Termination by Seller. Subject to any limitations imposed by Law, Seller may terminate this Agreement for any of the following grounds. (1) Buyer’s failure to comply with any provision of this Agreement, which provision is both reasonable and of material significance to the relationship under this Agreement; (2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement; (3) The occurrence of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, including, without limitation, the following events: (i) Buyer’s fraud or criminal misconduct relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets; (ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer; (iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets; (iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise; (v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled; (vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time; (vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations; (viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets; (ix) Buyer’s conviction of any felony involving moral turpitude; (x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and (xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21. (4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located; (5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility. (6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 2 contracts
Samples: Retailer Product Sales Agreement (Bowlin Travel Centers Inc), Retailer Product Sales Agreement (Bowlin Travel Centers Inc)
Termination by Seller. Subject This Agreement may be terminated by Sellers and the sale and transfer of the Stations or any Radio Group for which a Closing has not occurred abandoned, if:
(a) Sellers are not then in material default hereunder, upon written notice to any limitations imposed by Law, Seller may terminate this Agreement for Buyer if on the date that would otherwise be the Final Closing Date any of the following grounds.
conditions precedent to the obligations of Sellers set forth in Sections 7.2(a), 7.2(b) and 7.2(e) of this Agreement has not been satisfied or waived in writing by Sellers (1) whether or not occurring as the result of Buyer’s failure to comply with 's material breach of any provision of this Agreement, which provision is both reasonable and of material significance to the relationship under this Agreement);
(2b) Buyer’s failure to exert good faith efforts to carry out Buyer shall default in the provisions performance of its obligations under this AgreementAgreement in any material respect and such default is not cured within thirty (30) days after notice thereof;
(3c) The occurrence Sellers are not then in material default hereunder and Final Closing has not occurred within one (1) calendar year from the date hereof and failure of an event which Final Closing to have occurred is relevant due to the relationship under this Agreement and as a result of which failure to receive any regulatory approval required for Final Closing, including, but not limited to, expiration or termination of this Agreement is reasonablethe Xxxx-Xxxxx-Xxxxxx waiting period, any FCC Consents (including, without limitation, such facts as are disclosed on Schedule 4.6 hereto), and the following events:failure of such consent, expiration or termination to be granted is the result of facts relating to Buyer or any Affiliate of Buyer; or
(id) Buyer’s fraud or criminal misconduct relevant Sellers are not then in material default hereunder if Closing as to the operation Stations or any Radio Group has not occurred within twenty four (24) months from the date hereof due to the failure to receive any regulatory approval required for Final Closing, including, but not limited to, the expiration or termination of Buyer’s businessthe Xxxx-Xxxxx-Xxxxxx waiting period of any FCC Consent, Buyer’s Marketing Premisesand the failure of such consent, expiration, or Buyer’s Outlets;
(ii) Buyer’s declaration termination to be granted is the result of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21Sellers.
(4e) A determination is made by Seller Final Closing has not occurred with respect to all of the Stations or any Radio Group within eighteen (18) months from the date hereof, if Sellers are not then in good faith material default hereunder, and such Closing has not occurred for any reason other than as provided in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facilitySection 9.2(d).
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Sinclair Broadcast Group Inc), Asset Purchase Agreement (Sinclair Broadcast Group Inc)
Termination by Seller. Subject This Agreement may be terminated at any time prior to any limitations imposed the Closing by LawSeller, by written notice to Buyer:
(a) prior to the commencement of the Confirmation Hearing[,] on May 15, 2006, if (i) as of the date of such termination, Seller may terminate this Agreement for any is not in breach of Section 5.10, (ii) the following grounds.
