or organization to or for whom we make payment under this Policy has rights to recover damages from another, those rights are transferred to us. That person or organization must do everything necessary to secure our rights and must do nothing after “accident” to impair them. General Conditions Attachment of Liability n Liability under this Policy shall not attach until the“minimum financial responsibility liability limits” have been exhausted by payment of judgments or settlements and the transactions contemplated hereby “insured” has become legally obli gated to pay the “ultimate net loss” in excess of such “minimum financial responsibility liability limits.” Coverage Territory n The coverage territory is as stated in the “rental agreement” and thereby shall have been approved is further limited to: • The United States of America; • The territories and adopted by the affirmative vote of a majority possessions of the outstanding shares United States of ART Common Stock America; • Puerto Rico; and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance• Canada.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
Appears in 1 contract
Samples: Rental Agreement
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be Purchaser under this Agreement are subject to the fulfillment following conditions for the exclusive benefit of the Purchaser being: (i) fulfilled in all material respects in the reasonable opinion of the Purchaser at the Time of Closing; or, (ii) where such conditions are not so fulfilled, (A) waived by the Purchaser at or prior to before the Effective Time of Closing; or (B) if agreed by the following conditionsVendor, Wave Wireless and the Purchaser, indemnified for by the Vendor and Wave Wireless:
(a) This Agreement, the Merger Agreements representations and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority warranties of the outstanding shares Vendor and Wave Wireless contained in this Agreement will be true and correct on and as of ART Common Stock and NRLP Units entitled to votethe Closing Date;
(b) The waiting periodthe Vendor and Wave Wireless will have complied with all terms, if any, applicable covenants and agreements in this Agreement agreed to be performed or caused to be performed by it on or before the consummation of the Mergers under the HSR Act shall have expired or been terminatedClosing Date;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant no material loss or destruction of or damage to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 shall have become effective in accordance with the provisions assets of any of the Securities Act, and no stop order suspending such effectiveness shall Acquired Companies will have been issued and remain in effect;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of occurred between the date of this Agreement and on and as the Time of Closing;
(d) no action or proceeding against any of the Effective Time as if made on Acquired Companies, the Vendor or Wave Wireless will be pending or threatened by any person, company, firm, governmental authority, regulatory body or agency to enjoin or prohibit:
(i) the purchase and as sale of such date, except as the Acquired Shares contemplated or permitted by this Agreement and or the Merger Agreements, and NRLP shall have received a certificate right of the President or Purchaser to own the Acquired Shares; or
(ii) the right of an Executive Vice President each of ART the Acquired Companies to that effectconduct its operations and carry on its Business in the ordinary course as such Business and operations have been carried on in the past;
(be) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with Vendor and Wave Wireless will tender to the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or Purchaser a Vendor’s Closing Certificate substantially in the aggregate, have a Material Adverse Effect on ART or upon form of Schedule 3 signed by the consummation Vendor certifying the truth and correctness at the closing of the transactions contemplated herebyrepresentations and warranties of the Vendor and Wireless contained in Article 4, the performance of all covenants and agreements of the Vendor and Wave Wireless and that the condition described in subsection 8.1(d) does not exist as at the Closing Date;
(cf) NRLP shall all directors and officers of the Acquired Companies specified by the Purchaser will resign and only the employees listed in Schedule 8 will be employed by the Acquired Companies;
(g) the Vendor, Wave Wireless and all directors, officers and shareholders of the Acquired Companies will have received executed releases in favour of the letter Acquired Companies, in a form satisfactory to the Purchaser, from any and all possible claims against the Acquired Companies arising from any act, matter or thing arising at or before the Time of BDO Xxxxxxx, LLP referred Closing;
(h) all necessary steps and proceedings will have been taken to permit the Acquired Shares to be duly and regularly transferred to and registered in Section 7.8 hereofthe name of the Purchaser; and
(di) NRLP The Vendor and Newco Wave Wireless will deliver to the Purchaser at the Time of Closing an opinion of the Vendor’s and Wave Wireless’ counsel, addressed to the Purchaser, in form satisfactory to Purchaser’s counsel that:
(i) Each of the Acquired Companies is a valid and subsisting corporation, duly incorporated and organized under laws of the Canada, Ontario and Nevada as the case may be and is in good standing with respect to the filing of annual reports pursuant to the Canada Business Corporations Act, Ontario Business Corporations Act and the General Corporation Law of the State of Nevada Act, as the case may be;
(ii) the number of authorized and issued shares in the capital of the Acquired Companies is as warranted by the Vendor and Wave Wireless and the Shares are duly authorized, validly issued and outstanding as fully paid and non-assessable; and
(iii) all necessary steps and corporate proceedings have been taken to permit the Shares to be duly and validly transferred to and registered in the name of the Purchaser.
(j) all actions, proceedings, instruments and documents required to implement this Agreement, or instrumental thereto, and all legal matters relating to the purchase of the Acquired Shares, shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially been approved as to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Codeform and legality by Purchaser’s counsel, acting reasonably.
Appears in 1 contract
Conditions. Section 8.1 7.1 Conditions to Each Party's Obligation to Effect the MergersMerger. ----------------------------------------------------------- The respective obligations of each party Party to effect the Mergers Merger shall be subject to the fulfillment at or prior to the Effective Time of the following conditions:
(a) This Agreement, the Merger Agreements Agreement and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative requisite vote of a majority the holders entitled to vote of the outstanding shares of ART Ultrak Common Stock and NRLP Units entitled to vote;Ultrak Preferred Stock, on the one side, and Checkpoint Common Stock, on the other side.
(b) The waiting period, if any, period applicable to the consummation of the Mergers Merger under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(ed) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers Merger or imposes material conditions with respect thereto shall have been issued and remain in effect (each party Party agreeing to use its reasonable best efforts to have any such injunction, order or decree lifted);
(fe) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency Governmental Entity which would prevent the consummation of the Mergers Merger or impose imposes material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(bf) ART shall have obtained All consents and approvals of all Governmental Entities legally required for the consent or approval consummation of each person whose consent or approval shall be required in connection with the Merger and the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrumentshall have been obtained and be in effect at the Effective Time, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART Checkpoint, or upon the consummation of the transactions contemplated herebyhereby and all state securities or blue sky permits and other authorizations necessary to issue the shares of Checkpoint Common Stock pursuant to this Agreement and the Merger Agreement and as contemplated by Section 6.7 hereof;
(cg) NRLP The shares of Checkpoint Common Stock into which the Ultrak Common Stock and Ultrak Preferred Stock will be converted pursuant to Section 2.1(b) hereof and the shares of Checkpoint Common Stock issuable upon exercise of the Ultrak Stock Options pursuant to Section 6.7 hereof shall have received been duly approved for listing on the NYSE, subject to official notice of issuance;
(h) Each of Checkpoint and Ultrak shall receive a letter of BDO from Coopers & Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially Xxxxxxxx, both dated as of the Closing Date, to the effect that the NRLP Merger transactions contemplated hereby will qualify for pooling of interests accounting treatment; and
(i) Checkpoint shall be treated for federal income tax purposes as part of a transaction that satisfies have received from each Person specified in Section 6.5 hereof the requirements of written agreement referred to in such Section 351 of the Code6.5.
Appears in 1 contract
Conditions. The effectiveness of the provisions set forth in this Agreement, including the amendments set forth in Section 8.1 Conditions to Each Party's Obligation to Effect 4 of this Agreement, in each case, is subject to, and conditioned upon, the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be subject to the fulfillment at or prior to the Effective Time satisfaction of the following conditionsconditions precedent on the Fourth Amendment Effective Date:
(a) This AgreementBorrower, the Merger Agreements each other Loan Party, Agent and the transactions contemplated hereby Required Lenders shall each have executed and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to votedelivered this Agreement;
(b) The waiting period, if any, applicable the Lenders shall have received evidence satisfactory to the consummation Lenders that the Series DF-1 Certificate of Designation has been filed with the Secretary of State of the Mergers under the HSR Act shall have expired or been terminatedState of Delaware and has become effective;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as representations and warranties set forth in this Agreement shall be required pursuant to applicable lawstrue, rules complete and regulationscorrect in all material respects (without duplication of any materiality qualifier contained therein) as of the Fourth Amendment Effective Date, and such Governmental Entities, except to the extent required by applicable lawthat such representation or warranty expressly relates to an earlier date (in which event such representations and warranties shall be true, complete and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date);
(d) no Default or Event of Default shall have approved occurred or be continuing (or would result after giving effect to the transactions contemplated by this Agreement; except where , the failure to obtain any such approval would notFourth Amendment First Out Waterfall Notes, individually or in the aggregateWarrants as amended hereby (the “Fourth Amendment Warrants”) and the other Loan Documents (as amended hereby, have a Material Adverse Effect on ART as applicable) and NRLPthe ABL Amendment and the other ABL Debt Documents (as amended by the ABL Amendment, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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 effectapplicable));
(e) No temporary restraining orderthe Borrower shall have executed, preliminary or permanent injunction or other order or decree by any court issued and delivered to the First Out Waterfall Lenders new First Out Waterfall Notes (each in the form of competent jurisdiction which prevents a First Out Waterfall Note attached to the consummation Amended Facility Agreement as Exhibit A-4) (the “Fourth Amendment First Out Waterfall Notes”) in accordance with Section 1.4(c) of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted)Amended Facility Agreement;
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
Appears in 1 contract
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers This Amendment shall be effective upon and subject to the fulfillment at or prior to the Effective Time satisfaction of the following conditions:
conditions precedent (such effective time, being the “Effective Time”): (a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained herein and in this Agreement and the Merger Agreements all other Loan Documents shall be true and correct in all material respects on and as of the date of this Agreement and on hereof and as of the Effective Time as if made on and as of such datethe date hereof, except as contemplated or permitted for such representations and warranties limited by this Agreement and the Merger Agreements, and NRLP shall have received their terms to a certificate of the President or of an Executive Vice President of ART to that effect;
specific date; (b) ART no Default or Event of Default shall be in existence, (c) Borrower shall have obtained delivered to the consent Agent an executed original copy of this Amendment and each other agreement, document or approval instrument reasonably requested by the Agent in connection with this Amendment; (d) (i) the holders of each person whose consent or approval the Subordinated Debt and Borrower shall have amended Section 2D(b)(iv) of the Note Purchase Agreement so that the capital expenditures covenant contained therein shall be required the same as Paragraph 4 of Annex I of the Agreement as amended hereby except that the test levels shall be 10% looser than those in said paragraph of Annex I of the Agreement as amended hereby, all in form and substance satisfactory to Agent, and (ii) the holders of the Subordinated Debt shall have consented in writing to this Amendment, in form and substance satisfactory to Agent, and none of the provisions of this Amendment shall be a default or event of default under the Note Purchase Agreement or with respect to the Subordinated Debt; (e) Borrower shall have paid to Agent all fees, costs and expenses owed to and/or incurred by the Agent and Lenders arising in connection with the Loan Documents and/or this Amendment; and (f) all proceedings taken in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or by this Amendment and all documentation and other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP legal matters incident thereto shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially be satisfactory to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the CodeAgent.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Gardenburger Inc)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- (a) The respective obligations of each party the Investment Banks to effect exchange the Mergers Exchange FDC Debt Obligations for the Western Union Securities at the Closing shall be subject to the fulfillment at satisfaction (or prior to waiver by the Effective Time Investment Banks) of the following conditions:
(ai) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby Sidley Austin LLP shall have been approved furnished to the Investment Banks its opinion, dated the Closing Date, in substantially the form set forth as Exhibit C-1 and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;Exhibit C-2 hereto.
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(eii) No statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or decree issued by any court of competent jurisdiction which prevents Governmental Entity or other legal restraint or prohibition shall be in effect preventing the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);transactions contemplated hereunder.
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(giii) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained FDC in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date Closing Date, with the same effect as if made on the Closing Date, and FDC shall have complied in all material respects with all the agreements on its part to be performed at or prior to the Closing Date, and FDC shall have furnished to the Investment Banks a certificate of FDC, in form reasonably satisfactory to the Investment Banks, signed by a Vice President or Treasurer of FDC, dated the Closing Date, to the foregoing effects.
(iv) The representations and warranties of Western Union in this Agreement shall be true and correct in all material respects on and as of the Effective Time Closing Date, with the same effect as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger AgreementsClosing Date, and NRLP Western Union shall have received complied in all material respects with all the agreements on its part to be performed at or prior to the Closing Date, and Western Union shall have furnished to the Investment Banks a certificate of Western Union, in form reasonably satisfactory to the Investment Banks, signed by a Vice President or Treasurer of an Executive Vice President Western Union, dated the Closing Date, to the foregoing effects.
(v) The private letter ruling FDC received from the Internal Revenue Service on September 1, 2006, shall continue to be valid as of ART the Closing Date and shall not have been revoked or modified in any material respect that is adverse to that FDC or Western Union.
(vi) The Purchase Agreement shall remain in full force and effect;, and all of the conditions to the obligations of the Initial Purchasers to purchase and pay for the Western Union Securities as set forth in the Purchase Agreement shall have been waived or satisfied (other than those conditions which by their nature cannot be satisfied until the consummation of the exchange of Western Union Securities for Exchange FDC Debt Obligations or until the consummation of the transactions pursuant to the Purchase Agreement, but which none of FDC, Western Union or the Investment Banks has any reason to believe will not be satisfied). In case any of such conditions shall not have been fulfilled by October 13, 2006, or if either the Separation and Distribution Agreement or the Purchase Agreement shall have been terminated in accordance with its terms, this Agreement may be terminated by either of the Investment Banks by delivering written notice of termination to FDC and the other Investment Bank. Any such termination shall be without liability of any party to any other party except to the extent (i) arising from a willful breach of this Agreement or (ii) provided in the Purchase Agreement.
(b) ART The obligations of FDC to exchange the Western Union Securities for the Exchange FDC Debt Obligations at the Closing shall be subject to the satisfaction (or waiver by FDC) of the following conditions:
(i) Xxxxx Xxxx & Xxxxxxxx, counsel for the Investment Banks, shall have obtained furnished to FDC its opinion, dated the consent or approval Closing Date, in substantially the form set forth as Exhibit D hereto.
(ii) The representations and warranties of each person whose consent or approval of the Investment Banks in this Agreement shall be required true and correct in connection all material respects (other than those in Section 3(b)(v) hereof, which shall be true and correct in all respects) on and as of the Closing Date, with the transactions contemplated hereby under any loan same effect as if made on the Closing Date, and each of the Investment Banks shall have complied in all material respects with all the agreements on its part to be performed at or credit agreementprior to the Closing Date, noteand each Investment Bank shall have furnished to FDC a certificate, mortgagein form reasonably satisfactory to FDC signed by an officer of such Investment Bank, indenturedated the Closing Date, leaseto the foregoing effects with respect to such Investment Bank.
(iii) No statute, license rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other agreement order enacted, entered, promulgated, enforced or instrument, except those for which failure to obtain such consents and approvals would not, individually issued by any Governmental Entity or other legal restraint or prohibition shall be in the aggregate, have a Material Adverse Effect on ART or upon effect preventing the consummation of the transactions contemplated hereby;hereunder.
(civ) NRLP FDC shall have received the letter Western Union Securities and the Purchase Agreement shall remain in full force and effect, and all of BDO Xxxxxxx, LLP referred the conditions to the obligations of the Initial Purchasers to purchase and pay for the Western Union Securities as set forth in Section 7.8 hereof; and
(d) NRLP and Newco the Purchase Agreement shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially been waived or satisfied (other than those conditions which by their nature cannot be satisfied until the consummation of the exchange of Western Union Securities for Exchange FDC Debt Obligations or until the consummation of the transactions purchase to the effect that Purchase Agreement, but which but which none of FDC, Western Union or the NRLP Merger Investment Banks has any reason to believe will not be satisfied). In case any of such conditions shall not have been fulfilled by October 13, 2006, or if either the Separation and Distribution Agreement or the Purchase Agreement shall have been terminated in accordance with its terms, this Agreement may be terminated by FDC by delivering written notice of termination to the Investment Banks. Any such termination shall be treated for federal income tax purposes as part without liability of any party to any other party except to the extent (i) arising from a transaction that satisfies willful breach of this Agreement or (ii) provided in the requirements of Section 351 of the CodePurchase Agreement.
Appears in 1 contract
Samples: Exchange Agreement (First Data Corp)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- 3.1 The respective obligations of each party under this Agreement (other than those contained in this Clause 3, Clauses 4 to 6 (inclusive), Clause 24, Clauses 29.1 to 29.3 (inclusive), Clause 30, Clause 34, Clauses 36, 37 and 38 and Clauses 40 to 49 (inclusive)) are conditional in all respects upon the Conditions being satisfied or waived in accordance with this Agreement and there not being in effect any order of a Governmental Entity under an Antitrust Law that prohibits or enjoins Completion.
3.2 The Financing Condition may be waived by the Mergers shall Purchaser at any time. The Competition Condition may be subject to waived, in whole or in part, only with the fulfillment at or prior to the Effective Time consent of the following conditions:
(a) This Agreement, the Merger Agreements Seller and the transactions contemplated hereby and thereby shall have been approved and adopted by Purchaser.
3.3 In the affirmative vote of event that a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting periodGovernmental Entity should provide written notice that it is reviewing, if anyinvestigating or challenging, applicable to the consummation of the Mergers under the HSR Act shall have expired in whole or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable lawsin part, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; Agreement (the "Proposed Transaction") under any Antitrust Law (an “Antitrust Review”), the Purchaser and Seller may, as each considers it advisable, make any submission and submit any materials and information (including complying with any requests for information) in response thereto, except where the failure Purchaser and Seller are required by an Antitrust Law to obtain any submit materials and information, in which case they shall, as soon as reasonably practicable after receiving such approval would notrequest, individually or provide such materials and information to the Governmental Entity.
3.4 As promptly as practicable after the date hereof and in no event more than ten (10) Business Days after the aggregatedate hereof, have a Material Adverse Effect on ART Purchaser and NRLPSeller shall file with the United States Federal Trade Commission (“FTC”) and the Antitrust Division of the United States Department of Justice (“DOJ”) the notifications and other information required to be filed under the HSR Act, and their respective Subsidiaries, taken as a whole, or upon the consummation of with respect to the transactions contemplated hereby;
(d) The Form S-4 shall have become effective . Each party warrants that all such filings by it will be, as of the date filed, true and accurate and in accordance with the provisions requirements of the Securities HSR Act. Each of Purchaser and Seller agrees to make available to the other such information regarding its business, assets, and no stop order suspending such effectiveness shall have been issued and remain property (including, in effect;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation case of the Mergers or imposes material conditions with respect thereto Seller, the Business) as each of them may reasonably request as may be required of each of them to file any additional information requested by such agencies under the HSR Act. Neither Purchaser nor Seller shall have been issued and remain in effect (each party agreeing withdraw its HSR filing without the other party’s consent.
3.5 The Purchaser shall use all commercially reasonable endeavours to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation procure satisfaction of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of Competition Condition promptly after the date of this Agreement and on and as in any event shall use commercially reasonable endeavours to procure satisfaction of the Effective Time Competition Condition prior to the Termination Date. Such endeavours shall, without limitation but subject always to Clause 3.11, include the Purchaser taking, as promptly as practicable, all steps necessary, proper or advisable (including making filings and notifications within the periods required or otherwise legally allowed as well as complying with any requests for information) to obtain the consents, approvals or actions required in order to satisfy the Competition Condition PROVIDED THAT the Purchaser shall not be in breach of its obligations under Clause 3.4 if made and to the extent that the Purchaser fails to make any filings or notifications or otherwise to submit any information where it is dependent on and as of such date, except as contemplated or permitted by this Agreement the Seller to provide information and the Merger AgreementsSeller has not supplied such information to the Purchaser or the Purchaser’s Solicitors.
3.6 In addition, with respect to this Clause 3, each party shall:
(A) notify the other party (or the other party’s Solicitors), and NRLP shall have received a certificate provide copies to such other party (or the other party's Solicitors), of the President any communications (whether written or of an Executive Vice President of ART oral) with any Governmental Entity in relation to that effectobtaining any Antitrust Approval or in relation to any Antitrust Review;
(bB) ART shall have obtained provide the consent other party (or approval the other party’s Solicitors) with draft copies of each person whose consent all submissions and substantive communications intended to be sent to Governmental Entities at such time as will allow the other party a reasonable opportunity to provide comments on such submissions and communications before they are submitted or approval shall be required in connection sent, (acting reasonably) agree such submissions and communications with the transactions contemplated hereby under any loan other party before they are submitted or credit agreementsent, note, mortgage, indenture, lease, license and provide the other party (or the other agreement or instrument, except those for which failure to obtain party’s Solicitors) with copies of all such consents submissions and approvals would not, individually or communications in the aggregate, have a Material Adverse Effect on ART form submitted or upon the consummation of the transactions contemplated herebysent;
(cC) NRLP shall have received so far as practicable, give the letter of BDO Xxxxxxxother party (or the other party’s Solicitors) reasonable notice of, LLP referred and reasonable opportunity to in Section 7.8 hereofparticipate in, all meetings and telephone calls with any such Governmental Entity; and
(dD) NRLP and Newco shall notify the other party (or the other party’s Solicitors) promptly on becoming aware that any of the consents or approvals specified in the Competition Condition have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially been obtained or that any Antitrust Review has been concluded or terminated by a Governmental Entity.
3.7 Any information to be provided by a party verbally or in writing (a “Disclosing Party” for the purposes of this Clause 3.7) to the effect other party (a “Receiving Party” for the purposes of this Clause 3.7) under any provision of this Clause 3 which is materially commercially sensitive to the Disclosing Party’s existing business may be supplied to the Receiving Party's Solicitors on a “counsel to counsel” basis rather than to the Receiving Party (or to any member of the Receiving Party). All such written information or information shall be designated in writing to the Receiving Party’s counsel as being transmitted on a “counsel to counsel” basis and all such verbal information shall be confirmed in writing to the Receiving Party’s counsel as having been transmitted on a “counsel to counsel” basis.
3.8 The Seller shall, and shall procure that the NRLP Merger Business Sellers shall, co-operate with and provide reasonable assistance to the Purchaser to enable it to obtain any consents, approvals or actions required to satisfy the Competition Condition and to make any submissions or filings in respect of any Antitrust Review or to defend Antitrust Proceedings. The Purchaser shall co-operate with and provide reasonable assistance to the Seller to enable the Seller to make any submissions or filings in respect of any Antitrust Review or to defend Antitrust Proceedings.