(1) Buyer’s failure Board authorizes Seller, subject to comply complying with any provision the terms of this Agreement, which provision to enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal and Seller notifies Buyer in writing that it intends to enter into such an agreement, attaching the most current version of such agreement (and all related agreements) to such notice (provided, that if such intention changes Seller shall promptly notify Buyer of that fact) and (iii) Buyer does not make, within five Business Days of receipt of Seller’s written notification of its intention to enter into a binding agreement for a Superior Proposal, an offer which, thereafter, the Board determines, in good faith after consultation with its financial advisors, is both reasonable and of material significance at least as favorable to the relationship under this Agreement;
stakeholders of Seller as is the Superior Proposal (2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, includingtaking into account, without limitation, financial terms of any termination fee that may be payable pursuant to Section 8.5(b) and the following events:likelihood of consummation);
(b) if there has been a breach of any representation, warranty, covenant or agreement made by Buyer in this Agreement such that an executive officer of Buyer would be unable to deliver the closing certificate to Seller regarding Buyer’s representations and warranties and Buyer’s performance of its obligations as required pursuant to Section 6.3(a) and Section 6.3(b), respectively, and such breach or condition is not curable or, if curable, is not cured within 60 days after written notice thereof is given by Seller to Buyer; provided, however, that if, with respect to any such breach or condition that cannot reasonably be expected to be cured within 60 days, Buyer is diligently proceeding to cure such breach, this Agreement may not be terminated pursuant to this Section 8.3(b) for so long as (i) Buyer’s fraud or criminal misconduct relevant such breach is reasonably likely to be cured prior to the operation date on which this Agreement would otherwise be terminated under Section 8.2 and (ii) Buyer continues such efforts to cure; provided, further, that the right to terminate this Agreement pursuant to this Section 8.3(b) shall not be available to Seller if as of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outletssuch time it is a Proximate Cause Party;
(c) prior to the commencement of the Confirmation Hearing[,] on May 15, 2006, if (i) as of the date of such termination, Seller is not in breach of Section 5.10, (ii) Buyer’s declaration the Board authorizes Seller to file a Superior Alternate Plan with the Bankruptcy Court and Seller notifies Buyer in writing that it intends to file such Superior Alternate Plan, attaching the most current version of bankruptcy or judicial determination such Superior Alternate Plan (and all related agreements and supporting documentation) to such notice (provided, that if such intention changes Seller shall promptly notify Buyer of insolvency of Buyer;
that fact) and (iii) Buyer’s continuing severe physical or mental disability if Buyer is an individualdoes not make, or if Buyer is a partnership or corporation, the disability within ten Business Days of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss receipt of Seller’s right written notification of its intention to grant file a Superior Alternate Plan, an offer which, thereafter, the right Board determines, in good faith after consultation with its financial advisors, is at least as favorable to use the Identificationsstakeholders of Seller as is the Superior Alternate Plan (taking into account, which are without limitation, financial terms of any termination fee that may be payable pursuant to Section 8.5(b) and the subject likelihood of the franchise;consummation); or
(vd) Buyerif (i) at any time after the conclusion of voting on the Plan as established by the Bankruptcy Court, Seller’s failure stakeholders who are entitled to pay vote on the Plan vote in sufficient number and amount against the Plan such that the Plan is not otherwise capable of being confirmed by the Bankruptcy Court or (ii) subject to compliance by Seller with the first sentence of Section 5.13(g), at any time after the expiration of 150 days following the entry of an order, judgment or ruling by a court of competent jurisdiction in a timely manner when due all sums to which Seller is legally entitled;
the Reorganization Case denying entry of (vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive daysor vacating), or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply that is inconsistent with the Laws relevant to entry of, a Confirmation Order satisfying the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance condition set forth in Article 21.