3.9 If it becomes reasonably apparent to the Purchaser or to the Seller (who shall inform the Purchaser of this fact) that:
(A) the FTC or DOJ is likely to issue a request for additional information or documentary material (“Second Request”) with respect to the Proposed Transaction;
(B) that a Governmental Entity intends or threatens to open an in-depth, “Phase II” or analogous investigation into the Proposed Transaction or to bring suit before any Governmental Entity to temporarily or permanently enjoin or prohibit the Proposed Transaction or to otherwise challenge the Proposed Transaction before any Governmental Entity under an Antitrust Law (an “Antitrust Proceeding”); or
(C) that a Governmental Entity will only approve the Proposed Transaction or will only agree not to bring an Antitrust Proceeding subject to any undertakings, commitments, hold-separate arrangements, divestments, conditions, obligations, measures, undertakings and/or modifications, consents decrees, settlements or analogous procedures (each a “Commitment”), the Purchaser shall promptly, and within the relevant time limits for doing so, offer, accept and agree to:
(i) divest some or all of the Overlapping Products at no minimum price; and/or
(ii) subject to Clause 3.11, any such other Commitment (or Commitments) as may be necessary, so as to enable the satisfaction of the relevant Competition Condition or so as to avoid an Antitrust Proceeding, prior to compliance with such Second Request, the opening of such in-depth, “Phase II” or analogous investigation into the Proposed Transaction, or the commencement of any Antitrust Proceeding with respect to the Proposed Transaction.
3.10 Notwithstanding the Purchaser's obligations in Clause 3.9, if the FTC or DOJ should issue a Second Request, or if a Governmental Entity should open an in-depth, “Phase II” or analogous investigation into the Proposed Transaction or brings an Antitrust Proceeding with respect to the Proposed Transaction, the Purchaser shall, subject to Clause 3.11, offer, accept and agree to any Commitment (or Commitments) as may be necessary so as to enable the satisfaction of the Competition Condition and Completion as rapidly as possible and in any event prior to the Termination Date. In the event that Antitrust Proceedings are commenced by a Governmental Entity, without limiting the Purchaser's obligations set forth in this Clause 3.10 to offer a Commitment (or Commitments), the parties agree to work together in good faith to agree upon a course of action they agree will provide the highest likelihood that Completion can take place as soon as possible thereafter with respect to any Business Assets other than Canadian Business Assets.
3.11 The Purchaser shall negotiate any proposed Commitments acting reasonably and in good faith and not arbitrarily, but, save in respect of any divestment of an Overlapping Product, shall not be required to agree to any Commitment which, strategically or financially, could reasonably be expected to give rise to a material adverse effect on the prospects of the combined business of the Business and the Purchaser’s existing operations, as determined by the Purchaser acting reasonably and in good faith and not arbitrarily.
3.12 In the event that any fact which makes the Competition Condition incapable of being satisfied on or before the Termination Date (taking account of, and without prejudice to, the parties’ obligations under Clauses 3.4 to 3.11 (inclusive)) comes to the knowledge of any party at any time prior to Completion then that party shall notify the other parties of that fact and either the Seller or the Purchaser shall be treated for federal income tax purposes as part entitled to terminate this Agreement by written notice to the other parties (PROVIDED THAT neither the Seller nor the Purchaser shall be entitled to terminate this Agreement where that party is in breach of a transaction that satisfies its obligations under this Agreement where such breach has contributed materially to the requirements of Section 351 non-satisfaction of the CodeCompetition Condition), and following the giving of such notice, the obligations of each party under this Agreement shall automatically terminate as provided in Clause 3.14.
3.13 In the event that the Conditions are not satisfied or waived on or before the Termination Date, or in the event that there is an order in effect by a Governmental Entity under an Antitrust Law that would prohibit Completion of the Proposed Transaction on the Termination date, this Agreement shall automatically terminate as provided in Clause 3.14.
3.14 In the event that this Agreement is terminated or terminates in accordance with Clause 3.12 or 3.13, then the obligations of each party under this Agreement (except for those contained in this Clause 3, Clause 24, Clauses 29.2 and 29.3, Clause 30, Clause 34, Clauses 36, 37and 38 and Clauses 40 to 49 (inclusive)) shall automatically terminate PROVIDED THAT the rights and liabilities of the parties which have accrued prior to termination shall subsist. If the parties proceed to effect Completion notwithstanding that the Competition Condition has not been satisfied, the parties shall be deemed to have waived such Competition Condition.
Appears in 1 contract
Samples: Business Sale and Purchase Agreement (Prestige Brands Holdings, Inc.)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- (a) The respective obligations obligation of each party Lender to effect the Mergers make its Commitment available and to contribute to any Advance shall be subject to the fulfillment at condition that the Effective Agreement Date shall have occurred and that the Agent or prior its duly authorised representative shall have received no later than the Effective Agreement Date the documents and evidence specified in part B of schedule 3 to be supplied by such date in form and substance satisfactory to the Effective Time Agent.
(b) The obligation of each Lender to contribute to any Advance other than any Advance referred to in clause 10.1(a) above shall be subject to the condition that the Agent or its duly authorised representative shall have received no later than 7 (seven) Banking Days before the day on which the Drawdown Notice in respect of such Advance is given the documents and evidence specified in part A of schedule 3 in form and substance satisfactory to the Agent, unless the aforementioned documents and evidence have already been received under clause 10.1(a) above.
10.2 The obligation of each Lender to contribute to any Advance is subject to the further conditions that at the time of the following conditionsgiving of a Drawdown Notice for and at the time of the making of such Advance:
(a) This Agreement, the Merger Agreements representations and warranties set out in clause 8.1 (and so that the transactions contemplated hereby representation and thereby warranty in clause 8.1(f) shall have been approved for this purpose refer to the then latest audited financial statements delivered to the Agent under clause 9.1) are true and adopted by correct on and as of each such time as if each was made with respect to the affirmative vote of a majority of the outstanding shares of ART Common Stock facts and NRLP Units entitled to vote;circumstances existing at such time; and
(b) The waiting period, if any, applicable to the consummation no Event of the Mergers under the HSR Act Default shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall occurred and be required pursuant to applicable laws, rules continuing unremedied and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 shall have become effective unwaived in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date terms of this Agreement and on and as or would result from the making of such Advance.
10.3 The conditions specified in this clause 10 are inserted solely for the benefit of the Effective Time as if made Lenders and may be waived on their behalf in whole or in part and as with or without conditions by the Agent acting on the instructions of the Lenders in respect of the first or any other Advance without prejudicing the right of the Agent acting on such instructions to require fulfilment of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required conditions in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually whole or in the aggregate, have a Material Adverse Effect on ART or upon the consummation part in respect of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Codeany other Advance.
Appears in 1 contract
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be subject BGI, Borders and Kmart have executed an amendment to the fulfillment at or prior LGIRA in the form of Exhibit C attached hereto and incorporated herein by this reference (the "Amendment"), which Amendment has been delivered to the Effective Time Skadden, Arps, Slate, Meagxxx & Xlom ("Xscrow Agent") to be held in escrow pending satisfaction of the following conditions:conditions (the "Conditions"):
(a) This Agreement, BGI shall have delivered the Merger Agreements Financial Statements to Kmart and the transactions contemplated hereby and thereby Financial Statements shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to votedisclose that Waldxx'x xxxgible net worth exceeds $250 million;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act Assignment Agreement shall have expired or been terminatedexecuted by Borders and Waldxx, xx the extent required under Section 1.1 hereof;
(c) The parties hereto Borders shall have made sent to each landlord under the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have Group A Leases a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation copy of the transactions contemplated hereby;
Financial Statements, the applicable Assignment Agreement and the other documentation (dif any) The Form S-4 shall have become effective set forth in Exhibit B, in accordance with the provisions of Section 1.1 (or, in the Securities Actcase of the Group A Lease for the Aventura, Florida premises, the other documentation required under Section 1.1 above);
(d) BGI and no stop order suspending such effectiveness Borders shall have been issued and remain in effect;sent a BGI Guaranty Offer to each landlord under the Group B Leases as required under Section 1.2; and
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents During the consummation 120 day period following satisfaction of the Mergers or imposes material conditions with respect thereto Condition set forth in clause (c) above (the "Objection Period"), Objection Notices (as defined below) shall have been issued received by the parties hereto (and remain shall not have been withdrawn by the applicable landlords) in effect (each party agreeing to use its reasonable efforts to have any such injunctionrespect of no more that seven Group A Leases; provided, order or decree lifted);
(f) No action however, that if Objection Notices shall have been taken, received by any of the parties hereto (and no statute, rule not withdrawn) during the Objection Period in respect of more that seven Group A Leases but any one or regulation more of such Objection Notices shall have been enactedwithdrawn in writing within 95 days following the end of the Objection Period such that there shall be seven or fewer Group A Leases in respect of which Objection Notices are outstanding, then the Condition set forth in this clause (e) shall be deemed to have been satisfied as of the date following the Objection Period on which there are seven or fewer Group A Leases in respect of which Objection Notices are outstanding. The term "Objection Notice" shall mean, collectively, one or more notices from a landlord under a Group A Lease which are received by any state or Federal government or governmental agency which would prevent the consummation of the Mergers parties hereto during the Objection Period and which contest the termination of the Guaranty applicable to such landlord's Group A Lease. If any of the parties hereto shall receive an Objection Notice it shall promptly provide written notice thereof (including a copy thereof) to the other parties hereto and to Escrow Agent. The parties hereto and Escrow Agent have executed a separate agreement of even date herewith to evidence the agreement of Escrow Agent to hold the Amendment in trust in accordance with the terms hereof and to release the Amendment to Kmart and BGI upon receipt of notice from BGI or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall Kmart certifying that the Conditions have been approved for listing on satisfied. The Amendment shall not be effective until it is released by Escrow Agent, and Escrow Agent is hereby directed to date the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect Amendment (by filling in the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect date in the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(afirst paragraph thereof) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of its release from escrow (the "Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the CodeDate").
Appears in 1 contract
Samples: Lease Agreement (Borders Group Inc)
Conditions. Section 8.1 Conditions 1. If, while this Coverage Agreement is in force, you hire additional “employees”, other than through consolidation or merger with, or purchase or acquisition of assets or liabilities of, another entity, such “employees” shall automatically be covered under the Coverage Agreement. Notice to Each Party's Obligation us of an increase need not be given and no additional contribution need be paid for the remainder of the Coverage Period shown in the Declarations.
2. This Coverage Agreement’s terms can be amended or waived only by endorsement issued by the Pool and made a part of this Coverage Agreement.
3. The first Named “Member” shown in the Declarations:
a) Is responsible for the payment of all contributions; and
b) Will be the payee for any return contributions the Pool pays.
4. The Pool will pay only for covered loss “discovered” no later than one year from the end of the coverage period.
5. After the “Member” “discovers” a loss or a situation which may result in a loss of or damage to, “money”, “securities” or “other property”, you must:
a) Notify us as soon as possible but no later than 90 days after “discovery”.
b) Submit to Effect examination under oath at our request and give us a signed statement of your answers.
c) Give us a detailed, sworn proof of loss within (90) days after “discovery”.
d) Cooperate with us in the Mergersinvestigation and settlement of any claim. ----------------------------------------------------------- Michigan County Road Commission Self-Insurance Pool Employee Fidelity and Faithful Performance Coverage
e) Notify the police if you have reason to believe that your loss involves a violation of the law.
6. The respective obligations Pool may examine and audit the “Member’s” books and records as they relate to this Agreement at any time during the Agreement period and up to three years after the final termination of each party this Agreement.
7. We will indemnify any of your employees who are required by law to effect give bonds for the Mergers shall be faithful performance of their duties when such failure has as its direct and immediate result a loss of your “money”, “securities” and “other property” subject to the fulfillment Limit of Coverage.
8. The Pool shall be permitted, but not obligated, to make inspections and surveys at any time. We may give you reports on the conditions we find and recommend changes. We are not obligated to make any inspections, surveys, reports or prior recommendations, and any such actions we do undertake relate only to coverage and the Effective Time contributions to be charged. We do not undertake to perform the duty of any person or organization to provide for the following health or safety of workers or the public. We do not warrant that conditions:
(a) This AgreementAre safe or healthful; or
b) Comply with laws, regulations, codes or standards. We do not provide any inspections, surveys, reports or recommendations relative to certification under state or municipal statutes, ordinances or regulations, of boilers, pressure vessels or elevators.
9. You may not bring any legal action against the Merger Agreements and the transactions contemplated hereby and thereby shall Pool involving loss:
a) Unless you have been approved and adopted by the affirmative vote of a majority complied with all of the outstanding shares terms of ART Common Stock this Coverage Agreement; and
b) Until 120 days after you have filed proof of loss with the Pool; and
c) Unless such action is brought within 2 years from the date that you “discover” such loss. Michigan County Road Commission Self-Insurance Pool Employee Fidelity and NRLP Units entitled Faithful Performance Coverage
10. If two or more Coverage Agreements apply to vote;the same loss, we will pay the lesser of:
(a) The actual amount of the loss; or
b) The waiting period, if any, applicable to the consummation sum of the Mergers Coverage Limits shown on the Declarations.
11. If loss is sustained partly during this coverage period and partly during prior coverage period.
a) And you “discover” the loss during the Coverage Period shown in the Declarations, and the loss results directly from an “occurrence” taking place:
i. Partly during the Coverage Period shown in the Declarations; and
ii. Partly during the Coverage Period(s) of any prior cancelled coverage that we issued to you or any predecessor in interest; and
iii. This Agreement became effective at the time of cancellation of the prior coverage we will first settle the amount of loss that you sustained during this Coverage Period. We will then settle the remaining amount of loss that you sustained during Coverage Period(s) or the prior Coverage Agreement.
b) If you “discover” loss during the Coverage Period shown in the Declarations, resulting directly from an “occurrence” taking place entirely during the Coverage Period(s) of any prior cancelled coverage that we or any affiliate issued to you or any predecessor in interest, we will pay for the loss, provided:
i. This Coverage Agreement became effective at the time of cancellation of the prior Coverage Agreement; and
ii. The loss would have been covered under this Coverage Agreement had it been in effect at the HSR Act shall have expired or been terminated;time of the “occurrence”. Michigan County Road Commission Self-Insurance Pool Employee Fidelity and Faithful Performance Coverage We will first settle the amount of loss that you sustained during the most recent prior coverage agreement. We will then settle any remaining amount of loss that you sustained during the Coverage Period(s) of any other prior Coverage Agreement.
(c) The parties hereto shall have most we will pay for the entire loss is the highest single Limit of Coverage applicable during the period of loss, whether such limit was written under this Coverage Agreement or was written under the prior coverage issued by us.
12. Regardless of the number of years this Coverage Agreement remains in force or the number of contributions paid, no Limit of Coverage accumulates from year to year or Coverage Period to Coverage Period.
13. This Coverage Agreement does not apply to loss recoverable or recovered under other insurance or indemnity. However, if the limit of the other insurance or indemnity is insufficient to cover the entire amount of the loss, the Coverage Agreement will apply to that part of the loss, other than that falling within any deductible amount, not recoverable or recovered under the other insurance or indemnity. However, this Coverage Agreement will not apply to the amount of loss that is more than the applicable Limit of Coverage shown in the Declarations.
14. The property covered under this Coverage Agreement is limited to property:
a) That you own or lease; or
b) That you hold for others whether or not you are legally liable for the loss of such property. However, this Coverage Agreement is for your benefit only. It provides no rights or benefits to any other person or organization. Any claim for loss that is covered under this Coverage Agreement must be presented to you.
15. Subject to the Loss Sustained During Prior Coverage Agreement condition, we will pay only for loss that you sustain through acts committed or events occurring during the Coverage Period as shown in the Declarations Certificate. Michigan County Road Commission Self-Insurance Pool Employee Fidelity and Faithful Performance Coverage
16. You must keep records of all covered property for three years so the Pool can verify the amount of any loss.
17. Any recoveries, whether effected before or after any payment under this Agreement, whether made the requisite filings with all Governmental Entities as by us or you, shall be required pursuant to applicable laws, rules and regulations, and applied net of the expense of such Governmental Entitiesrecovery:
a) First, to you in satisfaction of your covered loss in excess of the extent required by applicable law, shall have approved the transactions contemplated by amount paid under this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(db) The Form S-4 shall have become effective Second, to us in accordance with the provisions satisfaction of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain amounts paid in effectsettlement of your claim;
(ec) No temporary restraining orderThird, preliminary or permanent injunction or other order or decree by to you in satisfaction of any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect theretoDeductible Amount; and
(gd) The shares Fourth, to you in satisfaction of Newco Common Stock required to be issued hereunder shall any loss not covered under this Agreement.
18. Recoveries do not include any recovery:
a) From insurance, suretyship, reinsurance, security or indemnity taken for our benefit; or
b) Of original “securities” after duplicates of them have been approved for listing on the New York Stock Exchange, subject to official notice of issuanceissued.
Section 8.2 Conditions 19. You must transfer to Obligation the Pool your rights of NRLP recovery against any person or organization for any loss you sustained and for which the Pool pays or settles. You must also do everything necessary to Effect the NRLP Mergersecure those rights and do nothing after loss to impair them.
20. ---------------------------------------------------------- The obligation value of NRLP to effect the NRLP Merger any loss for purposes of coverage under this Coverage Agreement shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditionsdetermined as follows:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
Appears in 1 contract
Samples: Employee Fidelity and Faithful Performance Coverage Agreement
Conditions. Section SECTION 8.1 Conditions to Each Party's Obligation to Effect the MergersMerger. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers Merger shall be subject to the fulfillment satisfaction at or prior to the Effective Time of the following conditions:
(a) This AgreementNo statute, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting periodrule, if anyregulation, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining executive order, preliminary decree or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any state United States court or Federal government or governmental agency which would prevent Governmental Entity of competent jurisdiction that prohibits the consummation of the Mergers or impose material conditions with respect thereto; andMerger and shall be in effect.
(gb) The shares of Newco Common Stock required to be issued hereunder Coopers & Xxxxxxx shall have been approved for listing on confirmed in writing the New York Stock Exchangedraft letter of Coopers & Xxxxxxx to Chesapeake of even date herewith that the transaction contemplated by this Agreement will qualify as a pooling-of-interests transaction under Opinion No. 16 of the Accounting Principles Board; provided, subject however, that the failure to official notice satisfy this condition shall not relieve Chesapeake of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The its obligation of NRLP to effect the NRLP Merger shall be subject if such failure (i) is the result of any willful act or omission by Chesapeake that makes the representations, warranties or covenants of Chesapeake set forth in the draft letter from Chesapeake to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and Coopers & Xxxxxxx, dated as of the date of this Agreement Agreement, untrue or incorrect in any material respect and on and as of (ii) but for the Effective Time as if made on and as of such datewillful act or omission referred to in clause (i), except as Coopers & Xxxxxxx would have confirmed in writing that the transaction contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall would have received qualified as a certificate pooling-of-interests transaction under Opinion No. 16 of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;Accounting Principles Board.
(c) NRLP The Closing shall have received the letter of BDO Xxxxxxxtaken place no later than March 31, LLP referred to in Section 7.8 hereof; and1997.
(d) NRLP and Newco The ESRE Merger Agreement shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to been entered into by all necessary parties; the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 Closing of the CodeESRE Merger Agreement shall take place simultaneously with the closing of this Agreement; and the effective time under the ESRE Merger Agreement shall occur simultaneously with the Effective Time under this Agreement.
Appears in 1 contract
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect 3.1 The Purchaser shall and shall procure that his agents shall forthwith upon the Mergers. ----------------------------------------------------------- The respective obligations signing of each party to effect the Mergers shall be subject to the fulfillment at or prior to the Effective Time this Agreement conduct such review of the following conditionsassets, liabilities, operations and affairs of the Company as it may reasonably consider appropriate and the Vendor shall provide and procure the Company to provide such assistance as the Purchaser or his agents may reasonably require in connection with such review so as to enable the review to be completed on or before 12:00 noon on the date falling 30 days from the date of this Agreement or such later date as the Vendor and the Purchaser may agree under Clause 3.3.
3.2 Completion is conditional upon:
(a1) This Agreement, the Merger Agreements Purchaser being satisfied at its sole and absolute discretion with the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority results of the outstanding shares of ART Common Stock and NRLP Units entitled due diligence review to votebe conducted under Clause 3.1;
(b2) The waiting period, if any, applicable to the consummation Vendor's Warranties (save and except the Vendor's Schedule of the Mergers under the HSR Act shall have expired or been terminatedExceptions) remaining true and accurate in all respect;
(c3) The parties hereto shall have made the requisite filings Vendor's Schedule of Exceptions having been delivered by the Vendor in a form reasonably satisfactory to the Purchaser as contemplated by Clause 6.10;
(4) the Accounts having been delivered by the Vendor to the Purchaser;
(5) the Vendor having delivered to the Purchaser a consolidated audited financial statements for the Company prepared in accordance with all Governmental Entities as US Generally Accepted Accounting Principles for the period from the date of its incorporation until the Last Accounts Date and such financial statements shall be in a form suitable for filing with the U.S. Securities and Exchange Commission as required pursuant by Form 8-K promulgated under the Securities Act;
(6) the parties to applicable lawsthis Agreement having received all authorizations, rules and regulationsconsents, and such Governmental Entities, approvals of governmental authorities and third parties that are necessary in order to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of complete the transactions contemplated hereby;
(d7) The Form S-4 the Parent Company and the Vendor having entered into a registration rights agreement in form and substance reasonably satisfactory to the parties to this Agreement pursuant to which the Parent Company shall have become effective in accordance grant to the Vendor certain rights with respect to the provisions registration of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect theretoPurchase Consideration Shares; and
(g) The shares 8) there being sufficient authorized capital stock of Newco Common Stock required to be issued hereunder shall have the Parent Company for the purpose of conducting the issue of the Purchase Consideration Shares on Completion.
3.3 If any of the conditions set out in Clause 3.2 has not been approved for listing satisfied on or before 12:00 noon on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of date falling 30 days from the date of this Agreement or such later date as the Purchaser and on the Vendor may jointly agree, this Agreement shall cease and as terminate (save and except Clause 10 which shall continue to have full force and effect) and none of the Effective Time as if made on and as of such date, except as contemplated or permitted by parties to this Agreement and the Merger Agreements, and NRLP shall have received a certificate any obligations and liabilities hereunder against or towards one another save for any antecedent breaches of the President or of an Executive Vice President of ART terms hereof. Subject to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required immediately preceding sentence in connection with the transactions contemplated hereby under any loan or credit agreementthis Clause 3.3, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation none of the transactions contemplated hereby;
(c) NRLP parties hereto shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 take any action against any of the Codeother parties hereto to claim for damages or to enforce specific performance or any other rights, remedies or relief following the cessation and termination of this Agreement in accordance with this Clause 3.3.
Appears in 1 contract
Conditions. Section 8.1 Conditions 10.1 The obligation of SCOLP to Each Party's Obligation consummate the acquisition of the Membership Interests is expressly conditioned upon the following, each of which constitutes a condition precedent to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party SCOLP hereunder which, if not performed or determined to be acceptable to SCOLP on or before the Closing 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 Assignor, whereupon (x) the Mergers Deposit shall be subject returned to SCOLP, and (y) neither Assignor nor SCOLP shall have any further duties or obligations under this Agreement except that (i) if any such condition was not satisfied as a result of any default or breach of this Agreement by Assignor, SCOLP may pursue such legal and equitable rights and remedies that may be available to it pursuant to the fulfillment at terms of this Agreement, and (ii) SCOLP’s indemnity obligations under Section 9.3 shall survive (provided that SCOLP shall have the right to waive any one or prior to the Effective Time all of the following such conditions:):
(a) This On the Closing Date, (i) title to the Project shall be held by Palm Creek in the condition required by this Agreement, (ii) the Merger Agreements and the transactions contemplated hereby and thereby Title Company shall have been approved unconditionally and adopted by irrevocably agreed to issue the affirmative vote of a majority title policies pursuant to the Commitment, and (iii) Assignor shall own one hundred percent (100%) of the outstanding shares Membership Interest in Palm Creek, free and clear of ART Common Stock all liens, claims and NRLP Units entitled to vote;encumbrances.