(4) A determination is made by Section 6.2(g), the Bankruptcy Court shall not have thereafter entered a Confirmation Order satisfying the condition set forth in Section 6.2(g); provided, however, that Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining may only terminate this Agreement pursuant to this facilitySection 8.3(d)(ii) if at such time it would not reasonably be expected that a Confirmation Order satisfying the condition set forth in Section 6.2(g) shall be entered prior to the Outside Date.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Time Warner Inc), Asset Purchase Agreement (Adelphia Communications Corp)
Termination by Seller. Subject (i) This Agreement may be terminated by Seller at any time prior to the Closing, if (A) Purchaser shall have breached or failed to comply, in any limitations imposed material respect, with any of Purchaser’s covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Purchaser contained in this Agreement, in the case of clauses (A) and (B), such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.02 to be satisfied, and Seller shall have given Purchaser a reasonable opportunity to cure (if capable of being cured prior to the Closing) any such failure or inaccuracy to so comply before the Closing, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) within thirty (30) days (or by Lawthe Outside Date, if sooner) after receiving notice thereof from Seller; provided, that Seller may terminate this Agreement for pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Seller is not in material breach of any of the following grounds.
(1) Buyer’s failure to comply with any provision of this Agreementits representations, which provision is both reasonable and of material significance to the relationship under this Agreement;
(2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under warranties, covenants or agreements contained in this Agreement and as a result (y) Seller has satisfied those conditions set forth in Section 7.01 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which termination is capable of this Agreement is reasonable, including, without limitation, being satisfied at the following events:
(i) Buyer’s fraud or criminal misconduct relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;Closing).
(ii) BuyerThis Agreement may be terminated by Seller if the Closing shall not have occurred on or before the Outside Date; provided, that (A) Seller may terminate this Agreement pursuant to this Section 9.01(c)(ii) only if at the time of termination (x) Seller is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Seller has satisfied those conditions set forth in Section 7.01 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Seller may not terminate this Agreement pursuant to this Section 9.01(c)(ii) during the pendency of any Legal Proceeding brought by Purchaser for specific performance of Seller’s declaration of bankruptcy or judicial determination of insolvency of Buyer;obligation to consummate the Closing pursuant to Section 10.15.
(iii) Buyer’s continuing severe physical This Agreement may be terminated by Seller if (i) all of the conditions set forth in Section 7.01 shall have been satisfied or mental disability waived (other than those conditions that by their nature are to be satisfied by actions taken at the Closing, provided that each of which is capable of being satisfied at the Closing if Buyer the Closing were to occur at such time), (ii) Purchaser shall not have received the proceeds of the Financing, (iii) Purchaser shall have failed to consummate the Closing by the date the Closing is an individualrequired to have occurred pursuant to Section 3.01 and, or if Buyer in the event such failure occurs more than five (5) Business Days prior to the Outside Date, such failure shall not have been cured within five (5) Business Days after written notice thereof has been given by Seller to Purchaser, (iv) at the time of termination, Seller is a partnership or corporation, the disability not in material breach of any individual who representations, warranties, covenants or agreements contained in this Agreement, and (v) Seller is currently ready, willing and able to consummate the Closing; provided, that Seller may not rely upon this Section 9.01(c)(iii) to terminate this Agreement if Seller’s material breach of any representations, warranties, covenants or agreements contained in “control” this Agreement, even if subsequently cured, directly caused Purchaser’s failure to receive the proceeds of the ownership interest (“control” being Financing within the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;time period specified by this Section 9.01(c)(iii).
(iv) Loss of This Agreement may be terminated by Seller at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Seller may not rely upon this Section 9.01(c)(iv) to terminate this Agreement if Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, fulfill any obligation or such lesser period which condition under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant this Agreement materially contributed to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facilitysuch Closing Legal Impediment.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Assertio Therapeutics, Inc), Asset Purchase Agreement (Collegium Pharmaceutical, Inc)
Termination by Seller. Subject This Agreement may be terminated by Seller by written notice of Seller to Buyer:
(a) at any limitations imposed by Lawtime prior to the Closing, if (i) Seller may terminate this Agreement for has not breached any of the terms of Section 6.2, (ii) Seller has complied with the terms of the second paragraph of Section 6.2(c) and, following grounds.