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act Assignor shall have expired or been terminated;complied with and performed all covenants, agreements and conditions on their part to be performed under this Agreement within the time herein provided for such performance.
(c) The parties representations, warranties and agreements of Assignor and Palm Creek contained herein and in all documents and agreements executed pursuant hereto shall have made the requisite filings with all Governmental Entities as are and shall be required pursuant to applicable laws, rules true and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken correct as a whole, or upon the consummation of the transactions contemplated hereby;date hereof and as of the Closing Date in all material respects.
(d) The Form S-4 shall have become effective in accordance with From and after the provisions of date hereof to the Securities ActClosing Date, and no stop order suspending such effectiveness there shall have been issued and remain no material adverse change in effect;or to the Project, the business conducted thereon, or Palm Creek.
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto The Loan Assumption Approval shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);obtained from the Lender.
(f) No action action, suit, proceeding or investigation shall have been takeninstituted before any court or governmental body, and no statute, rule or regulation shall have been enacted, instituted by any state governmental agency, to restrain or Federal government or governmental agency which would prevent the consummation of the Mergers transactions under this Agreement or impose material conditions with respect thereto; andwhich would affect the right of SCOLP to own, operate and control Palm Creek or the Project.
(g) The shares [Intentionally Deleted]
(h) All of Newco Common Stock required to be issued hereunder the manufactured home sites, RV sites and related site improvements and amenities described on Schedule 10.1(h) for the Phase 3 Land shall have been approved fully completed and paid for listing on by Assignor to the New York Stock Exchangereasonable satisfaction of SCOLP and so that the RV and manufactured home sites listed thereon will be in leasable condition without it being necessary to make any further improvements to permit a tenant to take possession of, subject and install a recreational vehicle on, such recreational vehicle site in accordance with Assignor’s standard form lease and the rules and regulations applicable to official notice of issuancethe Project.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- 10.2 The obligation of NRLP Assignor to effect consummate the NRLP Merger shall be subject sale of the Membership Interests is expressly conditioned upon the following, each of which constitutes a condition precedent to the fulfillment obligations of Assignor hereunder which, if not performed or determined to be acceptable to Assignor on or before the Closing Date (unless a different time for performance is expressly provided herein), shall permit Assignor, at or prior its sole option, to declare this Agreement null and void and of no further force and effect by written notice to the Effective Time SCOLP, whereupon neither Assignor nor SCOLP shall have any further duties or obligations under this Agreement except that (i) if any such condition was not satisfied as a result of any default or breach of this Agreement by SCOLP, Assignor may seek to recover the following additional Deposit in accordance with the terms of this Agreement and the Deposit Escrow Agreement, and (ii) SCOLP’s indemnity obligations under Section 9.3 shall survive (provided that Assignor shall have the right to waive any one or all of such conditions:):
(a) ART SCOLP shall have complied with and performed in all material respects covenants, agreements and conditions on its agreements contained in this Agreement and the Merger Agreements required part to be performed on or prior to the Effective Time and the representations and warranties of ART contained in under this Agreement within the time herein provided for such performance.
(b) The representations, warranties and the Merger Agreements agreements of SCOLP contained herein and in all documents and agreements executed pursuant hereto are and shall be true and correct in all material respects on as of the date hereof and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP Closing Date in all material respects.
(c) The Loan Assumption Approval shall have received a certificate of been obtained from the President or of an Executive Vice President of ART to that effect;Lenders.
(bd) ART No action, suit, proceeding or investigation shall have obtained the consent been instituted before any court or approval of each person whose consent governmental body, or approval shall be required in connection with the transactions contemplated hereby under instituted by any loan governmental agency, to restrain or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the prevent consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Codeunder this Agreement.
Appears in 1 contract
Samples: Limited Liability Company Interests Assignment Agreement (Sun Communities Inc)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations 2.1 Closing of each party to effect the Mergers shall be this agreement is subject to the fulfillment at or prior to the Effective Time of the following conditionsto:
(a) This Agreemententry of the Sale Order by no later than September 30, the Merger Agreements 2015 or such later time and the transactions contemplated hereby and thereby shall have been approved and adopted date as may be agreed in writing by the affirmative vote of a majority of the outstanding shares of ART Common Stock Seller and NRLP Units entitled to voteBuyers;
(b) The waiting period, if any, applicable the Sale Order being in a form acceptable to the consummation each of the Mergers under Buyers and the HSR Act shall have expired or been terminatedSeller in form and substance;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant Conditions in paragraphs 1 to applicable laws, rules 3 of Schedule 2 being satisfied or waived by the date and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or time provided in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated herebyclause 2.4;
(d) The Form S-4 shall have become effective the Conditions in accordance with paragraph 3 of Schedule 2 being satisfied up to and including the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect;Closing Date or waived; and
(e) No temporary restraining orderthe Company having executed an agreement with Xxxxxx Africa Mobile Limited (formerly Xxxxxx Africa Mauritius (Pty) Ltd), preliminary or permanent injunction or other order or decree and Xxxxxx Mobile South Africa (Pty) Ltd (AM Agreement) to purchase all rights held by any court of competent jurisdiction which prevents Xxxxxx Africa Mobile Limited with respect to the consummation provision of the Mergers or imposes material conditions with respect thereto Company's solutions to the government markets in a form reasonably satisfactory to the Buyers. The AM Agreement shall have been issued and remain in effect provide for:
(each party agreeing i) a payment directly from Company to use its reasonable efforts to have any such injunction, order or decree lifted)Xxxxxx Africa Mauritius (Pty) Ltd no later than Closing of $850,850 (US) which shall be deducted from Closing Payment;
(fii) No action shall have been taken, and no statute, rule or regulation shall have been enacted, a further payment by the Company equal to 17% of any state or Federal government or governmental agency Deferred Consideration payment which would prevent otherwise be payable to the consummation of Seller and which shall be deducted from such Deferred Consideration and shall be paid concurrently with any such payment to the Mergers or impose material conditions with respect theretoSeller; and
(giii) The shares a release of Newco Common Stock required all rights to be issued hereunder shall have been approved for listing on any incentive payments to the New York Stock Exchange, subject Company's management by the Company or any of its Subsidiaries arising from any existing agreements to official notice which the Company or any of issuanceits subsidiaries or any of the Company's management are a party to whether written or otherwise.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time 2.2 If any of the following additional conditionsConditions have not been satisfied or waived by the date and time provided in clause 2.1 and clause 2.4, this agreement shall cease to have effect immediately after that time on that date except for:
(a) ART shall have performed the provisions mentioned in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;clause 2.3; and
(b) ART any rights or liabilities that have accrued under this agreement.
2.3 The following provisions shall continue to have obtained effect, notwithstanding failure to waive or satisfy the consent Conditions, Clauses 1, 2, 12,15, 16, 17 18, 24 and 25.
2.4 The Seller and the Buyers shall use all reasonable endeavours (so far as lies within their respective powers) to procure that the Conditions are satisfied by September 30, 2015, but in any event no later than:
(a) 23:59 on October 31, 2015; or
(b) such later time and date as may be agreed in writing by the Seller and Buyers.
2.5 The Buyers and the Seller shall co-operate fully in all actions necessary to procure the satisfaction of the Conditions, including, but not limited to, the provision by all parties of all information reasonably necessary to make any application for consent, notification or approval filing that the Buyers deem to be necessary or as requested by any relevant authority, keeping all parties informed of each person whose consent the progress of any notification or approval filing and providing such assistance as may reasonably be required.
2.6 With respect to the Sale Order, the Buyers and Seller shall neither take any action, nor fail to take any action, which action or failure to act would reasonably be expected to result in:
(a) the reversal, avoidance, revocation, vacating or modification of the Sale Order (in any manner that would reasonably be expected to materially and adversely affect Buyers' or Seller's rights hereunder); or
(b) the entry of a stay of the Sale Order pending appeal.
2.7 If the Sale Order or any other order of the Bankruptcy Court relating to this Agreement shall be required in connection appealed (or a petition for certiorari or motion for rehearing or reargument shall be filed with respect thereto) and, as a result thereof, the transactions contemplated hereby Buyers elect not to proceed with a Closing and the Buyers provide written notice to the Seller within two (2) business days following the filing of such appeal, petition for certiorari or motion for rehearing or reargument if (i) the Buyers elect not to proceed with a Closing under the circumstances, and (ii) the Buyers desire for the Seller to contest any loan such appeal, petition for certiorari or credit agreementmotion for rehearing or reargument, notethe Seller shall, mortgagecontingent upon the cooperation and financial support of the Buyers, indenturetake all steps as may be reasonable and appropriate to defend against such appeal, leasepetition or motion, license or other agreement or instrument, except those for which failure and shall endeavour to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Codeexpedited resolution thereof.
Appears in 1 contract
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect 4.1 Completion is conditional on the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be subject to the fulfillment at or prior to the Effective Time satisfaction and/or waiver of the following conditionsConditions:
(a) This All necessary regulatory and governmental consents, permits and registrations for the implementation and completion of the joint venture arrangements and other transactions contemplated under this agreement having been obtained and remaining in full force and effect.
(b) All required third party consents having been obtained and remaining in full force and effect.
(c) No legislation or regulation shall have been proposed or passed, and no investigation, suit, action or other proceeding shall be pending, that would or seeks to materially prohibit, restrain or restrict, or seek damages or other relief thereby materially restricting, the implementation of, or otherwise question the validity or legality of, this agreement or the participation in JVC by First Honest or RSH.
(d) All covenants and obligations that each party is required to perform or comply with pursuant to this agreement at or prior to Completion shall have been performed and complied with in all material respects, and each party shall deliver a certificate in agreed form certifying fulfilment of such covenants and obligations.
(e) All actions and proceedings, corporate or other, to be taken by each party in connection with the transactions contemplated by this agreement, and all documents incidental thereto, shall be reasonably satisfactory in form and substance to the other party, and each party shall have made available to the other party for examination the originals or true and correct copies of all documents that such party may reasonably request in connection with the transactions contemplated by this agreement.
(f) Each of the RSH Licence Agreement, the Merger First Honest Licence Agreement, the Master Sourcing Agreements, the Employment Agreements and the transactions contemplated hereby new memorandum of association of JVC and thereby new Articles having been negotiated in good faith between First Honest and RSH and having been formulated into agreed forms.
4.2 Each of RSH and First Honest shall have use all reasonable endeavours to cause the Conditions applicable to such party to be satisfied as soon as practicable and in any event no later than 10:00 p.m., Hong Kong time:
(a) on January 31, 2013; or
(b) where a later date has been approved agreed in writing by RSH and adopted First Honest, on that date.
4.3 A Condition may only be waived by the affirmative vote both First Honest and RSH in writing.
4.4 If at any time either First Honest or RSH becomes aware of a majority fact or circumstance that is reasonably expected to prevent a Condition from being satisfied, it shall promptly inform the other party of such fact or circumstance in writing.
4.5 If any one or more of the outstanding shares of ART Common Stock and NRLP Units entitled Conditions have not been satisfied and/or waived by 6.00 p.m., Hong Kong time, on February 28, 2013, this agreement shall cease to votehave effect immediately after that time on that date except for:
(a) clause 1 (interpretation);
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminatedthis clause 4 (conditions);
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated herebyclause 20 (confidentiality);
(d) The Form S-4 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 effectclause 22 (whole agreement);
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued clause 24 (variation and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree liftedwaiver);
(f) No action shall have been taken, clause 25 (costs);
(g) clause 29 (notice);
(h) clause 30 (language);
(i) clause 31 (severance);
(j) clause 35 (dispute resolution; governing law and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect theretojurisdiction); and
(gk) The shares of Newco Common Stock required to be issued hereunder shall any rights or liabilities that have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at accrued or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in assumed under this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART agreement up to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect time on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Codedate.
Appears in 1 contract
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- 5.1 The respective obligations of each party of the Constituent Funds to effect consummate the Mergers Merger shall be subject to the fulfillment at or prior to the Effective Time of the following conditions:
(a) This Agreement, The representations and warranties of the other Fund contained herein shall be true as of and at the Effective Date of the Merger Agreements and with the same effect as though made at such date and such other Constituent Fund shall have performed all obligations required by this Agreement to be performed by it prior to the Effective Date;
(b) Such authority and orders from the Securities and Exchange Commission (the "Commission") and state securities commissions as may be necessary to permit the parties to carry out the transactions contemplated by this Agreement shall have been received;
(c) A post-effective amendment to the Registration Statement of Third Avenue Maryland on Form N-1A under the Securities Act of 1933, relating to the shares of the Initial Series of Third Avenue Delaware issuable hereunder, shall have been filed by Third Avenue Delaware with the Commission and such Registration Statement shall have become effective, and 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 (other than any such stop-order, proceeding or threatened proceeding which shall have been withdrawn or terminated);
(d) The Commission shall not have issued an unfavorable advisory report under Section 25(b) of the Investment Company Act of 1940 nor instituted any proceeding seeking to enjoin consummation of the reorganization under Section 25(c) of the Investment Company Act of 1940.
(e) Third Avenue Maryland has mailed to each shareholder of record of Third Avenue Maryland entitled to vote at the meeting of shareholders at which action on this Agreement is to be considered, a Proxy Statement which complies in all material respects with the applicable provisions of the Federal securities laws and the rules and regulations thereunder.
(f) Each party shall have received an opinion of Skadden, Arps, Slate, Mxxxxxx & Fxxx, New York, New York, to the effect that the Merger contemplated by this Agreement qualifies as a "reorganization" under Section 368(a)(1) of the Internal Revenue Code of 1986, as amended, and as such: (1) no gain or loss will be recognized by either Constituent Fund or to the shareholders thereof; (2) the basis of the shares of beneficial interest of the Initial Series of Third Avenue Delaware received by Third Avenue Maryland shareholders will be the same as the basis of the shares of Third Avenue Maryland surrendered in exchange therefor; and (3) the holding period of the shares of beneficial interest of the Initial Series of Third Avenue Delaware received by Third Avenue Maryland shareholders will include the holding period of Third Avenue Maryland stock surrendered in exchange therefor, provided that Third Avenue Maryland stock was held as a capital asset on the date of the exchange.
(g) Each party shall have received an opinion from Skadden, Arps, Slate, Mxxxxxx & Fxxx or Miles & Stockbridge in form and substance satisfactory to it, relating to its authority to engage in the transactions contemplated hereby and to the effect (i) that this Agreement and the merger contemplated thereby and the execution thereof have been duly authorized and approved by all requisite action of Third Avenue Maryland and Third Avenue Delaware, respectively, and this Agreement has been duly executed and delivered by Third Avenue Maryland and Third Avenue Delaware, respectively, and is a legal, valid and binding agreement of each such party in accordance with its terms; (ii) the shares of beneficial interest of the Initial Series of Third Avenue Delaware to be issued pursuant to the terms of this Agreement, have been duly authorized and, when issued and delivered as provided in this Agreement, will have been validly issued and fully paid and will be nonassessable; (iii) Third Avenue Maryland is duly organized, validly existing and in good standing under the laws of the State of Maryland and Third Avenue Delaware is duly organized and validly existing under the laws of the State of Delaware.
(h) The shares of beneficial interest of the Initial Shares of Third Avenue Delaware shall have been approved duly qualified for offering to the public in those states of the United States and adopted jurisdictions in which they are presently qualified, so as to permit the transfers contemplated by the affirmative vote this Agreement to be consummated.
(i) The holders of at least a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation common stock of Third Avenue Maryland shall have voted in favor of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation adoption of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on at an annual or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated special meeting or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.adjournment thereof. ARTICLE VI -
Appears in 1 contract
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect This Amendment shall take effect upon the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be subject to the fulfillment at or prior to the Effective Time satisfaction of the following conditionsconditions precedent:
A. The Required Lenders shall have executed this Amendment.
B. The Borrower shall have executed and delivered to the Agent (or shall have caused to be executed and delivered to the Agent by the appropriate persons) the following:
1. On or before the date hereof:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;Amendment.
(b) The waiting periodattached Joinders, if anyduly authorized, applicable to executed and delivered by the consummation of Borrower's Subsidiaries and the Mergers under the HSR Act shall have expired or been terminated;Parent, respectively.
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules True and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain complete copies of any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation stockholders' consents and/or resolutions of the transactions contemplated hereby;
(d) The Form S-4 shall have become effective in accordance with board of directors or other governing body of each company, authorizing the provisions execution and delivery of this Amendment, certified by the Manager or Secretary of the Securities Actappropriate Company, and no stop order suspending such effectiveness shall have been issued and remain in effect;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuanceas appropriate.
Section 8.2 Conditions to Obligation of NRLP to Effect 2. Such other supporting documents and certificates as the NRLP Merger. ---------------------------------------------------------- Agent or its counsel may reasonably request, within the time period(s) reasonably designated by the Agent or its counsel.
C. The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement Agent and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP Lenders shall have received the letter favorable opinion of BDO Xxxxxxxgeneral counsel to the Borrower, LLP referred its Subsidiaries and the Parent as to in Section 7.8 hereof; andthe due authorization, execution and delivery of this Amendment and the other Documents, the enforceability thereof, the absence of conflict thereof with material contracts and such other matters as may be reasonably requested by the Agent.
(d) NRLP D. In consideration for the amendments and Newco consents provided herein, the Borrower shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially paid to the effect that Agent, for the NRLP Merger account of each Lender executing this Amendment, a non-refundable facility fee in an amount equal to .25% of the sum of (1) such Lender's Commitment and (2) the outstanding principal amount of the Initial Term Note(s) held by such Lender.
E. All legal matters incident to the transactions hereby contemplated shall be treated for federal income tax purposes as part of a transaction that satisfies reasonably satisfactory to the requirements of Section 351 of the CodeAgent's counsel.
Appears in 1 contract
Conditions. Subject to the provisions of the immediately following sentence, the Holder’s obligations under Section 8.1 Conditions to Each Party's Obligation to Effect 1 of this Agreement and the Mergers. ----------------------------------------------------------- The respective obligations Company’s acceptance of each party to effect any Notes exchanged by the Mergers Holder and issuance of New Notes in the Private Placement shall be subject to consummation of the fulfillment at or prior exchange offer contemplated by the Exchange and Tender Offer and the Private Placement consistent with the terms and subject to the Effective Time conditions set forth in the Term Sheet and the Private Placement Term Sheet, as applicable, and this Agreement and on terms and conditions reasonably acceptable to the Holder and the Company; provided that any amendment, modification or waiver of any terms or conditions of the following conditions:
(a) This AgreementExchange and Tender Offer, the Merger Agreements Private Placement or any other Transaction Document shall be reasonably acceptable to the Company and the transactions contemplated hereby and thereby shall have been approved and adopted by Holder. The Holder’s obligations under Section 1 with respect to the affirmative vote of a majority Private Placement are contingent on the approval of the outstanding shares Company’s senior lenders under that certain Revolving Credit and Security Agreement dated as of ART Common Stock September 16, 2011 among the Company, each other borrower thereunder, the lenders party thereto and NRLP Units entitled PNC Bank National Association, as agent for the lenders (the “Credit Agreement” and the “Credit Agreement Consent”). The Company and the Holder acknowledge and agree that notwithstanding any provision of the Term Sheet, the Private Placement Term Sheet or this Agreement to vote;
the contrary, the Holder’s exchange of the Holder’s Exchange Notes for New Notes and the Company’s acceptance thereof (bthe “Holder’s Exchange Obligation”) The waiting period, if any, applicable to is not contingent on the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions tender offer contemplated by this Agreement; except where the failure to obtain any such approval would not, individually Exchange and Tender Offer or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.Private Placement
Appears in 1 contract
Conditions. Section 8.1 Conditions The Stockholder shall exercise the Right of First Refusal, if at all, by delivering to Each Partythe Company, for receipt by the Company within thirty (30) days after the Stockholder's Obligation receipt of the Transaction Notice, its written election to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers exercise such Right, which shall be subject binding and specifically enforceable by the Company. If the Company does not receive the Stockholder's written election to exercise the Right of First Refusal within the 30 days specified above, then the Stockholder shall be deemed to have elected not to exercise the Right of First Refusal, and the Company shall be free to enter into and consummate the Proposed Transaction on terms and conditions not materially more favorable to the fulfillment at or prior to Company than set forth in the Effective Time of the following conditions:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
Transaction Notice. (b) With respect to any Change in Control in favor of an RM Competitor to which Section 4.02(a) does not apply, the Stockholder shall have the right, but not the obligation, to cause the Company to purchase all Shares Beneficially Owned by the Stockholder or its Affiliates (the "RM Option"). The waiting period, if any, applicable Stockholder may exercise the RM Option (on behalf of itself and its Affiliates) by delivering to the consummation Company, no later than thirty (30) days after receipt by the Stockholder of written notice of the Mergers Change in Control from the Company, written notice of its election to exercise the RM Option, the number of Shares it and its Affiliates elect to sell under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulationsRM Option, and the proposed time, place and date of closing of the purchase transaction (but not later than 10 days after the end of such Governmental Entities30 day period) (the "Exercise Notice"). The Company shall pay the exercise price at the closing in readily available federal funds, and the Stockholder and its Affiliates shall deliver the Shares to the extent required by applicable lawCompany (or its nominee) against payment therefor, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain free and clear of any such approval would notand all liens, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a wholeencumbrances, or upon the consummation restrictions of any kind or nature (except only those in favor of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in Company under this Agreement and the Merger Agreements required to be performed on or prior to Registration Rights Agreement), and such closing shall take place as specified in the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such dateExercise Notice, except as contemplated or permitted otherwise agreed by this Agreement and the Merger Agreements, and NRLP parties. The per Share exercise price for the Shares shall have received a certificate be the higher of (i) the average traded price for shares of common stock of the President Company on the date the Change in Control became effective or (ii) the average traded price for shares of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation common stock of the transactions contemplated hereby;
(c) NRLP shall have received Company on the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to business day immediately preceding the effect that the NRLP Merger shall be treated closing date for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 exercise of the CodeRM Option.
Appears in 1 contract
Conditions. Section 8.1 Conditions In addition to Each Party's Obligation any other conditions to Effect the Mergers. ----------------------------------------------------------- The respective obligations Loan set out in this Agreement, PFG will not make any Loan until PFG shall have received from Borrower, in form and substance satisfactory to PFG, such documents, and completion of each party to effect the Mergers such other matters, as PFG may reasonably deem necessary or appropriate, including that there shall be subject no discovery of any facts or circumstances which would, as determined by PFG in its sole discretion, negatively affect or be reasonably expected to negatively affect the fulfillment at or prior to the Effective Time collectability of the following conditionsObligations, PFG’s security interest in Borrower’s Collateral or the value thereof, including, without limitation:
(a) This Agreementduly executed original signatures of Borrower to the Loan Documents to which Borrower is a party, including without limitation, this Agreement and the Merger Intellectual Property Security Agreement and related Collateral Agreements and the transactions contemplated hereby Notices, landlord consents and thereby shall have been approved bailee waivers, and adopted by the affirmative vote subordination agreements among PFG, Borrower and holders of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to voteSubordinated Debt;
(b) The waiting periodEach Borrower’s respective Constitutional Documents and, if anywhere applicable, applicable a good standing certificate of Borrower certified by the Secretary of State or other Governmental Body of the jurisdiction of formation of Borrower as of a date no earlier than thirty (30) days prior to the consummation date hereof, together with foreign qualification certificate from the States of the Mergers under the HSR Act shall have expired or been terminatedCalifornia and Delaware;
(c) The parties hereto shall have made a Secretary’s Certificate certifying the requisite filings with all Governmental Entities as shall be required pursuant to applicable lawsincumbency and signatures of the relevant executive officers of Borrower, rules and regulationsthe appended Certificate of Incorporation of Borrower, and such Governmental Entitiesthe appended Bylaws of Borrower, to the extent required by applicable law, shall have approved appended resolutions of the Board of Directors of Borrower authorizing the transactions contemplated by this Agreement; except where , the failure to obtain any such approval would not, individually or in Warrant (as defined below) and the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated herebyRepresentations;
(d) The Form S-4 shall have become effective account control agreements as required by Section 8(b) of this Schedule, duly executed by Borrower and each relevant depositary institution in accordance with favor of PFG, including from the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effectSenior Lender;
(e) No temporary restraining ordercertified copies, preliminary dated as of a recent date, of Security Instrument searches, as PFG shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such Security Instruments either constitute Permitted Liens or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain or, in effect (each party agreeing to use its reasonable efforts to have any such injunctionconnection with the Loan, order will be terminated or decree lifted)released;
(f) No action shall have been takenthe Representations, duly executed by Borrower,
(g) landlord consents executed in favor of PFG by Borrower’s principal office lessor in respect of its premises in San Diego and, if required by PFG, each other premises where Borrower holds Non-trivial Collateral, and no statutewarehouseman’s/bailee waivers in respect of third party premises where Non-trivial Collateral is stored or housed, rule including Borrower’s facilities in Xxx Xxxx, XX, Xxxxxxx Xxxx, XX, Xxx Xxxxx, XX and Ashburn, VA;
(h) if Borrower’s Constitutional Documents include a redemption or regulation shall have been enactedsimilar right exercisable at the option of stockholders, which right would become exercisable while any Loan is outstanding, the written waiver of such right by any state or Federal government or governmental agency which would prevent the consummation requisite stockholders until such time as all Obligations are indefeasibly paid and discharged.
(i) duly executed Warrants in favor of PFG and its designees (the “PFG Warrant”) to purchase 450,000 shares of Borrower’s common stock, in agreed form;
(j) the insurance policies and/or endorsements required pursuant to Section 5.2;
(k) payment of the Mergers Fees specified in Section 3 of this Schedule and PFG’s expenses incurred in connection with the Loan;
(l) any third party consents required in order for Borrower to enter into and perform the Loan Documents;
(m) a Subordination Agreement in agreed form between PFG and the Senior Lender;
(n) execution, delivery and (as necessary or impose material conditions appropriate) filing of all Security Instruments;
(o) Subordination Agreements in favor of PFG from each holder from time to time of those certain Secured Subordinated Convertible Notes issued by Borrower, as such notes are described in Borrower’s Form 8K filed with respect theretothe Securities and Exchange Commission on or about December 9, 2011 and any amendments thereto or replacements therefor (the “Secured Subordinated Convertible Notes”); and
(gp) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior extent that the conditions to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and have not been completed as of the date of this Agreement and on and as of the Effective Time as if made on and as hereof, a post-closing obligations letter in PFG’s customary form by which PFG waives or defers performance of such dateconditions as PFG is willing to defer in its sole business discretion. Borrower: EDGEWAVE, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the INC. By /s/ Xxx Xxxx President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent By /s/ Xxxxxx Tietzen Secretary or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreementAss't Secretary PFG: PARTNERS FOR GROWTH III, noteL.P. By /s/ Xxxxxxxx Xxxxx Name: Xxxxxxxx Xxxxx Title: Manager, mortgagePartners for Growth III, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.LLC Its General Partner
Appears in 1 contract
Conditions. Section 8.1 Conditions 3.1 The Purchaser shall and shall procure that its agents shall forthwith upon the signing of this Agreement conduct such review of the assets, liabilities, operations and affairs of the Company as it may reasonably consider appropriate and the Vendor shall provide and procure the Company and its agents to Each Party's Obligation to Effect provide such assistance as the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers Purchaser or its agents may reasonably require in connection with such review.
3.2 Completion shall be conditional upon and subject to the fulfillment at or prior to the Effective Time of the following conditionsto:
(a1) This Agreementthe Purchaser being reasonably satisfied with the results of the due diligence review to be conducted under Clause 3.1;
(2) all necessary consents and approvals required to be obtained on the part of the Vendor in respect of this Agreement and the transactions contemplated hereunder having been obtained and remain in full force and effect, including the Merger Agreements passing by the independent shareholders of the Vendor, at an extraordinary general meeting of the Vendor to be convened and held in accordance with the requirements of the GEM Listing Rules, of such resolutions to approve this Agreement and the transactions contemplated hereunder;
(3) all necessary consents and/or approvals required to be obtained on the part of the Purchaser in respect of this Agreement and the transactions contemplated hereby and thereby shall have having been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued obtained and remain in full force and effect;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g4) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed Vendor Warranties remaining true and accurate and not misleading in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereofrespects; and
(d5) NRLP the Purchaser Warranties remaining true and Newco accurate and not misleading in all material respects.
3.3 The Purchaser shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially use its reasonable endeavours to procure the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 fulfillment of the Codeconditions set out in Clauses 3.2(3) and (5) and the Vendor shall use its reasonable endeavours to procure the fulfillment of the conditions set out in Clauses 3.2(2) and (5).
3.4 Save for the conditions set out in Clauses 3.2(1) and (4) which may at any time be waived by the Purchaser in writing, and the condition set out in Clause 3.2(5) which may at any time be waived by the Vendor in writing, all other conditions set out in Clause 3.2 are incapable of being waived. If the conditions set out in Clause
Appears in 1 contract
Conditions. Section 8.1 2.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers Period Buyer, or its consultants, shall be subject commence due diligence with respect to the fulfillment at or prior to the Effective Time of the following conditions:
(a) This AgreementProperty upon Buyer's and Seller's execution hereof, the Merger Agreements and the transactions contemplated hereby due diligence period shall expire at 5:00 p.m. (Dallas, Texas time) on the date that is forty-five (45) days following the date of execution hereof (the "Conditions Period"). During the Conditions Period, Seller shall make the Property available to Buyer and thereby shall have been approved its agents, consultants and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock engineers for such inspections and NRLP Units entitled to vote;
(b) The waiting periodtests as Buyer deems appropriate. Buyer, if anyits agents, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules consultants and regulations, and such Governmental Entities, to the extent required by applicable lawengineers, shall have approved the transactions contemplated by this Agreement; except where the failure right to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART conduct engineering and NRLP, environmental inspections and their respective Subsidiaries, taken as a whole, or upon the consummation surveys of the transactions contemplated hereby;
(d) The Form S-4 shall have become effective in accordance with the provisions Property, including environment studies, soils/boring tests, removal of the Securities Actsmall samples of soil, and no stop order suspending such effectiveness shall have been issued and remain in effect;
(e) No temporary restraining ordercarpet or similar samples, preliminary or permanent injunction air tests or other order or decree tests as Buyer may reasonably deem necessary. Buyer, its agents and consultants, shall also have the right to inspect all books and records maintained by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required Seller in connection with the transactions Property, including, without limitation, all Leases, agreements, surveys, title insurance policies, letters and proposals relating to the utilization of the Property. Due to the confidential nature of the sale transaction contemplated hereby, Buyer must notify Seller at least 24 hours before entering the Property and (i) if Seller reasonably objects to such entry at the time requested by Buyer, Buyer and Seller will agree on a mutually acceptable time for such entry, and (ii) Seller shall have the right to accompany or have a representative of Seller accompany Buyer (at no cost to Buyer) on each such entry upon the Property. Buyer hereby under agrees to (a) restore the Property to its previous condition promptly following the completion of each such inspection, and (b) indemnify and hold Seller harmless from and against all loss, cost or damage actually incurred by Seller arising out of actions taken at or in regard to the Property by Buyer or its agents, engineers or consultants. Notwithstanding anything to the contrary contained in this Agreement, Seller acknowledges that Buyer shall have the right, in its sole and absolute discretion, to terminate this Agreement on or before the expiration of the Conditions Period. In the event Buyer shall deliver to Seller on or before the end of the Conditions Period written notice of Buyer's election to terminate this Agreement pursuant to this Section 2.1, the Deposit will be immediately returned to Buyer by the Title Company and neither party shall have any loan further rights or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrumentobligations hereunder, except those for which failure to obtain such consents as provided in this Section 2.1 and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code6.1 below.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Homes for America Holdings Inc)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party the Underwriters to effect purchase the Mergers shall Firm Shares and the Optional Shares, as the case may be, at any Closing Date, and the other obligations of the Underwriters hereunder will be subject subject, in your reasonable discretion, to the fulfillment accuracy of the representations and warranties on the part of the Company and the Selling Shareholders herein, both at or prior the Execution Time and at and as of each Closing Date, the accuracy, in your reasonable discretion, of the statements of Company officers made pursuant to the Effective Time provisions hereof, and the timely performance by the Company and the Selling Shareholders of their obligations hereunder and to the following conditionsadditional conditions precedent:
(a) This If the Registration Statement is not effective at the time of execution of this Agreement, the Merger Agreements Registration Statement shall have become effective not later than 5:00 p.m. Boston time on the date of this Agreement or at such later date and time as you may approve in writing. If the transactions contemplated hereby Company has elected to rely upon Rule 43OA of the Rules, the price of the Stock and thereby any other information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been approved transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules within the prescribed time period, and, prior to the Closing Date, the Company shall have provided evidence satisfactory to the Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and adopted declared effective in accordance with the requirements of Rule 430A of the Rules.) No order preventing or suspending the use of any Preliminary Prospectus or the Prospectus shall have been made or shall be in effect and no order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof shall have been issued and no proceeding for the issuance of such an order shall have been initiated or threatened by the affirmative vote Commission or any Blue Sky or other securities authority or any jurisdiction, and any request on the part of the Commission or any Blue Sky or other securities authority of any jurisdiction for additional information (to be included in the Registration Statement or Prospectus or otherwise) shall have been disclosed to you and complied with to the reasonable satisfaction of you and counsel to the Underwriters.
(b) You shall not have advised the Company that the Registration Statement or the Prospectus contains an untrue statement of fact which, in your opinion, is material or omits to state a fact which, in your opinion, is material or is required to be stated therein or is necessary to make the statements therein not misleading.
(c) At the Execution Time and at each Closing Date, you shall have received a letter, dated the date of delivery thereof, of Ernst & Young in form and substance satisfactory to you, confirming that they are independent public accountants with respect to the Company within the meaning of the Securities Act and the applicable Rules and stating in effect that:
(i) The financial statements and schedules audited by them and included in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related Rules;
(ii) The amounts under the headings "Summary Financial Information" and "Selected Financial Data" included in the Registration Statement and the Prospectus agree with the corresponding amounts in the audited and unaudited financial statements of the Company from which such amounts were derived;
(iii) On the basis of performing the procedures specified by the American Institute of Certified Public Accountants for review of interim financial information as described in SAS 71, and a reading of the latest available unaudited financial statements of the Company and certain other information, inspection of the minutes of the meetings of the stockholders and the Board of Directors of the Company, inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to transactions and events subsequent to the date of the latest audited financial statements included in the Registration Statement and the Prospectus and such other inquiries and procedures as may be specified in such letter, nothing came to their attention which caused them to believe that:
(A) As of a majority specified date not more than five days prior to the date of delivery of such letter, there were any changes in the capital stock of the Company or any increase in long-term debt of the Company, or any decreases in net current assets or stockholders' equity of the Company, as compared with amounts shown on the Company's 1996 unaudited financial statements;
(B) For the period from December 31, 1996 to a specified date not more than five days prior to the date of delivery of such letter, there were any decreases in combined net sales or decreases in income from operations or the total or per share amounts of net income, or any decreases or increases, as the case may be, in other items specified by you, in each case as compared with comparable periods in the preceding year, except in each case for increases or decreases which the Registration Statement and the Prospectus disclose, have occurred or may occur; and
(C) They have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Registration Statement and the Prospectus (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company or are derived directly from such records by analysis or computation) with the results obtained from a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter.
(d) You shall have received from Ernst & Young a letter, in accordance with A.U. Section 9325-Auditing Interpretations of Section 325 (February 1989) of the American Institute of Certified Public Accountants (the "Interpretation"), stating that in planning and performing their audit of the audited financial statements included or incorporated by reference in the Registration Statement, they noted no matters involving the Company's internal control structure and its operation that they consider to be material weaknesses as defined in the interpretation.
(e) On each Closing Date, you shall have received a written opinion, dated such Closing Date, of Ropes & Xxxx, counsel for the Company, in form and substance satisfactory to the Underwriters, to the effect that:
(i) The Company is a corporation duly organized, validly existing and in good standing under the laws of Delaware, with corporate power to own its properties and conduct its business as described in the Prospectus, and is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the Company maintains an office or owns or leases property;
(ii) The Subsidiaries are corporations duly organized, validly existing and in good standing under the laws their respective states of incorporation, with corporate power to own their respective properties and conduct their respective businesses, and are duly qualified and in good standing as foreign corporations in each jurisdiction in which the Company maintains an office or owns or leases property; and all of the outstanding shares of ART Common Stock capital stock of the Subsidiaries are owned directly by the Company free and NRLP Units entitled to voteclear of any claim, lien, encumbrance, equity, security interest or other restriction;
(biii) The waiting periodCompany has all requisite corporate power and authority to execute and deliver this Agreement, if anyto perform its obligations under this Agreement, applicable and to issue and sell the Stock;
(iv) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Company;
(v) The authorized, issued and outstanding capital stock of the Company is as set forth in the Capitalization table contained in the Prospectus for the date set forth thereunder (with the exception of shares of restricted stock disclosed in the footnote thereto). The Stock and the other shares of Common Stock issued and outstanding on the date of such opinion have been, duly authorized and validly issued and are fully-paid and nonassessable, with no personal liability attaching to the ownership thereof. The authorized, issued and outstanding stock of the Company conforms in all material respects to the statements in relation thereto contained in the Registration Statement and the Prospectus. The form of Certificate used to evidence the Stock is in due and proper form. The issuance of the Stock to the Underwriters is not subject to (A) statutory preemptive rights or voting or transfer restrictions, (B) preemptive rights or voting or transfer restrictions under the Company's Restated Certificate of Incorporation, as amended, or Bylaws or, (C) to such counsel's knowledge, any contractual preemptive rights or voting or transfer restrictions (other than pursuant to federal and state securities laws);
(vi) None of (A) the execution, delivery, and performance of this Agreement, (B) the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement, including, without limitation, the issuance, sale and delivery of the Firm Shares and the Optional Shares, if any, or (C) compliance with the terms and provisions of this Agreement will (1) conflict with or result in a breach or default or require consent under any agreement listed as an exhibit to the 1996 Form 10-K or the Registration Statement, (2) violate or conflict with any provisions of the Restated Certificate of Incorporation, as amended, or Bylaws of the Company, (3) violate any judgment, decree or order known to such counsel, or law or regulation, of any court or governmental agency, entity or instrumentality binding upon the Company or any Subsidiary or any of their properties, except that such counsel need express no opinion as to state securities or Blue Sky laws or (4) require obtaining the consent or authorization for, or filing with, any governmental agency or entity or any court except such as have been obtained and made under the Securities Act and such as may be required under state securities or Blue Sky laws as to which such counsel need express no opinion; such counsel need express no opinion in this paragraph (vi) as to compliance with the anti-fraud provisions of the federal or state securities laws;
(vii) To such counsel's actual knowledge, no default exists, and no event has occurred which, with notice or lapse of time or both, would constitute a default, in the due performance and observance of any term, covenant or condition of any indenture, mortgage, agreement or instrument to which the Company or any Subsidiary a party or by which the Company or any Subsidiary or any of their respective properties or assets may be bound or affected except where the failure to obtain any for such approval would notdefault or event which, individually or in the aggregatetaken together with all such other defaults or events, would not have a Material Adverse Effect material adverse effect on ART the business, results of operations, prospects, condition (financial or otherwise) or the material assets or properties of the Company and NRLP, and their respective Subsidiaries, the Subsidiaries taken as a whole;
(viii) To the such counsel's actual knowledge, neither the Company nor any Subsidiary is in violation of any term or provision of its Certificate of Incorporation or Bylaws or of any judgment, decree, or upon order known to such counsel;
(ix) The Registration Statement, the Preliminary Prospectus and the Prospectus and each amendment or supplement thereto (except for the financial statements and notes and schedules thereto and other financial or accounting information included therein, as to which such counsel expresses no opinion) comply as to form in all material respects with the requirements of the Securities Act and the Rules; and the documents incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus and each amendment or supplement thereto, when they became effective under the Act or were filed with the Commission under the Exchange Act, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the Rules;
(x) To the knowledge of such counsel, all contracts, agreements and other documents of a character required to be described in the Prospectus or documents incorporated therein by reference or filed as exhibits to the Registration Statement or documents incorporated therein by reference have been so described or filed as exhibits;
(xi) The Registration Statement is effective under the Securities Act, and any required filing of the Prospectus or any supplement thereto pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b). To such counsel's knowledge, no order suspending the effectiveness of the Registration Statement, or any post-effective amendment thereof, has been issued and no proceedings therefor have been instituted or are threatened, pending or contemplated;
(xii) To the knowledge of such counsel, there are no legal or governmental proceedings or investigations pending or threatened to which the Company or any Subsidiary is or would be a party or to which any of their respective property is subject (A) which are required to be described in the Registration Statement or the Prospectus or documents incorporated therein by reference and which are not so described or (B) which might prevent the consummation of the transactions contemplated herebyby this Agreement;
(dxiii) The Form S-4 shall To the knowledge of such counsel, except as described in the Prospectus, no holder of any security of the Company has any right to require or participate in the registration under the Securities Act of the Common Stock or any other security to be effected by the Registration Statement except for such rights as have become effective been waived;
(xiv) To the extent that the statements contained in accordance with the Prospectus under the headings "Risk Factors-Antitakeover Provisions", "Risk Factor - Shares Eligible for Future Sale", "Business-Environmental/Legal Proceedings", "Description of Capital Stock" and "Shares Eligible For Future Sale" refer to matters of law or summarize the status of litigation or summarize the provisions of the Securities Actstatutes, and no stop order suspending regulations, contracts, agreements or other documents, such effectiveness shall statements have been issued and remain in effect;
(e) No temporary restraining orderreviewed by such counsel, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true are accurate and correct in all material respects on and as fairly present the status of the date of this Agreement any such litigation and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART provisions purported to that effectbe summarized;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
Appears in 1 contract
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- (a) The respective obligations obligation of each party hereto to effect consummate the Mergers transactions contemplated by this Securities Transfer Agreement shall be subject to the fulfillment satisfaction (or waiver by each at or prior to the Effective Time Transfers), of each of the following conditions:conditions (other than conditions that by their terms are to be satisfied by actions at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing):
(ai) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby No Law or Order shall have been approved and adopted enacted, issued, promulgated, enforced or entered by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to any Governmental Entity or Judicial Authority that prohibits the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Securities Transfer Agreement; except where and
(ii) The transactions contemplated by the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon Stock Purchase Agreement shall be consummated concurrently with the consummation of the transactions contemplated hereby;.
(db) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP the Sellers to effect consummate the NRLP Merger transactions contemplated by this Securities Transfer Agreement shall be subject to the fulfillment satisfaction (or waiver) at or prior to the Effective Time Transfers, of each of the following additional conditions:condition(s) (other than conditions that by their terms are to be satisfied by actions at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing):
(ai) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and Each of the representations and warranties of ART the Insider Holders, PrinceRidge and AAC contained in this Securities Transfer Agreement and the Merger Agreements shall be true and correct in all material respects on (except for such representations and warranties that are qualified by their terms as to materiality, which representations and warranties as so qualified shall be true and correct in all respects) as of the date of this Securities Transfer Agreement and on and as of the Effective Time Closing Date as if though made on the Closing Date (except for those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of such specified date); provided, except however, that the representations and warranties set forth in Sections 2.1(a), (b), (c) and (f), Sections 4.1(a), (b) and (c) and Sections 4.2(a), (b) and (c) shall be true and correct in all respects;
(ii) Each of the covenants and agreements contained in this Securities Transfer Agreement to be performed by the Insider Holders, PrinceRidge and AAC at or before Closing shall have been performed in all material respects by the Insider Holders, PrinceRidge and AAC, as contemplated applicable, at or permitted by this Agreement and before the Merger Agreements, and NRLP Closing; and
(iii) Each Seller shall have received a certificate each of the President or of an Executive Vice President of ART items set forth in Section 1.2(a) to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with extent related to the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure Transferred Insider Securities being transferred to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;it.
(c) NRLP The obligation of the Insider Holders to consummate the transactions contemplated by this Securities Transfer Agreement shall have received be subject to the letter satisfaction (or waiver) at or prior to the Transfers, of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; andthe following condition:
(di) NRLP Each of the representations and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to warranties of the effect that the NRLP Merger Sellers contained in this Securities Transfer Agreement shall be treated true and correct in all material respects (except for federal income tax purposes such representations and warranties that are qualified by their terms as part to materiality, which representations and warranties as so qualified shall be true and correct in all respects) as of the date of this Securities Transfer Agreement and as of the Closing Date as though made on the Closing Date (except for those representations and warranties that address matters only as of a transaction that satisfies specified date, the requirements accuracy of Section 351 which shall be determined as of the Codesuch specified date).