(1) Buyer’s failure the five Business Day period contemplated thereby and after consideration of any change to comply this Agreement proposed in negotiations with any provision Buyer and during such period, the Seller Board authorizes Seller, subject to complying with the terms of this Agreement, which provision is both reasonable to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal and (iii) Seller, simultaneous with such termination, pays to Buyer in immediately available funds any fees required to be paid pursuant to Section 8.5; provided, that Seller agrees that it will not enter into the binding agreement referred to in clause (ii) above until at least the fourth Business Day after it has provided the notice to Buyer required by Section 6.2(c), if any, and in the event of any material significance change to the relationship under this Agreementterms of such Superior Proposal, Seller will, in each case, have delivered to Buyer an additional notice as required by Section 6.2(c) and the notice period will have recommenced;
(2b) Buyer’s failure to exert good faith efforts to carry out if there has been a breach of any representation, warranty, covenant or agreement made by Buyer in this Agreement, or any such representation and warranty will have become untrue after the provisions date of this Agreement;
(3, such that Section 7.3(a) The occurrence or 7.3(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within the earlier of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, including, without limitation, the following events:
(i) Buyer’s fraud or criminal misconduct relevant 10 calendar days after written notice thereof is given by Seller to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
Buyer and (ii) Buyer’s declaration the date that is three Business Days prior to the Termination Date; or
(c) if (i) all of bankruptcy or judicial determination of insolvency of Buyer;
the conditions set forth in Section 7.1 and Section 7.2 have been satisfied (other than those conditions that by their nature are to be satisfied by actions taken at the Closing), (ii) Buyer fails to complete the Closing within two Business Days following the date the Closing would have occurred pursuant to this Agreement, and (iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently Seller has irrevocably confirmed in “control” writing that (A) all of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance conditions set forth in Article 21.
Section 7.1 and Section 7.3 have been satisfied (4other than those conditions that by their nature are to be satisfied by actions taken at the Closing) A determination is made or will be waived by Seller and (B) it is prepared to consummate the Closing (it being understood and agreed that neither Buyer nor Seller may terminate the Agreement during the two Business Day period referred to in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
clause (5ii) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facilityabove).
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Alliqua BioMedical, Inc.)
Termination by Seller. Subject This Agreement may be terminated at any time prior to any limitations imposed the Closing by LawSeller, by written notice to Buyer:
(a) prior to the commencement of the Confirmation Hearing[,] of the Plan on May 15, 2006, if (i) as of the date of such termination, Seller may terminate this Agreement for any is not in breach of Section 5.8, (ii) the following grounds.
(1) Buyer’s failure Board authorizes Seller, subject to comply complying with any provision the terms of this Agreement, which provision to enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal and Seller notifies Buyer in writing that it intends to enter into such an agreement, attaching the most current version of such agreement (and all related agreements) to such notice (provided, that if such intention changes Seller shall promptly notify Buyer of that fact) and (iii) Buyer does not make, within five Business Days of receipt of Seller’s written notification of its intention to enter into a binding agreement for a Superior Proposal, an offer which, thereafter, the Board determines, in good faith after consultation with its financial advisors, is both reasonable and of material significance at least as favorable to the relationship under this Agreement;
stakeholders of Seller as is the Superior Proposal (2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, includingtaking into account, without limitation, financial terms of any termination fee that may be payable pursuant to Section 8.5(b) and the following events:likelihood of consummation);
(b) if there has been a breach of any representation, warranty, covenant or agreement made by Buyer in this Agreement such that an executive officer of Buyer would be unable to deliver the closing certificate to Seller regarding Buyer’s representations and warranties and Buyer’s performance of its obligations as required pursuant to Section 6.3(a) and Section 6.3(b), respectively, and such breach or condition is not curable or, if curable, is not cured within 60 days after written notice thereof is given by Seller to Buyer; provided, however, that if, with respect to any such breach or condition that cannot reasonably be expected to be cured within 60 days, Buyer is diligently proceeding to cure such breach, this Agreement may not be terminated pursuant to this Section 8.3(b)for so long as (i) Buyer’s fraud or criminal misconduct relevant such breach is reasonably likely to be cured prior to the operation date on which this Agreement would otherwise be terminated under Section 8.2 and (ii) Buyer continues such efforts to cure; provided, further, that the right to terminate this Agreement pursuant to this Section 8.3(b) shall not be available to Seller if as of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outletssuch time it is a Proximate Cause Party;