Appears in 1 contract
Samples: Stock Purchase Agreement (Australia Acquisition Corp)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect 4.1 Any of the Mergers. ----------------------------------------------------------- The respective obligations of each party Purchaser hereunder is conditional upon:
4.1.1 the Purchaser being satisfied in its sole and absolute discretion with the results of a legal and financial due diligence review to effect be conducted by it on the Mergers shall Holding Company, the Company, and Guangzhou SunRoom(the "Companies");
4.1.2 if required, the relevant stock exchange, government and securities authority and regulator in the United States granting listing of the PACT Shares to be subject issued herein;
4.1.3 if required, a resolution at a meeting of the Directors of PACT approving this Agreement, the purchase of the Sale Shares and the Subscription of the Subscription Shares, creating and giving authority for the issue of the Escrow Shares, the implementation of the transactions contemplated hereunder and all other matters incidental hereto in accordance with the provisions of PACT's articles of incorporation and Bylaws and such rules, regulations and laws in force from time to time in the United States and which apply to PACT;
4.1.4 if required, the shareholders of PACT at a meeting of shareholders approving this Agreement, the purchase of the Sale Shares, creating and giving authority for the issue of the Escrow Shares, the implementation of the transactions contemplated hereunder and all other matters incidental hereto in accordance with the provisions of PACT's articles of incorporation and Bylaws and such rules, regulations and laws in force from time to time in the United States and which apply to PACT;
4.1.5 all amounts outstanding to the fulfillment Seller by the Companies have been either repaid to the Companies or otherwise waived; and
4.1.6 the Purchaser being satisfied at its sole and absolute discretion that the accounts of the Companies can be consolidated into PACT's audited financial statement, including balance sheet and income statements in accordance with the US GAAP.
4.2 The Warrantor and the Companies undertake to disclose in writing to the Purchaser anything which will or may prevent any of the conditions from being satisfied at or prior to Completion, as applicable, immediately upon the Effective Time Warrantor and/or the Companies becoming aware of such a situation.
4.3 From the date of this Agreement until Completion, except for the transactions described herein or otherwise with the prior written consent of the following conditionsPurchaser:
(a) This Agreement, The Warrantor warrants and undertakes that they will cause the Merger Agreements Companies to:
(i) conduct its Business in the ordinary course and consistent with past practices;
(ii) use its best efforts to maintain in full force and effect the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority existence of the outstanding shares Companies;
(iii) promptly and timely prepare and file any financial reports and franchise tax returns and pay all taxes and assessments, if any, required to maintain the existence of ART Common Stock the Companies;
(iv) keep records in which true and NRLP Units entitled correct entries will be made of all material transactions by and with the Companies;
(v) duly observe all material requirements of governmental authorities unless contested in good faith by appropriate proceedings with the consent of the Purchaser;
(vi) promptly pay and discharge, or cause to votebe paid and discharged, when due and payable, all lawful taxes, assessments and governmental charges or levies imposed upon the income, profits, property or business of the Companies unless contested in good faith by appropriate proceedings with the consent of the Purchaser;
(vii) at all times comply with the provisions of all contracts, agreements and leases to which the Companies is a party, unless contested in good faith by appropriate proceedings with the consent of the Purchaser; and
(viii) to use best endeavors to procure that the employees of the Companies at the date of this Agreement remain and continue as employees after completion;
(b) The waiting period, if any, applicable Warrantor warrants and undertakes to cause the consummation Companies not to:
(i) modify its [Memorandum or Articles of the Mergers under the HSR Act shall have expired or been terminatedIncorporation or] [Bylaws];
(cii) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually cause or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, permit its liquidation or upon the consummation of the transactions contemplated herebydissolution;
(diii) institute, or permit to be instituted against it, any proceeding, which remains undismissed for a period of [30] days after the filing thereof, seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding-up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order or relief or the appointment of receiver, trustee or other similar official for it or for any substantial part of its property;
(iv) make a general assignment for the benefit of its creditors;
(v) except as agreed in this Agreement, declare or pay any dividend or make any distribution to any of its shareholders;
(vi) issue, redeem, sell or dispose of, or create any obligation to issue, redeem, sell or dispose of, any shares of its capital stock (whether authorized but unissued or held in treasury);
(vii) effect any stock split, reclassification or combination;
(viii) modify its agreements and other obligations with respect to its long-term indebtedness, including but not limited to its loan agreements, indentures, mortgages, debentures, notes and security agreements.
(ix) Negotiate or enter into an agreement with another party related to the sale of the Companies.
4.4 Until Completion, the Warrantor, the Companies shall procure that the Purchaser, its agents and representatives are given reasonable access to such documents relating to the Companies, as the Purchaser shall request. The Form S-4 shall have become effective Companies will assist the Purchaser's auditor to complete the audit report of the Companies in accordance with the provisions of the Securities ActUS GAAP by March 31, 2005.
4.5 The Warrantor warrants, represents and no stop order suspending such effectiveness undertakes that there shall have been issued and remain no Material Adverse Change in effect;
(e) No temporary restraining orderthe assets or the business, preliminary prospects, financial condition or permanent injunction or other order or decree by any court results of competent jurisdiction which prevents the consummation operations of the Mergers or imposes material conditions with respect thereto Companies.
4.6 The Purchaser shall have been issued and remain be entitled to rescind this Agreement by notice in effect (each party agreeing writing to use its reasonable efforts the Seller, the Companies if prior to have Completion it appears that any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers Warranties is not or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed was not true and accurate in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed or if any act or event occurs which, had it occurred on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of before the date of this Agreement and on and as Agreement, would have constituted a breach of any of the Effective Time as Warranties or if made on and as there is any material non fulfillment of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate any of the President or Warranties which (being capable of an Executive Vice President of ART remedy) is not remedied prior to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the CodeCompletion.
Appears in 1 contract
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect 3.1 Completion of the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers Subscription shall be subject to conditional upon the fulfillment following conditions having been fulfilled or, at or prior to the Effective Time discretion of the following conditionsSubscriber and the Subscriber Subsidiary, waived:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority Listing Committee of the outstanding shares Stock Exchange granting listing of, and permission to deal in, all of ART Common the New Shares on the Stock and NRLP Units entitled to voteExchange;
(b) The waiting period, if any, applicable to the consummation Company Announcement being released for publication on the first Business Day immediately following the date of the Mergers under the HSR Act shall have expired or been terminated;this Agreement; and
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable lawsSubscriber and the Subscriber Subsidiary having jointly received from the Company, rules at the Company's expense, a signed legal opinion from the Company's PRC counsel that no PRC governmental or regulatory approvals of this Agreement and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated herein are required.
3.2 In the event that any of the Conditions is not fulfilled, or waived by the Subscriber and the Subscriber Subsidiary, by the Long Stop Date, this AgreementAgreement and all rights and obligations of the parties hereunder shall automatically cease and terminate save for accrued rights and obligations.
3.3 The Company undertakes to notify the Subscriber and the Subscriber Subsidiary promptly in writing following the satisfaction of the Conditions.
3.4 If, at any time prior to Completion:
(a) the Company issues or ought reasonably to have issued any announcement, or any supplemental circular or other written communication containing revisions to the Company Circular, due to a material adverse change in the business or financial condition of either (i) the Company and its Affiliates taken as a whole, or (ii) the companies or entities or businesses which the Company plans to acquire pursuant to the Acquisition, taken as a whole; except where or
(b) there shall develop, occur, exist or come into effect:
(i) any outbreak or escalation of hostilities involving the failure to obtain PRC or Hong Kong or the declaration by the PRC or Hong Kong of a national emergency or war; or
(ii) any such approval would notact of God, individually riot, public disorder, civil commotion, fire, flood, explosion, epidemic, terrorism, war, strike, lock-out or other calamity or crisis; or
(iii) the imposition of any moratorium, suspension or material restriction on trading in the securities of the Company or in securities generally on the aggregateHong Kong Stock Exchange or the New York Stock Exchange; or
(iv) any change in financial, have political, military, industrial, economic, legal, fiscal, regulatory or stock market maters or conditions in Hong Kong or the PRC or the British Virgin Islands; or
(v) any new law or regulation or change in existing laws or regulations in Hong Kong or the PRC or the British Virgin Islands or any change in the interpretation or application thereof by any court or other competent authority in Hong Kong or the PRC or the British Virgin Islands, which, in the reasonable opinion of the Subscriber and/or the Subscriber Subsidiary as determined by the Subscriber and/or Subscriber Subsidiary, is or will be or is likely to be materially adverse to the business or financial condition of either (i) the Company and its Affiliates taken as a Material Adverse Effect on ART and NRLPwhole, and their respective Subsidiariesor (ii) the companies or entities or businesses which the Company plans to acquire pursuant to the Acquisition, taken as a whole, or upon then the consummation Subscriber and the Subscriber Subsidiary shall each have the right to immediately terminate this Agreement by written notice to the Company, provided that the Subscriber and the Subscriber Subsidiary shall each consult with the Company before electing to terminate this Agreement pursuant to this clause. Upon the termination of this Agreement, all rights and obligations of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued parties hereunder shall have been approved cease and terminate save for listing on the New York Stock Exchange, subject to official notice of issuanceaccrued rights and obligations.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
Appears in 1 contract
Samples: Subscription Agreement (China Mobile Hong Kong LTD /Adr/)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations effectiveness of each party to effect the Mergers shall be this Amendment is subject to the fulfillment at or prior to the Effective Time satisfaction of the following conditionsconditions precedent:
(a) This Agreement, the Merger Agreements Agent and the transactions contemplated hereby and thereby Lenders shall have been approved received this Amendment and adopted a Note properly executed by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to voteLoan Parties;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained the Loan Parties set forth herein and in this Agreement and the Merger Agreements Loan Documents shall be true and correct in all material respects on respects, (ii) no Event of Default or any other event which, upon the lapse of time, service of notice, or both, which would constitute an Event of Default under any of the Loan Documents, shall have occurred and be continuing, and (iii) the Loan Parties shall be in compliance with the Loan Agreement and the other Loan Documents; and the Loan Parties shall have certified the foregoing matters to the Agent and the Lenders, in the case of the preceding clauses (i) through (iii) but both before and after giving pro forma effect to the making of the Second Amendment Term Loan;
(c) the Agent and the Lenders shall have received a certificate from the Loan Parties attaching (i) resolutions authorizing this Amendment and the transactions contemplated thereby, and (ii) a certificate of good standing or its equivalent from such Loan Party’s jurisdiction of incorporation or formation, as applicable, and stating that there have been no changes to the governing and organizational and incumbency information since the Agreement Date, or attaching true and accurate copies of the amended governing and organizational documents and incumbency information in effect as of the date of this Agreement and on and as of Amendment;
(d) the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement Agent and the Merger Agreements, and NRLP Lenders shall have received a certificate (i) all other documents, information and reports required or requested to be executed and/or delivered by the Loan Parties under any provision of this Amendment or any other Loan Documents, and (ii) payment of all reasonable fees and expenses (including the closing fee and the reimbursement of all other reasonable out-of-pocket fees and expenses of the President or of an Executive Vice President of ART to that effect;Agent and the Lenders); and
(be) ART in addition to the amounts set forth in Section 4(d) above, the Borrower shall have obtained paid to the consent Agent, for its own account, on or approval prior to the date hereof a fee in the amount of each person whose consent or approval shall be required $2,500 in connection with the transactions amendments contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Codeherein.
Appears in 1 contract
Samples: Loan and Security Agreement (GTY Technology Holdings Inc.)
Conditions. Section 8.1 Conditions 3.1 The availability of the Facilities and the Original Credit Parties’ obligations to Each Party's Obligation to Effect arrange, underwrite and fund the Mergers. ----------------------------------------------------------- The respective obligations Underwriting Proportion of each party to effect the Mergers shall be subject to the fulfillment at or prior to the Effective Time of the following conditionsFacilities is subject only to:
(a) This Agreementreceipt by us of a copy of this letter and the Fee Letter countersigned by you; and
(b) satisfaction of the Certain Funds Conditions and the Initial Conditions Precedent set out in the Term Sheet. There are no other conditions, implied or otherwise, to the commitments of the Original Credit Parties, their obligations hereunder and their funding of the Facilities other than as expressly referred to in the foregoing sentence.
3.2 Each Original Credit Party is pleased to confirm that:
(a) its credit committee and all other internal bodies or committees have given full and final approval for arranging, underwriting and/or funding (as the case may be) the Facilities on the “certain funds” basis as described and on the terms set out in the Commitment Documents, and performing all of its duties, roles and obligations as contemplated by the Commitment Documents (subject only to client identification procedures in respect of the Sponsors, the Merger Agreements Parent and the Company required in connection with the Merger, the Facilities and the transactions contemplated hereby therein (together, the Transaction) and thereby shall have been approved set out in “Project Haven - KYC Checklist” attached as Schedule 2 hereto in compliance with applicable laws, regulations and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to voteinternal requirements (including, without limitation, all applicable money laundering rules));
(b) The waiting periodit has received and reviewed the draft or final Original Financial Statements, if anyReports other than the Structure Memorandum (the Relevant Reports) and Group Structure Chart (in each case, applicable as defined in the Term Sheet, and together, the Commercial CPs) and (i) the relevant conditions precedent set out in the Term Sheet relating to the consummation Relevant Reports will be satisfied once final versions of the Mergers Relevant Reports are delivered that are not materially different in respects which are materially adverse to the interests of the Credit Parties (taken as a whole) under the HSR Act shall Commitment Documents compared to the most recent form of such Relevant Reports delivered to the Original Credit Parties on or before the date of this letter or are approved by the Original Arranger (acting reasonably with such approval not to be unreasonably withheld or delayed) and it will promptly confirm this accordingly to the Agent, and (ii) the relevant conditions precedent set out in the Term Sheet relating to the Commercial CPs (other than the Relevant Reports) have expired been satisfied, or been terminated(to the extent any updated version of the relevant Commercial CPs (other than the Relevant Reports) are delivered after the date of this letter) will be satisfied once such updated versions of the relevant commercial CPs (other than the Relevant Reports) are delivered (as applicable);
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable lawsStructure Memorandum, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required Consortium Agreement are subject to be performed on or prior to the Effective Time receipt and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted review by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereofOriginal Credit Party; and
(d) NRLP there are no outstanding approvals, due diligence items or other internal impediments to it arranging, underwriting and/or funding (as the case may be) the Facilities on the “certain funds” basis as described and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to on the effect that terms set out in the NRLP Merger shall be treated for federal income tax purposes Commitment Documents and performing all of its roles, duties and obligations as part of a transaction that satisfies contemplated by the requirements of Section 351 of the CodeCommitment Documents.
Appears in 1 contract
Samples: Commitment Letter (Yao Jinbo)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect 4.1 Any of the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be subject to the fulfillment at or prior to the Effective Time of the following conditionsPurchaser hereunder is conditional upon:
(a) This Agreement, the Merger Agreements Purchaser being satisfied in its sole and absolute discretion with the results of a legal and financial due diligence review to be conducted by it on the Holding Company and the transactions contemplated hereby and thereby shall have been approved and adopted Company (the “Companies”), all such due diligence to be completed by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote1 January 2008;
(b) The waiting period, if any, applicable to the consummation Purchaser being satisfied (acting reasonably) that either of the Mergers under Seller or Harmen Breninnkmeijer has either (i) completed or will on the HSR Act shall Completion Date complete a capital raising for $5,000,000 or (ii) has obtained irrevocable commitments from parties to subscribe for $5,000,000 on a capital raising to occur within 6 months of the Completion Date provided always that the Purchaser agrees that in the event that the Seller waives the condition at clause 4.4(b), the Purchaser is deemed to have expired or been terminatedwaived this condition;
(c) The parties hereto shall have made if required, the requisite filings with all Governmental Entities as shall be required pursuant to applicable lawsrelevant stock exchange, rules government and regulations, securities authority and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or regulator in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation United States granting listing of the transactions contemplated herebyPACT Shares to be issued herein;
(d) The Form S-4 shall have become effective a resolution at a meeting or unanimous written consent of the Directors of PACT approving this Agreement, the purchase of the Sale Shares, the issuance of the Escrow Shares, the implementation of the transactions contemplated hereunder and all other matters incidental hereto in accordance with the provisions of PACT’s certificate of incorporation and Bylaws and such rules, regulations and laws in force from time to time in the Securities Act, United States and no stop order suspending such effectiveness shall have been issued and remain in effectwhich apply to PACT;
(e) No temporary restraining orderif required, preliminary or permanent injunction or other order or decree by any court the shareholders of competent jurisdiction which prevents PACT at a meeting of shareholders approving this Agreement, the consummation purchase of the Mergers or imposes material conditions Sale Shares, the issuance of the Escrow Shares, the implementation of the transactions contemplated hereunder and all other matters incidental hereto in accordance with respect thereto shall have been issued the provisions of PACT’s certificate of incorporation and remain Bylaws and such rules, regulations and laws in effect (each party agreeing force from time to use its reasonable efforts time in the United States and which apply to have any such injunction, order or decree lifted)PACT;
(f) No action shall all amounts outstanding to either the Seller or Harmen Breninnkmeijer by the Companies have been taken, and no statute, rule either repaid by the Companies or regulation shall have been enacted, otherwise waived by any state the Seller or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect theretoHarmen Breninnkmeijer; and
(g) The shares the auditor of Newco Common Stock required to the Purchaser and PACT, Xxxxxx & Company, Inc. (“Xxxxxx”) being satisfied at its sole and absolute discretion that the accounts of the Companies can be issued hereunder shall have been approved for listing on consolidated into PACT’s audited financial statement, including balance sheet and income statements in accordance with the New York Stock Exchange, subject to official notice of issuanceUS GAAP.
Section 8.2 Conditions 4.2 The Seller and the Companies undertake to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject disclose in writing to the fulfillment Purchaser anything which will or is reasonably likely to prevent any of the conditions from being satisfied at or prior to the Effective Time Completion Date, as applicable, immediately upon the Seller and/or the Companies becoming aware of such a situation.
4.3.1 From the date of this Agreement until the Completion Date, except for the transactions described herein or otherwise with the prior written consent of the following additional conditionsPurchaser:
(i) The Warrantor warrants and undertakes that it will cause the Companies to:
(a) ART shall have performed conduct its Business in the ordinary course and consistent with past practices;
(b) use its best efforts to maintain in full force and effect the existence of the Companies;
(c) promptly and timely prepare and file any financial reports and franchise tax returns and pay all material respects its agreements contained in this Agreement taxes and the Merger Agreements assessments, if any, required to be performed on or prior to maintain the Effective Time and existence of the representations and warranties of ART contained Companies;
(d) keep records in this Agreement and the Merger Agreements shall be which true and correct in entries will be made of all material respects on transactions by and as with the Companies;
(e) duly observe all material requirements of governmental authorities unless contested in good faith by appropriate proceedings with the consent of the Purchaser;
(f) promptly pay and discharge, or cause to be paid and discharged, when due and payable, all lawful taxes, assessments and governmental charges or levies imposed upon the income, profits, property or business of the Companies unless contested in good faith by appropriate proceedings with the consent of the Purchaser;
(g) at all times comply with the provisions of all contracts, agreements and leases to which the Companies are a party, unless contested in good faith by appropriate proceedings with the consent of the Purchaser; and
(h) to use reasonable endeavors to procure that the key employees of the Companies at the date of this Agreement remain and on continue as employees after completion except in the event of a breach of contract by such employee(s);
(ii) The Warrantor warrants and as undertakes to cause the Companies not to:
(a) modify their Memorandum or Articles of the Effective Time as if made on and as of such date, except as contemplated Incorporation or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effectBylaws;
(b) ART shall have obtained the consent cause or approval of each person whose consent permit their liquidation or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated herebydissolution;
(c) NRLP shall have received institute, or permit to be instituted against them, any proceeding, which remains un-dismissed for a period of 30 days after the letter filing thereof, seeking to adjudicate either as bankrupt or insolvent, or seeking liquidation, winding-up, reorganization, arrangement, adjustment, protection, relief or composition of BDO Xxxxxxxthem or their debts under any law relating to bankruptcy, LLP referred to in Section 7.8 hereof; andinsolvency or reorganization or relief of debtors, or seeking the entry of any order or relief or the appointment of receiver, trustee or other similar official for them or for any substantial part of their property;
(d) NRLP make a general assignment for the benefit of their creditors;
(e) except as agreed in this Agreement, declare or pay any dividend or make any distribution to any of their shareholders;
(f) issue, redeem, sell or dispose of, or create any obligation to issue, redeem, sell or dispose of, any shares of their capital stock (whether authorized but unissued or held in treasury);
(g) effect any stock split, reclassification or combination;
(h) modify their agreements and Newco other obligations with respect to their long-term indebtedness, including but not limited to their loan agreements, indentures, mortgages, debentures, notes and security agreements provided that the Company shall be permitted to enter into bridging loan agreements in a maximum aggregate amount of $5,000,000
(i) negotiate or enter into an agreement with another party related to the sale of the Companies or provide or agree to provide any information to another party for the purpose of evaluating the possibility of the sale of the Shares, the Companies or any part of their respective businesses to such other party.
(iii) the Warrantor and the Companies shall procure that the Purchaser, its agents and representatives are given reasonable access to such documents relating to the Companies, as the Purchaser shall request. The Companies will assist the Purchaser’s auditor to complete the audit report of the Companies in accordance with the US GAAP.
(iv) there shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially been no material adverse change in the assets or the business, prospects, financial condition or results of operations of the Companies.
4.3.2 The Purchaser shall be entitled to rescind this Agreement by notice in writing to the effect Seller, the Companies if prior to the Completion Date it appears that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 any of the CodeWarranties is not or was not true and accurate in any material respects or if there is any material non fulfillment of any of the Warranties which (being capable of remedy) is not remedied prior to the Completion Date.
Appears in 1 contract
Samples: Acquisition Agreement (Octavian Global Technologies, Inc.)
Conditions. Section 8.1 Conditions In addition to Each Party's Obligation any other conditions to Effect the Mergers. ----------------------------------------------------------- The respective obligations Loan set out in this Agreement, PFG will not make the Loan until PFG shall have received, in form and substance satisfactory to PFG, such documents, and completion of each party to effect the Mergers such other matters, as PFG may reasonably deem necessary or appropriate, including that there shall be subject no discovery of any facts or circumstances which would, as determined by PFG in its sole discretion, negatively affect or be reasonably expected to negatively affect the fulfillment at or prior to the Effective Time collectability of the following conditionsObligations, PFG’s security interest in Borrower’s Collateral or the value thereof, including, without limitation:
(a) This duly executed original signatures of each Borrower to the Loan Documents to which Borrower is a party, including this Agreement, the Merger Agreements a Cross-Corporate Continuing Guaranty and the transactions contemplated hereby Security Agreement (together with ancillary Solvency Certificates), an Intellectual Property Security Agreement and thereby shall have been approved related Collateral Notices and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to voteAgreements;
(b) The waiting period, if any, applicable Borrower’s respective constitutional documents and a good standing certificate of each Borrower certified by the Secretary of State of the State of Nevada as of a date no earlier than thirty (30) days prior to the consummation date hereof, together with a foreign qualification certificate from the State of the Mergers under the HSR Act shall have expired or been terminatedCalifornia for each Borrower operating in California;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules an Incumbency Certificate and regulations, Secretary's Certificate certifying and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated herebyappending borrowing resolutions for each Borrower;
(d) The Form S-4 shall have become effective in accordance with the provisions account control agreements as required by Section 8(a) of the Securities Actthis Schedule, duly executed by Borrower and no stop order suspending such effectiveness shall have been issued and remain in effecteach relevant depositary institution;
(e) No temporary restraining ordercertified copies, preliminary dated as of a recent date, of financing statement searches, as PFG shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain or, in effect (each party agreeing to use its reasonable efforts to have any such injunctionconnection with the Loan, order will be terminated or decree lifted)released;
(f) No action shall have been takenthe Representations, duly executed by the Agent on behalf of itself and no statuteeach Borrower,
(g) a landlord consent executed in favor of PFG by the Borrower’s principal office lessor in respect of Borrower’s premises in Irvine, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent California;
(h) a duly executed warrant purchase agreement and warrants in favor of PFG to purchase 10,000,000 shares of Borrower’s common stock in agreed form (the consummation “PFG Warrant”);
(i) the insurance policies and/or endorsements required pursuant to Section 4.3;
(j) payment of the Mergers or impose material conditions Fee specified in Section 3 of this Schedule and PFG’s expenses incurred in connection with respect theretothe Loan;
(k) a duly executed Compliance Certificate dated the date hereof;
(l) evidence of the full and indefeasible pay-off of any Indebtedness other than Permitted Indebtedness, together with the discharge any and all associated liens; and
(gm) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior extent required in order to the Effective Time of the following provide Borrower additional conditions:
(a) ART shall have performed in all material respects its agreements contained time to satisfy certain conditions set forth in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained Section 9, a post-closing obligations letter agreement in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from PFG's customary form. By /s/ Bxxxxx X. Xxxxxxxx By /s/ Lxxxxxxx Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.Name: /s/ Lxxxxxxx Xxxxx By /s/ Lxxx Xxx By /s/ Jxxx Xxxxxxxx By /s/ Bxxxxx X. Xxxxxxxx By /s/ Lxxx Xxx By /s/ Lxxx Xxx
Appears in 1 contract
Samples: Loan and Security Agreement (Composite Technology Corp)
Conditions. Section 8.1 Conditions (a) The obligation of the Purchasers to Each Party's Obligation to Effect each purchase of the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be Debt is subject to the fulfillment at following conditions being satisfied on or prior to before each Closing Date (as defined in the Effective Time of the following conditions:definitive Purchase Agreements):
(ai) This Agreementthe Purchase Agreements described in paragraph 13 shall be in execution form;
(ii) the Purchasers and AIP shall have received at each closing customary closing certificates, the Merger Agreements schedules, opinions and the transactions contemplated hereby other closing documents in form and thereby substance satisfactory to MSAM and AIP;
(iii) Since December 31, 1996, there shall have been approved no material adverse change or any development involving a material adverse change in the condition (financial or otherwise) of AIP and adopted by the affirmative vote of its subsidiaries, taken a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting periodwhole, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregateearnings, have a Material Adverse Effect on ART business, prospects or operations of AIP and NRLP, and their respective Subsidiariesits subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(giv) The shares MSAM shall have completed its due diligence investigation of Newco Common Stock required AIP and its subsidiaries, which investigation shall be in scope, and with results reasonably satisfactory to be issued hereunder MSAM, and MSAM shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject given access to the fulfillment at or prior to the Effective Time management, records, books of the following additional conditions:
(a) ART shall have performed in all material respects account, contracts and properties of AIP and its agreements contained in this Agreement subsidiaries and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;such financial, business and other information regarding AIP and its subsidiaries as it shall have reasonably requested.
(b) ART MSAM covenants that it shall have obtained complete its environmental, lease and engineering due diligence on or before May 5, 1997. Upon completion of such due diligence, MSAM shall give written notice to AIP of completion of the consent or approval of each person whose consent or approval due diligence and shall state whether anything they discovered while conducting such due diligence shall cause it to terminate its obligation to acquire the Debt under Paragraph 14(a)(iv) above.
(c) Notwithstanding anything contained in this agreement to the contrary, at no time will the Purchasers be required to acquire Debt to the extent that such purchase would result in connection with the transactions contemplated hereby under any loan or credit agreementPurchasers owning, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon in excess of 37.8% of AIP's Common Shares outstanding immediately after such purchase, assuming solely the consummation conversion of the transactions contemplated hereby;
(c) NRLP shall have received Debt owned by the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP Purchasers and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of not on a transaction that satisfies the requirements of Section 351 of the Codefully-diluted basis.
Appears in 1 contract
Samples: Investment Agreement (American Industrial Properties Reit Inc)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect Notwithstanding the Mergers. ----------------------------------------------------------- The respective obligations of foregoing, this Amendment shall not become effective unless and until (x) this Amendment has been approved in writing by the Borrowers, the Agent and the Banks; and (y) the Borrowers shall have delivered each party to effect the Mergers shall be subject to the fulfillment at or prior to the Effective Time of the following conditionsto the Agent, in form and substance satisfactory to the Agent and the Banks:
a. Resolutions of the Board of Directors of each Borrower and each Obligated Party certified by its Secretary or an Assistant Secretary which authorize its execution, delivery, and performance of the Amendment and the New CP Notes or the Guaranty, as applicable;
b. A certificate of incumbency for each Borrower and each Obligated Party certified by its Secretary or an Assistant Secretary certifying the name of each of its officers (ai) This Agreementwho is authorized to sign the Amendment and the New CP Notes to which it is or is to be a party (including the certificates contemplated herein) together with specimen signatures of each such officer and (ii) who will, until replaced by other officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with the Amendment, the Merger Agreements Credit Agreement and the transactions contemplated hereby and thereby shall have been approved thereby;
c. The certificate of incorporation of each Borrower and adopted each Obligated Party certified by the affirmative vote Secretary of State of the state of its incorporation and dated a current date;
d. The bylaws of each Borrower and each Obligated Party certified by its Secretary or an Assistant Secretary;
e. Certificates of the appropriate government officials of the state of incorporation of each Borrower and each Obligated Party as to their respective existence, authority to do business and good standing, as applicable, in such states, each dated a current date;
f. The New CP Notes executed by each Borrower;
g. A favorable opinion of legal counsel to Borrowers and the Obligated Parties as to such matters as the Bank may reasonably request;
h. The Acknowledgment of Guarantors attached hereto, executed by each party to the Guaranty;
i. A Subsidiary Joinder Agreement, in the form attached hereto as Exhibit E, executed by any Regular Subsidiary of either Borrower that is not currently party to the Guaranty.
j. Payment to the Agent of a majority fee pursuant to the fee letter between the Borrowers and the Agent;
k. Payment to the Agent of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to $125,000 facility fee for the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required CP Commitment pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree liftedSection 3.10(ii);
(f) No action shall have been taken, l. Payment of all other fees and no statute, rule or regulation shall have been enacted, expenses payable by any state or Federal government or governmental agency which would prevent the consummation of Borrowers pursuant to the Mergers or impose material conditions with respect theretoCredit Agreement as amended hereby; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on m. Such other documents as the New York Stock Exchange, subject to official notice of issuanceAgent or its counsel may reasonably request.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
Appears in 1 contract
Samples: Credit Agreement (Nelnet Inc)
Conditions. Section 8.1 Conditions It is expressly understood that the obligations and agreements of the Company pursuant to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be this Agreement are expressly subject to the fulfillment at continuing performance by Blumenfeld of the obligations, covenaxxx xxx xxreements assumed by him pursuant hereto. In this regard and not by way of limitation, the obligations, covenants and agreements of the Company pursuant to Sections 2 and 3 are expressly conditioned on Blumenfeld continuing performance of xxx xxxxgations and agreements described in Sections 2, 3, 4, 6, 7, 8, 9 and 13 hereof. In the event the Company's Board of Directors in good faith determines (after providing Blumenfeld and counsel with noticx xxx x reasonable opportunity to appear before the Board of Directors), in its sole discretion, that Blumenfeld has engaged in any actxxxxx xxxt is materially inimical, contrary, detrimental or prior harmful to the Effective Time Company's interests or otherwise breached any representation, agreement, covenant or obligation contained herein (and such breach is not cured within ten (10) days of Blumenfeld's receipt of a written notxxx xx xxx Company alleging such breach in reasonable detail), the agreements, covenants and obligations of the following conditions:
(a) This AgreementCompany pursuant hereto shall terminate and be of no further force or effect, without prejudice to any other right the Company may have hereunder to performance of the agreements and obligations assumed by Blumenfeld hereunder. Notwithstandxxx xxx xoregoing, the Merger Agreements ten (10) day cure period described in the immediately preceding sentence will not apply if the Company's Board of Directors determines that Blumenfeld breached Sections 2, 4 axx/xx 00 of this Agreement. In the event the Company fails to pay Blumenfeld any amounts owing hereunder xxxxx xxxn for a reason set forth in the third sentence of this Section (and such failure is not cured within ten (10) days of the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote Company's receipt of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(bwritten notice by Blumenfeld alleging such failure), thx Xxxxxxxetition provisions referenced in Paragraph 4(e) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as hereof shall be required pursuant to applicable laws, rules terminated and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually of no further force or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
Appears in 1 contract
Samples: Consulting and Separation Agreement (Sport Supply Group Inc)
Conditions. Section 8.1 5.1 Completion by the Buyer is conditional on the following Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be subject being satisfied (in addition to the fulfillment at or prior Conditions set out in clause 13.1) on terms that are reasonably satisfactory to the Effective Time Buyer, or waived by the Buyer in accordance with clause 5.5:
5.1.1 each of the following conditions:Warranties remaining true, accurate and not misleading in all material respects as at Completion;
(a) This Agreement5.1.2 there having been no material breach by any Seller of its obligations under this Agreement between the date of this Agreement and Completion, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted provided that any failure by the affirmative vote Sellers to obtain the approval of all Shareholders to amend the Shareholders’ Agreement shall not constitute a majority material breach for the purposes of the outstanding shares of ART Common Stock and NRLP Units entitled to votethis clause 5.1.2;
(b) The waiting period5.1.3 any and all consents, if anyapprovals and waivers in connection with the execution, applicable to the consummation delivery and performance of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules this Agreement and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
under this Agreement (d) The Form S-4 shall have become effective in accordance with including the provisions acquisition of the Securities ActSale Shares by the Buyer, the issuance of the Convertible Bond, the amendment of the Shareholders’ Agreement in the form of the Amended Shareholders’ Agreement and the amendment and restatement of the memorandum and articles of association of the Company in the form of the Amended Articles) having been obtained and remaining in full force and effect as at Completion, and no stop order suspending such effectiveness shall have consent, approval or clearance having been issued and remain in effectrevoked or modified prior to Completion;
(e) No temporary restraining order5.1.4 there being no litigation, preliminary or permanent injunction regulatory action or other order legal, regulatory, or decree by any court of competent jurisdiction which prevents other administrative proceedings that would reasonably be expected to prohibit, enjoin, challenge, interfere or delay the consummation of any of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted)transactions contemplated under this Agreement;
(f) No action shall have been taken, and 5.1.5 no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Group Company Material Adverse Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of having occurred between the date of this Agreement and Completion; and
5.1.6 the Sellers being, and remaining as, shareholders of the Company and holding in aggregate more than fifty per cent. (50%) of the total issued share capital in the Company at all times between the date of this Agreement and Completion.
5.2 Completion by the Sellers is conditional on the following Conditions being satisfied on terms that are reasonably satisfactory to the Sellers, or waived in accordance with clause 5.5:
5.2.1 each of the Buyer Warranties that are qualified with respect to materiality shall remaining true, accurate and not misleading in all respects, and each of the Buyer Warranties that are not so qualified shall be true, accurate and not misleading in all material respects, in each case as of the Effective Time date hereof and as if made on at Completion, except for those Buyer Warranties that are as of a specific date, which shall be true, accurate and not misleading as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required 5.2.2 any and all consents, approvals and waivers in connection with the transactions contemplated hereby under any loan or credit agreementexecution, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents delivery and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon performance of this Agreement and the consummation of the transactions contemplated herebyunder this Agreement (including the acquisition of the Sale Shares by the Buyer, the issuance of the Consideration Shares and the purchase of Convertible Bond by the Buyer) having been obtained and remaining in full force and effect as at Completion, and no such consent, approval or clearance having been revoked or modified prior to Completion;
(c) NRLP shall have received 5.2.3 there being no litigation, regulatory action or other legal, regulatory or other administrative proceedings that would reasonably be expected to prohibit, enjoin, challenge, interfere or delay the letter consummation of BDO Xxxxxxx, LLP referred to in Section 7.8 hereofany of the transactions contemplated under this Agreement; and
5.2.4 no Buyer Material Adverse Effect having occurred between the date of this Agreement and Completion.
5.3 Each Warrantor shall use its reasonable endeavours to achieve satisfaction of each of the Conditions set out in clause 5.1 and undertakings set out in clause 13.1 as soon as possible after the date of this Agreement and in any event not later than the Completion Date. The Buyer shall use its reasonable endeavours to achieve satisfaction of each of the Conditions set out in clause 5.2 as soon as possible after the date of this Agreement and in any event not later than the Completion Date.
5.4 If, at any time, any of the parties becomes aware of a fact or circumstance that might prevent a Condition being satisfied by the Longstop Date, it shall immediately inform the Buyer (din the case of any Seller becoming aware of such fact or circumstance) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially or the Sellers (in the case of the Buyer becoming aware of such fact or circumstance).
5.5 At any time on or before the Completion Date, the Buyer may waive any Condition set out in clauses 5.1 or undertakings set out in clause 13.1 by Notice to the effect Sellers on any terms it decides, and the Sellers may waive any Condition set out in clause 5.2 by Notice to the Buyer on any terms he decides.
5.6 If the Warrantors fail to satisfy, or procure the satisfaction of, any Condition set out in clauses 5.1 or 13.1 or the Buyer fails to satisfy, or procure the satisfaction of, any Condition set out in clause 5.2 (each a “CP Defaulting Party”), in each case by 5.00 p.m. on the Longstop Date, and the Buyer (if any Warrantor is a CP Defaulting Party) or the Sellers (if the Buyer is a CP Defaulting Party) does not waive such Condition, the CP Defaulting Party shall be entitled to remedy such failure and achieve the satisfaction of the relevant Condition within twenty (20) Business Days after the Longstop Date (the “Cure Period”). If, following expiry of the Cure Period, the relevant Condition remains unsatisfied and the Buyer (for any Condition set out in clause 5.1 or 13.1) or the Sellers (for any Condition set out in clause 5.2) has not waived such Condition before the expiry of the Cure Period, this Agreement shall automatically terminate with immediate effect, and the Company shall indemnify the Buyer (if any Warrantor is the CP Defaulting Party) or the Buyer shall indemnify the Company (if the Buyer is the CP Defaulting Party) (the Buyer or the Company (as applicable) who is being indemnified shall be a “CP Non-defaulting Party”) for a breach of the obligations of the Buyer or the Warrantors respectively under clause 5.3, and keep the CP Non-defaulting Party indemnified, on demand against all external advisor fees and any other fees directly incurred by the CP Non-defaulting Party relating to the transactions contemplated by the Transaction Documents (including the negotiation, preparation, execution and performance by it of this Agreement and of each other Transaction Document), up to the Reimbursement Cap.
5.7 If this Agreement is terminated pursuant to clause 5.6, each party’s further rights and obligations cease immediately on termination, but termination does not affect a party’s accrued rights and obligations as at the date of termination or its rights and obligations arising as a result of termination, provided that the NRLP Merger remedies set forth in clause 5.6 shall be treated the CP Non-defaulting Party’s sole and exclusive remedy for federal income tax purposes any claim made by CP Non-defaulting Party against the CP Defaulting Party for the termination of this Agreement pursuant to clause 5.6 (unless the termination of this Agreement is as part a result of a transaction that satisfies the requirements of Section 351 any fraud or wilful misconduct of the CodeCP Defaulting Party).
Appears in 1 contract
Samples: Agreement for Sale and Purchase of Shares (Prenetics Global LTD)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- Mutual Conditions
5.1 The respective obligations of each party Silvermex and Genco to effect complete the Mergers shall be transactions contemplated herein are subject to the fulfillment of the following conditions at or prior to before the Effective Time of the following conditionsor such other time as is specified below:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby Interim Order shall have been approved granted in form and adopted by substance satisfactory to the affirmative vote of parties hereto, acting reasonably, and shall not have been set aside or modified in a majority of manner unacceptable to the outstanding shares of ART Common Stock and NRLP Units entitled to voteparties hereto, acting reasonably, on appeal or otherwise;
(b) The waiting periodthe Arrangement and, if anyrequired, applicable all other material transactions contemplated herein or necessary to complete the consummation of the Mergers under the HSR Act shall have expired Arrangement, with or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable lawwithout amendment, shall have been approved at the transactions contemplated Silvermex Meeting by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 shall have become effective Silvermex Shareholders in accordance with the provisions of the Securities ActBCBCA, the Interim Order and no stop order suspending such effectiveness the requirements of the TSXV and any other applicable regulatory authority;
(c) the Arrangement and, if required, all other material transactions contemplated herein or necessary to complete the Arrangement, with or without amendment, shall have been issued approved at the Genco Meeting by the Genco Shareholders in accordance with the provisions of the BCBCA and remain the requirements of the TSX and any other applicable regulatory authority;
(d) the Final Order shall have been granted in effectform and substance satisfactory to the parties hereto, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to such parties, acting reasonably, on appeal or otherwise;
(e) No temporary restraining orderall filings made with the Registrar in connection with the Arrangement shall be in form and substance satisfactory to the parties hereto, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted)acting reasonably;
(f) No action there shall not be in force any Law, ruling, order or decree, and there shall not have been taken, and no statute, rule any action taken under any Law or regulation shall have been enacted, by any state Governmental Entity or Federal government other regulatory authority, that makes it illegal or governmental agency which would prevent otherwise directly or indirectly restrains, enjoins or prohibits the consummation of the Mergers Arrangement in accordance with the terms hereof or impose material conditions with respect thereto; andresults or could reasonably be expected to result in a judgment, order, decree or assessment of damages, directly or indirectly, relating to the Arrangement which has, or could reasonably be expected to have, a Material Adverse Change or Effect on Silvermex or Genco;
(g) The shares of Newco Common Stock required to be issued hereunder the TSX shall have been conditionally approved for the listing on the New York Stock Exchangethereon, subject to official notice of issuance, of the Genco Common Shares to be issued pursuant to the Arrangement (including the Genco Common Shares which are issuable in substitution of the Arcana Property Shares and the San Xxxxxxx Property Shares as well as those issuable upon the exercise of the Silvermex Options and the Silvermex Warrants), and the TSXV shall have, if required, accepted notice for filing of all transactions of Silvermex contemplated herein or necessary to complete the Arrangement, subject only to compliance with the usual requirements of the TSXV, as applicable;
(i) all consents, waivers, permits, exemptions, orders and approvals of, and any registrations and filings with, any Governmental Entity and the expiry of any waiting periods, in connection with, or required to permit, the completion of the Arrangement, and (ii) all third person and other consents, waivers, permits, exemptions, orders, approvals, agreements and amendments and modifications to agreements, indentures or arrangements (other than as contemplated in the Silvermex Disclosure Letter or the Genco Disclosure Letter), the failure of which to obtain or the non-expiry of which would, or could reasonably be expected to have, a Material Adverse Change or Effect on Silvermex or Genco or materially impede the completion of the Arrangement, shall have been obtained or received on terms that are reasonably satisfactory to each party hereto;
(i) the Genco Common Shares to be issued pursuant to the Arrangement will be exempt from registration requirements of the 1933 Act pursuant to Section 3(a)(10) thereof and the Genco Common Shares to be distributed pursuant to the Arrangement will not be subject to resale restrictions under the 1933 Act (other than as may be prescribed by Rule 144 or Rule 145 under the 1933 Act);
(j) the Genco Common Shares to be issued pursuant to the Arrangement will be exempt from the prospectus requirements of applicable Canadian securities laws and will not be subject to a statutory hold period other than any hold period applicable to control persons; and
(k) this Agreement shall not have been terminated pursuant to Part 7 hereof. The foregoing conditions are for the mutual benefit of the parties hereto and may be waived by mutual consent of Genco and Silvermex in writing at any time. If any of such conditions shall not be complied with or waived as aforesaid on or before the Completion Deadline or, if earlier, the date required for the performance thereof, then, subject to Section 5.4 hereof, either party hereto may terminate this Agreement by written notice to the others of them in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by such rescinding party hereto.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- 5.2 The obligation of NRLP Silvermex to effect complete the NRLP Merger shall be transactions contemplated herein is subject to the fulfillment at or prior to the Effective Time of the following additional conditionsconditions at or before the Effective Date or such other time as is specified below:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained made by Genco in this Agreement which are qualified by the expression “Material Adverse Change or Effect” shall be true and correct as of the Merger Agreements Effective Date as if made on and as of such date (except to the extent that such representations and warranties speak as of an earlier date, in which event such representations and warranties shall be true and correct as of such earlier date), and all other representations and warranties made by Genco in this Agreement shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time Date as if made on and as of such date (except to the extent that such representations and warranties speak as of an earlier date, except as contemplated or permitted by this Agreement in which event such representations and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval warranties shall be required true and correct as of such earlier date), in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrumenteither case, except those for which failure to obtain such consents where any failures or breaches of representations and approvals warranties would not, either individually or in the aggregate, in the reasonable judgment of Silvermex, have a Material Adverse Change or Effect on ART Genco, and Genco shall have provided to Silvermex a certificate of two officers thereof certifying such accuracy or upon lack of Material Adverse Change or Effect as at the consummation Effective Date. No representation or warranty made by Genco hereunder shall be deemed not to be true and correct if the facts or circumstances which make such representation or warranty untrue or incorrect are disclosed or referred to in the Genco Disclosure Letter, or provided for or stated to be exceptions under this Agreement;
(b) from the date of this Agreement to the Effective Date, there shall not have occurred, and Genco or any of the transactions contemplated herebyGenco Material Subsidiaries shall not have incurred or suffered, any one or more changes, effects, events, occurrences or states of facts that, either individually or in the aggregate, have, or could reasonably be expected to have, a Material Adverse Change or Effect on Genco (excluding any change, effect, event, occurrence or state of facts that is specifically referred to in the Genco Disclosure Letter);
(c) NRLP Genco shall have received complied in all material respects with its covenants herein and Genco shall have provided to Silvermex a certificate of two officers thereof certifying that, as of the letter of BDO XxxxxxxEffective Date, LLP referred to in Section 7.8 hereofGenco has so complied with its covenants herein; and
(d) NRLP and Newco the Genco Board shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially adopted all necessary resolutions and all other necessary corporate action shall have been taken by Genco to permit the consummation of the Arrangement. The foregoing conditions are for the benefit of Silvermex and may be waived, in whole or in part, by Silvermex in writing at any time. If any of such conditions shall not be complied with or waived by Silvermex on or before the Completion Deadline or, if earlier, the date required for the performance thereof, then, subject to Section 5.4 hereof, Silvermex may terminate this Agreement by written notice to Genco in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by Silvermex.
5.3 The obligation of Genco to complete the transactions contemplated herein is subject to the effect that fulfillment of the NRLP Merger following additional conditions at or before the Effective Date or such other time as is specified below:
(a) the representations and warranties made by Silvermex in this Agreement which are qualified by the expression “Material Adverse Change or Effect” shall be treated true and correct as of the Effective Date as if made on and as of such date (except to the extent that such representations and warranties speak as of an earlier date, in which event such representations and warranties shall be true and correct as of such earlier date), and all other representations and warranties made by Silvermex in this Agreement which are not so qualified shall be true and correct in all material respects as of the Effective Date as if made on and as of such date (except to the extent that such representations and warranties speak as of an earlier date, in which event such representations and warranties shall be true and correct as of such earlier date), in either case, except where any failures or breaches of representations and warranties would not, either individually or in the aggregate, in the reasonable judgment of Genco, have a Material Adverse Change or Effect on Silvermex, and Silvermex shall have provided to Genco a certificate of two officers thereof certifying such accuracy or lack of Material Adverse Change or Effect on the Effective Date. No representation or warranty made by Silvermex hereunder shall be deemed not to be true and correct if the facts or circumstances which make such representation or warranty untrue or incorrect are disclosed or referred to in the Silvermex Disclosure Letter, or provided for federal income tax purposes or stated to be exceptions under this Agreement;
(b) from the date of this Agreement to the Effective Date, there shall not have occurred, and Silvermex or any of the Silvermex Material Subsidiaries shall not have incurred or suffered, any one or more changes, effects, events, occurrences or states of facts that, either individually or in the aggregate, have, or could reasonably be expected to have, a Material Adverse Change or Effect on Silvermex (excluding any change, effect, event, occurrence or state of facts that is specifically referred to in the Silvermex Disclosure Letter);
(c) Silvermex shall have complied in all material respects with its covenants herein and Silvermex shall have provided to Genco a certificate of two officers thereof certifying that, as part of the Effective Date, Silvermex has so complied with its covenants herein; and
(d) the Silvermex Board shall have adopted all necessary resolutions and all other necessary corporate action shall have been taken by Silvermex to permit the consummation of the Arrangement. The foregoing conditions are for the benefit of Genco and may be waived, in whole or in part, by Xxxxx in writing at any time. If any of such conditions shall not be complied with or waived by Genco on or before the Completion Deadline or, if earlier, the date required for the performance thereof, then, subject to §5.4 hereof, Genco may terminate this Agreement by written notice to Silvermex in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a transaction that satisfies the requirements breach of Section 351 of the Codethis Agreement by Genco.
Appears in 1 contract
Conditions. Section 8.1 3.1 Closing Conditions to Each Party's Obligation to Effect for the Mergers. ----------------------------------------------------------- Benefit of the Purchaser
3.1.1 The respective obligations of each party the Purchaser to effect complete the Mergers transactions contemplated in this Agreement shall be subject to the fulfillment satisfaction of, or compliance with, at or prior to before the Effective Time of Closing, each of the following conditions:conditions precedent (each of which is hereby acknowledged to be inserted for the exclusive benefit of the Purchaser and may be waived by the Purchaser in writing in whole or in part):
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote each of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained Xxxxxx Resources made in or pursuant to this Agreement and Agreement, the Merger Agreements Schedules or in any Closing Document delivered pursuant hereto shall be true and correct in all material respects on (other than those representations and warranties that are qualified by materiality which shall be true and correct in all respects) as of at the date of this Agreement and on as of the Time of Closing as though such representations and warranties were made at and as of the Effective Time of Closing (except insofar as if made on such representations and warranties are stated to be given as of a particular date or for a particular period and relate solely to such date, except as contemplated date or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effectperiod);
(b) ART all obligations, agreements and covenants of Xxxxxx Resources to be completed prior to Closing shall have obtained been performed or completed by Xxxxxx Resources in all material respects, as applicable;
(c) Xxxxxx Resources shall have delivered to the consent or approval Purchaser a certificate from a senior officer of each person whose consent or approval Xxxxxx Resources certifying that the conditions of Subsection 3.1.1(a) and Subsection 3.1.1(b) have been satisfied;
(d) the Purchaser shall be have received at the Closing an officer’s certificate of Xxxxxx Resources, dated as of the Closing Date, in form and substance reasonably satisfactory to the Purchaser, as to: (a) its constating documents; (b) a resolution of the board of directors of Xxxxxx Resources authorizing the execution and delivery of this Agreement, the NSR Royalty Agreement, the Security Document and any other Closing Document required in connection with for the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation completion of the transactions contemplated hereby; and (c) incumbency and signatures of the signatories of Xxxxxx Resources executing this Agreement or any of the Closing Documents;
(e) all consents or approvals from, or notifications to any Person required to create and sell the NSR Royalty and to create and grant the Security Interest, will have been obtained or given on or before the Time of Closing in form satisfactory to the Purchaser, acting reasonably;
(f) the Purchaser shall have received evidence of any material amendments to the Debt Documents or waiver of covenants provided in connection with the Debt Documents;
(g) no order or judgment of any court or any Governmental Body shall have been issued or made and no legal or regulatory requirement shall remain to be satisfied, in either case which has the effect of making void, unlawful or otherwise prohibiting the creation and sale of the NSR Royalty as contemplated herein (an “Unsatisfied Judgment”);
(h) all Governmental Approvals with respect to approval by any Governmental Body of the creation and sale of the NSR Royalty and the creation and grant of the Security Interest shall have been obtained;
(i) no action or proceeding will be pending or threatened by any person to enjoin, restrict or prohibit the purchase and sale of the NSR Royalty or the creation and grant of the Security Interest contemplated hereby;
(j) no change, effect, event, development, occurrence or state of facts or combination thereof that is, or would be, material and adverse to the NSR Royalty, the Security Interest, the Property or the Project, shall have occurred since the date of this Agreement;
(k) Xxxxxx Resources shall deliver to the Purchaser an opinion of its counsel dated the Closing Date in form acceptable and satisfactory to both counsel for Xxxxxx Resources and counsel for the Purchaser, each acting reasonably, with respect to
(i) the incorporation and extra-provincial existence of Xxxxxx Resources under its jurisdiction of incorporation and the Business Corporations Act (Saskatchewan), as applicable,
(ii) the corporate power, authority and capacity of Xxxxxx Resources to own its assets and carry on its business as presently carried on by it and to enter into this Agreement, the NSR Royalty Agreement and the Security Document,
(iii) the enforceability of this Agreement, the NSR Royalty Agreement and the Security Document,
(iv) the execution and delivery of this Agreement, the NSR Royalty Agreement and the Security Document not requiring any Governmental Approval or conflicting with or resulting in a breach or violation of the constating documents of Xxxxxx Resources,
(v) the Security Interest granted by Xxxxxx Resources being in accordance with the terms of this Agreement and in compliance with Applicable Law,
(vi) the validity of the Security Interest, and
(vii) the ownership and good standing of the mineral dispositions comprising the Property, the foregoing being subject to reasonable assumptions and qualifications;
(l) the arrangements shall have been made to the satisfaction of the Purchaser, acting reasonably, for registration of the NSR Royalty Agreement and the Security Document in those public registers and offices in which, in the Purchaser’s and its counsel’s opinion, registration is necessary or of advantage to preserve, protect and perfect the same;
(m) the senior secured lenders of Xxxxxx Resources shall have provided confirmation to the Purchaser that they will not take any action to invalidate, disclaim or terminate the NSR Royalty Agreement if an event of default occurs, or an insolvency, bankruptcy or similar event occurs;
(n) Xxxxxx Resources shall have duly authorized, executed and delivered this Agreement, the NSR Royalty Agreement, the Security Document and any other Closing Document requiring same, all in form and substance satisfactory to Purchaser acting reasonably;
(o) Xxxxxx Resources shall have delivered one or more CDs, DVDs or hard drives containing the contents of the Data Room Information; and
(p) Xxxxxx Resources shall deliver to the Purchaser such other documents as the Purchaser may reasonably require pursuant to the transactions contemplated hereunder.
3.1.2 If any condition in Section 3.1.1 shall not have been satisfied in all material respects at or prior to the Time of Closing, the Purchaser may at its sole option either:
(a) rescind this Agreement by written notice to Xxxxxx Resources and, in such event, the Parties shall be released from all obligations, except that Xxxxxx Resources will still be obligated to pay to the Purchaser the fees and expenses contemplated in Section 8.3; or
(b) waive compliance with any such term, covenant or condition in whole or in part on such terms as may be agreed upon with Xxxxxx Resources without prejudice to any of its rights of rescission in the event of non-performance of any other term, covenant or condition in whole or in part.
3.2 Closing Conditions for the Benefit of Xxxxxx Resources
3.2.1 The obligations of Xxxxxx Resources to complete the transactions contemplated in this Agreement shall be subject to the satisfaction of, or compliance with, at or before the Time of Closing, each of the following conditions precedent (each of which is hereby acknowledged to be inserted for the exclusive benefit of Xxxxxx Resources and may be waived by Xxxxxx Resources in writing in whole or in part):
(a) each of the representations and warranties of the Purchaser made in or pursuant to this Agreement, the Schedules or in any Closing Document delivered pursuant hereto shall be true and correct in all material respects (other than those representations and warranties that are qualified by materiality which shall be true and correct in all respects) as at the date of this Agreement and as of the Time of Closing as though such representations and warranties were made at and as of the Time of Closing (except insofar as such representations and warranties are stated to be given as of a particular date or for a particular period and relate solely to such date or period);
(b) all obligations, agreements and covenants of the Purchaser to be completed prior to Closing shall have been performed or completed by the Purchaser in all material respects, as applicable;
(c) NRLP the Purchaser shall have delivered to Xxxxxx Resources a certificate from a senior officer of the Purchaser certifying that the conditions of Subsection 3.2.1(a) and Subsection 3.2.1(b) have been satisfied;
(d) the Cash Purchase Price shall have been paid to Xxxxxx Resources by the Purchaser;
(e) Xxxxxx Resources shall have received at the letter Closing from the Purchaser an officer’s certificate of BDO Xxxxxxxthe Purchaser, LLP referred dated as of the Closing Date, in form and substance reasonably satisfactory to in Section 7.8 hereofXxxxxx Resources, as to: (a) its constating documents; (b) a resolution of the board of directors of the Purchaser authorizing the execution and delivery of this Agreement, the NSR Royalty Agreement, the Security Document and any other Closing Document required for the completion of the transactions contemplated hereby; and (c) incumbency and signatures of the signatories of the Purchaser executing this Agreement or any of the Closing Documents; and
(df) NRLP and Newco the Purchaser shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially deliver to Xxxxxx Resources all other documents as Xxxxxx Resources may reasonably require pursuant to the effect that transactions contemplated hereunder.
3.2.2 If any condition in Section 3.2.1 shall not have been satisfied in all material respects at or prior to the NRLP Merger Time of Closing, Xxxxxx Resources may at its option, either:
(a) rescind this Agreement by written notice to the Purchaser and, in such event, the Parties shall be treated for federal income tax purposes released from all obligations hereunder, except that Xxxxxx Resources will still be obligated to pay to the Purchaser the fees and expenses contemplated in Section 8.3; or
(b) waive compliance with any such term, covenant or condition in whole or in part on such terms as part may be agreed upon with the Purchaser without prejudice to any of a transaction that satisfies its rights of rescission in the requirements event of Section 351 non-performance of the Codeany other term, covenant or condition in whole or in part.
Appears in 1 contract
Samples: Royalty Purchase Agreement
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- (a) The respective obligations of each party Party to effect the Mergers Exchange shall be subject to the fulfillment satisfaction at or prior to the Effective Time Closing of the following conditions:
(ai) This Agreement, The Exchange and the Merger Agreements and the transactions contemplated hereby and thereby Agreement shall have been approved and adopted by the affirmative vote holders of a majority of the outstanding shares of ART Common Class A Stock at the Stockholders Meeting, and NRLP Units entitled to votethe Merger shall have been consummated;
(bii) The waiting period, if any, periods (and any extensions thereof) applicable to the consummation of the Mergers Reorganization under the HSR Act shall have expired been terminated or been terminatedshall have expired;
(ciii) The parties hereto FCC Approval shall have been obtained;
(iv) All filings required to be made prior to the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulationsClosing by any Party or any of its respective subsidiaries with, and such Governmental Entitiesall consents, approvals and authorizations required to be obtained prior to the extent required Closing by applicable lawany Party or any of its respective subsidiaries from, shall have approved any Governmental Entity in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement; hereby shall have been made or obtained, except where the failure to obtain any such approval consents, approvals and authorizations would not, individually or in the aggregate, have not cause a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated herebyEffect;
(d) The Form S-4 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;
(ev) No temporary restraining statute, rule, regulation, executive order, preliminary or permanent decree, ruling, injunction or other order (whether temporary, preliminary or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(fpermanent) No action shall have been taken, and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any state Governmental Entity and no other legal restraint or Federal government prohibition shall be in effect which prohibits, restrains or governmental agency which would prevent enjoins the consummation of the Mergers Exchange or impose material conditions with respect theretothe Merger; and
(gvi) 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 shares obligations of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP Consenting Noteholders to effect the NRLP Merger Exchange shall be subject to the fulfillment satisfaction at or prior to the Effective Time Closing of the following additional conditions:
(ai) ART shall have performed in all material respects its agreements The representations and warranties of Holdings, Wireless and Investco contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects (without regard to any materiality or Material Adverse Effect qualifier contained therein), on and as of the date of this Agreement and on and as of the Effective Time Closing as if made on at and as of such date, except as contemplated or permitted by this Agreement where the failure of such representations and the Merger Agreements, warranties to be true and NRLP shall have received a certificate of the President or of an Executive Vice President of ART correct would not reasonably be expected to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would nothave, individually or in the aggregate, a Material Adverse Effect;
(ii) Each of Holdings, Wireless and Investco shall have performed or complied in all material respects with all obligations required by this Agreement to be performed or complied with by it at or prior to the Closing;
(iii) Each of X.X. Xxxxxx Capital, L.P. and Sixty Wall Street Fund, 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 change, circumstance or event which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;Effect.
(c) NRLP The obligations of Holdings, Wireless and Investco 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 the Consenting Noteholders contained in this Agreement shall be true and correct (without regard to any 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 in the aggregate, a material adverse effect on the ability of the Consenting Noteholders to consummate the transactions contemplated by this Agreement;
(ii) The Consenting Noteholders shall have received performed or complied in all material respects with all obligations required by this Agreement to be performed or complied with by it at or prior to the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereofClosing; and
(diii) NRLP and Newco Supplemental indentures including the Amendments shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to been validly executed and delivered by Wireless and the effect that trustee under the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies indentures governing the requirements of Section 351 of the CodeNotes.
Appears in 1 contract
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations 2.1 Completion of each party to effect the Mergers shall be this Agreement is subject to the fulfillment at Conditions being satisfied or prior to waived in accordance with the Effective Time terms of this Agreement.
2.2 If any of the Conditions (except for the condition stipulated in section 7 of Schedule 2) have not been satisfied or waived by the Long-stop Date and the Buyer notifies the Seller in writing on or after the Long-stop Date that it wishes to terminate this Agreement, then this Agreement (except for the provisions set out in Clause 2.3) shall terminate with effect from the date of the relevant notification and the Seller shall indemnify the Buyer and keep it indemnified against all claims, damages, losses, costs (including legal and other professional costs reasonably incurred) and liabilities whatsoever, which may arise directly out of or be occasioned or suffered in consequence of, or in connection with, the above termination.
2.3 The following conditionsprovisions shall continue to have effect, notwithstanding termination of this Agreement in accordance with Clause 2.2:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to voteClause 1;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminatedClause 2.2 and Clause 2.3;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;Clause 7
(d) Clause 12;
(e) Clause 13;
(f) Clause 14;
(g) Clause 15;
(h) Clause 21;
(i) Clause 22; and
(j) Clause 23.
2.4 The Form S-4 Seller shall have become effective procure that all the Conditions are satisfied as soon as practicable after the date of this Agreement and in any event no later than the Long-stop Date.
2.5 The Buyer and the Seller (including the Bareboat Charterer in accordance with the provisions of Clause 25) shall cooperate fully in all actions necessary to procure the Securities Actsatisfaction of the Conditions, and no stop order suspending such effectiveness shall have been issued and remain in effect;
(e) No temporary restraining orderthe Pre-Completion Undertakings including, preliminary but not limited to, the provision of all information reasonably necessary to make any notification or permanent injunction filing or other order or decree as requested by any court of competent jurisdiction which prevents relevant authority, obtain the consummation required Consents as provided in Clause 25, keeping the other Party informed of the Mergers progress of any notification or imposes material conditions with respect thereto shall have been issued filing and remain in effect (each party agreeing providing such assistance as may reasonably be required.
2.6 The Buyer may, to use its reasonable efforts such extent as it thinks fit and is legally entitled to have do so, waive any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers Conditions (or impose material make them conditions with respect thereto; and
(gsubsequent as the case may be) The shares in relevant paragraphs of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuanceSchedule 2.
Section 8.2 Conditions to Obligation of NRLP to Effect 2.7 Pending Completion or the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date earlier termination of this Agreement and on and as of in accordance with its terms, the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP Seller shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection comply with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the CodePre-Completion Undertakings.
Appears in 1 contract
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers shall be subject to the fulfillment at or prior to the Effective Time As of the following conditionstime of the purchase of the Securities by the Purchasers:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote each of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 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;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained set forth in this Agreement Section 6 hereof and the Merger Agreements other Operative Documents shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such datetime, except as contemplated or permitted by this Agreement and to the Merger Agreements, and NRLP shall have received a certificate of extent the President or of same relate expressly to an Executive Vice President of ART to that effectearlier date;
(b) ART the Company shall be in compliance with all of the terms and conditions hereof, and no Default or Event of Default shall have obtained the consent or approval of each person whose consent or approval shall occurred and be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated herebycontinuing hereunder;
(c) NRLP the Company shall have simultaneously sold to the Purchasers the Securities to be purchased by the Purchasers hereunder at the Closing;
(d) the Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws;
(e) the purchase and sale of the Securities shall not violate any order, judgment or decree of any court or other authority or any provision of law or regulation applicable to the Agent or any Purchaser (including, without limitation, Regulation U of the Board of Governors of the Federal Reserve System, the Securities Act and the Securities Exchange Act) as then in effect;
(f) the Company, the Senior Bank Agent and the Senior Lenders shall have entered into the Senior Credit Agreement and all conditions to its effectiveness shall have been satisfied and no default or event of default shall have occurred and be continuing thereunder;
(g) the Purchasers shall have received approval from each of their respective investment committees to purchase the letter Securities and enter into this Agreement;
(h) since December 31, 2003 there shall have been no change in the financial condition, operating results, assets, operations, business prospects, results, assets, operations, business prospects, employee relations or customer or supplier relations of BDO Xxxxxxx, LLP referred to in Section 7.8 hereofthe Company or any of its Subsidiaries which would have a Material Adverse Effect; and
(di) NRLP Agent and Newco the other Purchasers shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to completed a due diligence review of the effect that the NRLP Merger Company and its Subsidiaries and their respective records, financial condition and operations, which due diligence review shall be treated for federal income tax purposes as part of a transaction that satisfies satisfactory to Agent and the requirements of Section 351 of the Codeother Purchasers in their sole discretion.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Morton Industrial Group Inc)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations Notwithstanding any other provision of each party to effect the Mergers this Amendment, this Amendment shall be subject not become effective unless and until:
a. It has been executed and delivered by all parties to the fulfillment at or prior to the Effective Time of the following conditions:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities Credit Agreement as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated amended hereby;
(d) b. The Form S-4 shall have become effective in accordance with the provisions of the Securities ActFirst Amendment to Amended and Restated Security Agreement, and no stop order suspending such effectiveness shall have been issued and remain in effect;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and dated as of the date of this hereof (the “Security Agreement Amendment”), shall have been executed and on delivered by the Company, in form and substance satisfactory to the Lender;
c. The Lender shall have received certificates as of a recent date of the Effective Time as if made on and as good standing (or comparable standing) of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP Company under the laws of its jurisdiction of organization;
d. The Lender shall have received a certificate of an appropriate officer of the President or Company certifying as to the incumbency and genuineness of an Executive Vice President the signature of ART to each officer of the Company executing this Amendment and the Security Agreement Amendment and certifying that effectattached thereto is a true, correct and complete copy of (i) the articles of incorporation of the Company and all amendments thereto, certified as of a recent date by the Wisconsin Department of Financial Institutions, (ii) the bylaws of the Company all amendments thereto, (iii) the resolutions duly adopted by the board of directors of the Company authorizing the borrowings contemplated hereunder and the execution, delivery and performance of this Amendment and the Security Agreement Amendment;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP e. The Lender shall have received (i) searches of UCC filings in the letter jurisdiction of BDO Xxxxxxxincorporation of the Company, LLP referred to copies of the financing statements on file in Section 7.8 hereofsuch jurisdiction and evidence that no Liens exist other than Permitted Liens and (ii) tax lien and judgment searches; and
(d) NRLP and Newco f. The Company shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially delivered such other corporate documents as Lender or its counsel may reasonably request, in form and substance satisfactory to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the CodeLender.
Appears in 1 contract
Conditions. Section 8.1 Conditions 2.1 This offer to Each Party's Obligation to Effect arrange, manage the Mergers. ----------------------------------------------------------- The respective obligations primary syndication of each party to effect and underwrite the Mergers shall be Facility is made on the terms of the Mandate Documents and is subject to the fulfillment at or prior to the Effective Time satisfaction of the following conditions:
(a) This Agreementcompliance by Air Asia Berhad (“AAB”), BBAM LP (“BBAM”) and Fly with all the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote terms of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to voteeach Mandate Document in all material respects;
(b) The waiting period, if any, applicable to the consummation each of the Mergers under representations and warranties made by AAB and Fly in connection with the HSR Act shall have expired or been terminatedtransaction contemplated in the Mandate Documents (the “Proposed Transaction”) (including, but not limited to, those set out in paragraph 7 (Information)) being correct in all material respects;
(c) The parties hereto shall have made preparation, execution and delivery of the requisite filings Facility Documents incorporating the terms set forth in the Term Sheet and customary terms not inconsistent with all Governmental Entities as shall be required pursuant to applicable laws, rules the Mandate Documents and regulations, and such Governmental Entities, reasonably satisfactory to the extent required Underwriters by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain no later than 90 days after 28 February 2018 or any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART later date agreed between Fly and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation each of the transactions contemplated herebyUnderwriters (the “Facility Execution Date”);
(d) The Form S-4 shall have become effective in accordance with the provisions completion by each of the Securities ActUnderwriters of client identification procedures (including, if necessary, identification of directors and no stop order suspending such effectiveness shall have been issued major shareholders of Fly, the Borrower and remain HoldCo (as defined in effectthe Term Sheet) and each of the HoldCo’s subsidiaries (each, an “Obligor”) as well as each Lessee (as defined in the Term Sheet)) in compliance with applicable money laundering rules by the Facility Execution Date;
(e) No temporary restraining orderthe Sale & Purchase Agreement entered into between (among others) Asia Aviation Capital Limited (“AACL”), preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation AAB and Fly, and all conditions precedent pursuant thereto (and no provision of the Mergers Sale & Purchase Agreement shall be waived, amended, supplemented or imposes otherwise modified (including any consents thereunder) in a manner material conditions with respect thereto shall have been issued and remain in effect (adverse to the Underwriters without the consent of each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted)Underwriter) as of the Facility Execution Date;
(f) No action shall have been takensatisfactory completion of KYC due diligence and adoption of entities relevant to the transaction required by the Underwriters to their satisfaction pursuant to customary compliance procedures, including without limitation any relevant Anti Financial Crime compliance and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation sanctions screening approvals as of the Mergers Facility Execution Date;
(g) it not being illegal or impose material conditions unlawful in any applicable jurisdiction of an Underwriter for such Underwriter to (or for any Affiliate of any such Underwriter if that Underwriter were to) perform any of its obligations as contemplated by the Mandate Documents or fund, provide or maintain its participation under the Facility;
(h) AACL, AAB, Fly and all other Obligors obtaining all necessary regulatory and corporate governance approvals in connection with respect theretothe Facility and the related acquisition transaction from any relevant authorities or entities in any relevant jurisdictions by the Facility Execution Date; and
(gi) The shares simultaneously with the execution of Newco Common Stock required to be issued hereunder the Facility Documents, a wholly owned subsidiary of Incline B Aviation Limited Partnership or one of its affiliates, shall have been approved for listing on enter into a loan facility agreement with the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject Underwriters related to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part acquisition of a transaction that satisfies the requirements of Section 351 of the Codeseparate 35 aircraft portfolio from XXXX.
Appears in 1 contract
Samples: Commitment Letter (Fly Leasing LTD)
Conditions. Section 8.1 Conditions 2.1 Before Clause 4 of this Letter shall take effect, the Borrower shall deliver or cause to Each Party's Obligation be delivered to Effect or to the Mergers. ----------------------------------------------------------- The respective obligations order of the Agent the following documents and evidence:-
2.1.1 A certificate from a duly authorised officer of each party to effect of the Mergers shall be subject Security Parties (i) confirming that none of the documents delivered to the fulfillment at Agent pursuant to clauses 3.1.1 and 3.1.4 of the Original Agreement have been amended or prior modified in any way since the date of their delivery to the Effective Time Agent, or copies, certified by a duly authorised officer of the following conditions:Security Party in question as true, complete, accurate and neither amended nor revoked, of any which have been amended or modified and (ii) setting out the names of the directors, officers and (other than the Guarantor) the shareholders of that Security Party.
2.1.2 A copy, certified by a director or the secretary of the Security Party in question as true, complete and accurate and neither amended nor revoked, of a resolution of the directors and a resolution of the shareholders of each Security Party (aother than the Guarantor) This Agreement(together, where appropriate, with signed waivers of notice of any directors’ or shareholders’ meetings) approving, and authorising or ratifying the execution of, this Letter, the Merger Agreements Confirmation Deed, the Confirmation Letter and the transactions contemplated hereby Mortgage Addenda.
2.1.3 The notarially attested and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
legalised (b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, in either case to the extent required by applicable law) power of attorney of each of the Security Parties under which this Letter, shall have approved the transactions contemplated Confirmation Deed, the Confirmation Letter and the Mortgage Addenda is to be executed by this Agreement; except where that Security Party.
2.1.4 Evidence of payment to the failure Agent of an amendment fee for the account of each of the Banks which has consented to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and Request of nought point two five per cent (0.25%) of the amount of their respective SubsidiariesProportionate Shares.
2.1.5 This Letter (including the Acknowledgement below), taken as a wholethe Confirmation Deed, or upon the consummation Confirmation Letter and the Mortgage Addenda duly executed by all parties thereto together with evidence of the transactions contemplated herebyregistration of the Mortgage Addenda at the Panamanian and Liberian Ship Registries, as appropriate.
2.1.6 Evidence that SNSA’s Liquidity Line has been extended and (i) is available to members of the SO Group until 30 November 2004 and (ii) is fully subordinated to the Facility upon terms and conditions acceptable to the Agent.
2.1.7 Evidence that the Additional Subordinated Debt has been contributed by SNSA into the Guarantor.
2.1.8 Such legal opinions as the Agent on behalf of the Banks shall require.
2.2 All documents and evidence delivered to the Agent pursuant to this Clause shall:-
2.2.1 be in form and substance acceptable to the Agent;
(d) The Form S-4 shall have become effective 2.2.2 be accompanied, if required by the Agent, by translations into the English language, certified in accordance with a manner acceptable to the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effectAgent;
(e) No temporary restraining order2.2.3 if required by the Agent, preliminary be certified, notarised, legalised or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain attested in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject a manner acceptable to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the CodeAgent.
Appears in 1 contract
Samples: Secured Multi Currency Revolving Loan Facility Agreement (Stolt Offshore S A)
Conditions. Section 8.1 Conditions Your obligations to Each Party's Obligation solicit offers to Effect purchase Notes as Agent of the Mergers. ----------------------------------------------------------- The respective Company, your obligations to purchase Notes as principal pursuant to any Terms Agreement or otherwise and the obligations of each party any other purchaser to effect the Mergers shall purchase Notes will be subject to the fulfillment at accuracy of the representations and warranties on the part of the Company and Texaco herein, to the accuracy of the statements of the Company's or Texaco's officers made in each certificate furnished pursuant to the provisions hereof prior to or concurrently with any such solicitation or purchase, to the Effective Time performance and observance by the Company or Texaco of all covenants and agreements herein contained on its part to be performed and observed, in each case, at the time of such solicitation or purchase and to the following conditions:
additional conditions precedent: (a) This Agreement, No stop order suspending the Merger Agreements effectiveness of the Registration Statement shall be in effect and the transactions contemplated hereby and thereby no proceedings for that purpose shall have been approved and adopted instituted or, to your knowledge or the knowledge of the Company or Texaco shall be contemplated by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
Commission; (b) The waiting period, if any, applicable to the consummation of the Mergers under the HSR Act There shall have expired or been terminated;
no material adverse change (c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entities, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or not in the aggregate, have a Material Adverse Effect on ART ordinary course of business) in the financial condition of Texaco and NRLP, and their respective Subsidiariesits consolidated subsidiaries, taken as a whole, from that set forth in or upon contemplated by the consummation of the transactions contemplated hereby;
Prospectus; (dc) The Form S-4 shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness following documents shall have been issued and remain in effect;
(e) No temporary restraining orderdelivered to you at the office of Xxxxx Xxxx & Xxxxxxxx, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunctionyour counsel, order or decree lifted);
(f) No action shall have been takennot later than 4:00 p.m., and no statuteNew York time, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchangedate hereof, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect or at such other time or place you and the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect Company may agree upon in writing, but in no event later than the NRLP Merger shall be subject to the fulfillment at or day prior to the Effective Time date on which you begin soliciting offers to purchase Notes or the first date on which the Company accepts any offer by you to purchase Notes as principal (the "Commencement Date"): (i) An opinion of Xxxx X. Xxxxxxx, Esq., (or such other counsel as the following additional conditions:
(aCompany or Texaco may designate and as may be approved by you) ART shall have performed in all material respects its agreements contained in this Agreement as counsel for the Company and Texaco, dated the Merger Agreements required to be performed on or prior Commencement Date, as to the Effective Time matters and in substantially the representations and warranties of ART contained form set forth in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereofExhibit D hereto; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.6
Appears in 1 contract
Samples: Distribution Agreement (Texaco Inc)
Conditions. Section 8.1 Conditions 4.1 The sale and purchase of the Sale Shares is conditional upon:
4.1.1 the Purchaser notifying the Vendor's Solicitors in writing that it is satisfied in reliance on the Warranties and upon inspection and investigation as to Each Party's Obligation :-
4.1.1.1 the financial, contractual, taxation and trading positions of the Company;
4.1.1.2 the title of the Company to Effect its assets; and
4.1.1.3 the Mergers. ----------------------------------------------------------- The respective obligations results of each party its searches and the replies to effect the Mergers shall be subject its enquiries in regard to the fulfillment Properties;
4.1.2 all necessary consents being granted by third parties (including governmental or official authorities) and no statute, regulation or decision which would prohibit, restrict or materially delay the sale and purchase of the Sale Shares or the operation of the Company after Completion having been proposed, enacted or taken by any governmental or official authority;
4.1.3 all necessary consents being granted by any landlord or other reversioner to any Lease where the sale and purchase of the Sale Shares would breach or be deemed to breach such Lease; and
4.1.4 Chan Kai Xxxxx xxxy executing an employment agreement with Asia Online (Hong Kong) Ltd. in the approved terms.
4.2 The Purchaser may waive all or any of such conditions at any time by notice in writing to the Vendors' Solicitors.
4.3 The Vendors shall use their best endeavours to procure the fulfilment of the Conditions on or before the Completion Date.
4.4 In the event that any of the Conditions shall not have been fulfilled (or waived pursuant to Clause 4.2) prior to the Effective Time Completion Date then the Purchaser shall not be bound to proceed with the purchase of the following conditions:Sale Shares and this Agreement shall cease to be of any effect except Clauses 1, 11, 12, 13, 14.1 to 14.5, 15 and 16 which shall remain in force and save in respect of claims arising out of any antecedent breach of this Agreement.
(a) This Agreement4.5 In the event that the Purchaser shall give notice in writing of satisfaction of, or shall waive, the Merger Agreements conditions contained in Clause 4.1.1, Clause 4.1.2, Clause 4.1.3 and Clause 4.1.4 such notice or waiver shall not imply that the transactions contemplated hereby Purchaser is not relying on the Warranties but rather only that it is prepared, in reliance upon the Warranties and thereby shall have been approved and adopted by the affirmative vote of a majority of the outstanding shares of ART Common Stock and NRLP Units entitled to vote;
(b) The waiting periodsuch comfort, if any, applicable to the consummation of the Mergers under the HSR Act shall have expired or been terminated;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to applicable laws, rules and regulations, and such Governmental Entitiesit has taken from its investigations, to the extent required by applicable law, shall have approved the transactions contemplated by this Agreement; except where the failure to obtain any such approval would not, individually or in the aggregate, have a Material Adverse Effect on ART and NRLP, and their respective Subsidiaries, taken as a whole, or upon the consummation of the transactions contemplated hereby;
(d) The Form S-4 shall have become effective in accordance proceed with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by any court of competent jurisdiction which prevents the consummation of the Mergers or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or Federal government or governmental agency which would prevent the consummation of the Mergers or impose material conditions with respect thereto; and
(g) The shares of Newco Common Stock required to be issued hereunder shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuancetransaction.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Merger. ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) ART shall have performed in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and as of the date of this Agreement and on and as of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger Agreements, and NRLP shall have received a certificate of the President or of an Executive Vice President of ART to that effect;
(b) ART shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on ART or upon the consummation of the transactions contemplated hereby;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred to in Section 7.8 hereof; and
(d) NRLP and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to the effect that the NRLP Merger shall be treated for federal income tax purposes as part of a transaction that satisfies the requirements of Section 351 of the Code.
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Samples: Agreement for the Sale and Purchase of Shares (Asia Online LTD)
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Mergers. ----------------------------------------------------------- The respective obligations of each party to effect the Mergers 4.1 Completion shall be subject to the fulfillment at or prior to the Effective Time each of the following conditionsconditions (the “Conditions”) being satisfied or waived, to the extent permitted under the applicable Laws and in accordance with Clause 4.10, by the Longstop Date:
(a) This Agreement, the Merger Agreements and the transactions contemplated hereby and thereby shall have been approved and adopted by the affirmative vote of a majority completion of the outstanding shares of ART Common Stock and NRLP Units entitled to voteArdutch Carve-Out in accordance with the Ardutch Carve-Out Principles;
(b) The waiting period, if any, applicable to the consummation completion of the Mergers under Whirlpool Carve-Out in accordance with the HSR Act shall have expired or been terminatedWhirlpool Carve-Out Principles;
(c) The parties hereto shall have made the requisite filings with all Governmental Entities as shall be required pursuant to receipt of the following regulatory approvals (each a “Regulatory Condition”):
(i) merger control approvals (including, where necessary, approvals of Whirlpool’ acquisition of a minority shareholding in the Buyer) having been obtained and any applicable lawswaiting periods (including any extensions thereof) under any applicable Antitrust Law having expired, rules lapsed or been terminated and regulationsno Authority having enacted, issued, promulgated, enforced or entered any decision which is in effect and such Governmental Entities, to the extent required by applicable law, shall have approved prohibits or makes illegal the transactions contemplated by this Agreement, in each case as it relates to merger control notifications, filings and/or submissions made to:
(A) the Competition Commission or the Competition Tribunal of South Africa
(B) the European Commission;
(C) the UK Competition and Markets Authority;
(D) the German Federal Cartel Office;
(E) the Austrian Federal Competition Authority;
(F) the Swiss Competition Commission; except where and
(G) the failure to obtain Chinese State Administration for Market Regulation; and
(ii) foreign direct investment (“FDI”) approvals having been obtained including non-jurisdiction decisions and any such approval would notapplicable waiting periods (including any extensions thereof) under any applicable FDI law having expired, individually lapsed or been terminated and no Authority having enacted, issued, promulgated, enforced or entered any decision which is in the aggregate, have a Material Adverse Effect on ART effect and NRLP, and their respective Subsidiaries, taken as a whole, prohibits or upon the consummation of makes illegal the transactions contemplated herebyby this Agreement, in each case as it relates to FDI notifications, filings and/or submissions made to the Italian Prime Minister Office (Presidenza del Xxxxxxxxx dei Ministri) under: (i) Law Decree (decreto xxxxx) No. 21 of 15 March 2012, as converted into law by Law No. 56 of 11 May 2012, and as subsequently amended and supplemented; (ii) Law Decree (decreto xxxxx) no. 105 of 21 September 2019, as converted into law by Law no. 133 of 18 November 2019, and as subsequently amended and supplemented; (iii) Law Decree (decreto xxxxx) no. 23 of April 8, 2020, as converted into law by Law no. 40 of June 5, 2020, and as subsequently amended and supplemented; and (iv) Law Decree (decreto xxxxx) no. 21 of 21 March 2022, as converted into law by Law no. 51 of May 20, 2022, and as subsequently amended and supplemented (the “Golden Power Law”);
(d) The Form S-4 shall have become effective in accordance with if the provisions MENA SPA has been entered into on or before the MENA SPA Date, the satisfaction or waiver of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effectMENA Carve-Out Condition;
(e) No temporary restraining order, preliminary or permanent injunction or other order or decree by Xxxxxxx not having discovered prior to Completion anything which would render any court of competent jurisdiction which prevents the consummation of the Mergers Whirlpool Fundamental Warranties untrue or imposes material conditions with respect thereto shall have been issued and remain in effect (each party agreeing inaccurate as at immediately prior to use its reasonable efforts to have any such injunction, order or decree lifted);Completion; and
(f) No action Whirlpool not having discovered prior to Completion anything which would render any of the Ardutch Fundamental Warranties untrue or inaccurate as at immediately prior to Completion.
4.2 Unless otherwise agreed in writing between Whirlpool and Ardutch, no party shall have been taken(and the Ardutch Guarantor shall procure that no member of the Ardutch Group shall and the Whirlpool Guarantor shall procure that no member of the Whirlpool Group shall), whether alone or acting in concert with others, acquire, offer to acquire or enter into a definitive agreement that, if carried into effect, would result in the acquisition of a business the acquisition of which might reasonably be expected to materially prejudice or delay the satisfaction of any of the Regulatory Conditions.
4.3 Each of Ardutch and Whirlpool shall cooperate in the preparation of regulatory filings, notifications and submissions so as to satisfy the Regulatory Conditions. Ardutch and Whirlpool shall further cooperate and use reasonable best endeavours to procure that the Regulatory Conditions are satisfied as soon as possible and in any event no later than the Longstop Date, and no statuteshall not, rule or regulation and shall have been enactedprocure that none of its Representatives shall, by take any state or Federal government or governmental agency which would prevent action (in addition to the consummation actions referred to in Clause 4.2 above) that could reasonably be expected to adversely affect the satisfaction of the Mergers or impose material conditions with respect thereto; and
Regulatory Conditions (g) The shares of Newco Common Stock required including approaching any Authority to be issued hereunder shall have been approved for listing engage on the New York Stock Exchange, subject to official notice Transaction without the explicit written consent of issuance.
Section 8.2 Conditions to Obligation of NRLP to Effect the NRLP Mergerother Seller). ---------------------------------------------------------- The obligation of NRLP to effect the NRLP Merger shall be subject Without prejudice to the fulfillment at or prior to the Effective Time generality of the following additional conditionsforegoing:
(a) ART Ardutch and Whirlpool, as necessary and at their own respective costs, shall have performed respectively make all filings, submissions or notifications with respect to each of the Regulatory Conditions set forth in all material respects its agreements contained in this Agreement and the Merger Agreements required to be performed on or prior to the Effective Time and the representations and warranties of ART contained in this Agreement and the Merger Agreements shall be true and correct in all material respects on and Clause 4.1(c) as of soon as practicable after the date of this Agreement Agreement; and
(b) Ardutch and on and as Whirlpool shall use reasonable best endeavours to provide promptly all information which is reasonably requested or required of it by any Authority in connection with the satisfaction of the Effective Time as if made on and as of such date, except as contemplated or permitted by this Agreement and the Merger AgreementsRegulatory Conditions, and NRLP shall have received a certificate in any event, in accordance with any applicable time limits.
4.4 For the purposes of satisfying each of the President Regulatory Conditions, each of Whirlpool and Ardutch shall, in each case, subject to compliance with applicable Antitrust Laws and redacting information that may be competitively sensitive (save in respect of outside counsel to outside counsel communications which shall be on an unredacted basis):
(a) promptly notify the other party of any material communication (whether written or oral) from any Authority and/or any relevant publications, notices or releases issued by any Authority (including publications, notices or releases disclosing that Ardutch or Whirlpool has submitted any filings, notifications or other written communication), in each case, in connection with the satisfaction of an Executive Vice President of ART to that effectthe Regulatory Conditions;
(b) ART give the other party reasonable notice of all substantive meetings and/or telephone calls with any Authority in connection with the satisfaction of the Regulatory Conditions and a reasonable opportunity to participate in them. In the absence of the explicit written consent of the other party, neither Ardutch or Whirlpool shall have obtained be entitled to participate in substantive meetings and/or telephone calls with any Authority in connection with the consent satisfaction of the Regulatory Conditions without the presence of the other party (save to the extent that such Authority expressly requests that the other party should not participate in such meetings or telephone calls);
(c) provide the other party with drafts of all material written communications intended to be sent to any Authority in connection with the satisfaction of the Regulatory Conditions, give the other party a reasonable opportunity to comment on them, take into account the reasonable comments of the other party thereon, not send such communications without the prior written approval of the other party (not to be unreasonably withheld or delayed) and provide each person whose consent or approval shall other with final copies of any such communications;
(d) provide the other party with such information, documents and assistance as may reasonably be required in connection with the transactions contemplated hereby under satisfaction of the Regulatory Conditions in a timely manner, following a request by that party for such information; and
(e) make appropriate representatives available for any loan meetings and calls with any Authority as are reasonably necessary in connection with the satisfaction of the Regulatory Conditions.
4.5 Each of Ardutch and Whirlpool shall promptly (and in any event prior to Completion) inform the other and the Buyer if it discovers anything prior to Completion which would render or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure be reasonably likely to obtain such consents and approvals would not, individually or render:
(a) in the aggregatecase of Ardutch, have a Material Adverse Effect on ART or upon the consummation any of the transactions contemplated herebyArdutch Fundamental Warranties untrue or inaccurate as at immediately prior to Completion; and
(b) in the case of Whirlpool, any of the Whirlpool Fundamental Warranties untrue or inaccurate as at immediately prior to Completion.
4.6 Each of Ardutch and Whirlpool shall, to the extent permitted by Law, promptly notify the other in writing each time it becomes aware that:
(a) any of the Primary Conditions have been satisfied;
(b) a Primary Condition will not be satisfied by the Longstop Date;
(c) NRLP shall have received the letter of BDO Xxxxxxx, LLP referred a Condition in Clause 4.1(e) or 4.1(f) will not be satisfied as at immediately prior to in Section 7.8 hereofCompletion; andor
(d) NRLP an event, circumstance or condition has occurred which is reasonably likely to prevent a Primary Condition from being satisfied by the Longstop Date, and Newco shall have received an opinion from Xxxxx Xxxxxxx & Xxxx LLP substantially to at the effect that same time (or promptly thereafter) provide reasonable evidence of the NRLP Merger shall be treated for federal income tax purposes as part same.
4.7 If notice is given in accordance with Clause 4.6(b) in respect of a transaction Regulatory Condition, then either Ardutch or Whirlpool may, by notice in writing to Whirlpool (in the case of an extension by Ardutch) or Ardutch (in the case of an extension by Whirlpool), extend the Longstop Date by six months (the Longstop Date as extended being the “Revised Longstop Date”), provided that satisfies such party certifies in such notice that it reasonably believes that: (a) in the requirements case of Section 351 Whirlpool, the Conditions set out in Clauses 4.1(b) to 4.1(d) (inclusive); and (b) in the case of Ardutch, the Conditions set out in Clauses 4.1(a) and 4.1(c), will be satisfied by the Revised Longstop Date. Unless otherwise agreed in writing between Xxxxxxx and Whirlpool, the Longstop Date may not be postponed more than once.
4.8 If notice is given in accordance with Clause 4.6(b) in respect of a Condition and:
(a) the Longstop Date is not extended in accordance with Clause 4.7; or
(b) the Longstop Date is extended in accordance with Clause 4.7 and any of the CodePrimary Conditions remains outstanding at the Revised Longstop Date, either Seller may give notice to each other party in writing to terminate this Agreement, following which Clause 23 shall apply.
4.9 If notice is given in accordance with Clause 4.6(c) in respect of:
(a) the Condition in Clause 4.1(e), Ardutch may give notice to each other party in writing to terminate this Agreement, following which Clause 23 shall apply; and/or
(b) the Condition in Clause 4.1(f), Whirlpool may give notice to each other party in writing to terminate this Agreement, following which Clause 23 shall apply.
4.10 Whirlpool may, to such extent as it thinks fit and where it is legally entitled to do so, waive the Conditions set out in Clause 4.1(a) and/or Clause 4.1(f), in whole or in part by written notice to Xxxxxxx. Ardutch may, to such extent as it thinks fit and where it is legally entitled to do so, waive the Conditions set out in Clause 4.1(b) and/or Clause 4.1(e), in whole or in part by written notice to Whirlpool. Xxxxxxx and Whirlpool may mutually agree in writing to waive in whole or in part, the Condition set out in Clause 4.1(c)(i)(G). No other Condition is capable of being waived.
Appears in 1 contract