(c) prior to the commencement of the Confirmation Hearing[,] of the Plan on May 15, 2006, if (i) as of the date of such termination, Seller is not in breach of Section 5.8, (ii) Buyer’s declaration the Board authorizes Seller to file a Superior Alternate Plan with the Bankruptcy Court and Seller notifies Buyer in writing that it intends to file such Superior Alternate Plan, attaching the most current version of bankruptcy or judicial determination such Superior Alternate Plan (and all related agreements and supporting documentation) to such notice (provided, that if such intention changes Seller shall promptly notify Buyer of insolvency of Buyer;
that fact) and (iii) Buyer’s continuing severe physical or mental disability if Buyer is an individualdoes not make, or if Buyer is a partnership or corporation, the disability within ten Business Days of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss receipt of Seller’s right written notification of its intention to grant file a Superior Alternate Plan, an offer which, thereafter, the right Board determines, in good faith after consultation with its financial advisors, is at least as favorable to use the Identificationsstakeholders of Seller as is the Superior Alternate Plan (taking into account, which are without limitation, financial terms of any termination fee that may be payable pursuant to Section 8.5(b) and the subject likelihood of the franchise;consummation); or
(vd) Buyerif (i) at any time after the conclusion of voting on the Plan as established by the Bankruptcy Court, Seller’s failure stakeholders who are entitled to pay vote on the Plan vote in sufficient number and amount against the Plan such that the Plan is not otherwise capable of being confirmed by the Bankruptcy Court or (ii) subject to compliance by Seller with the first sentence of Section 5.11(g), at any time after the expiration of 150 days following the entry of an order, judgment or ruling by a court of competent jurisdiction in a timely manner when due all sums to which Seller is legally entitled;
the Reorganization Case denying entry of (vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive daysor vacating, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply that is inconsistent with the Laws relevant to entry of, a Confirmation Order satisfying the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance condition set forth in Article 21.
(4) A determination is made by Section 6.2(g), the Bankruptcy Court shall not have thereafter entered a Confirmation Order satisfying the condition set forth in Section 6.2(g); provided, however, that Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining may only terminate this Agreement pursuant to this facilitySection 8.3(d)(ii) if at such time it would not reasonably be expected that a Confirmation Order satisfying the condition set forth in Section 6.2(g) shall be entered prior to the Outside Date.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Adelphia Communications Corp), Asset Purchase Agreement (Comcast Corp)
Termination by Seller. Subject to any limitations imposed by Law, Seller may terminate this Agreement for by written notice to Buyer at any of time prior to the following grounds.Closing Date if:
(1a) BuyerSeller notifies Buyer in writing on or prior to the Closing Date that Seller’s failure Board of Directors and/or stockholders have approved and/or recommended a Superior Proposal, and in conjunction therewith Seller pays to comply Buyer in immediately available funds to a bank account designated in writing by Buyer a break-up fee of $225,000 which shall be the sole remedy of Buyer in connection with any provision of this Agreement, which provision is both reasonable and of material significance to the relationship under this Agreementsuch termination;
(2b) Buyer’s a condition to the performance of Seller set forth herein shall not be fulfilled on or before the date specified for the fulfillment thereof, unless such failure is a result of acts or failures to exert good faith efforts to carry out the provisions act of this AgreementSeller;
(3c) The occurrence of an event which is relevant to the relationship a default under this Agreement and as or a result of which termination breach of this Agreement is reasonable, including, without limitation, the following events:
(i) Buyer’s fraud or criminal misconduct relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, a misrepresentation or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability breach of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations warranty or covenant of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or in any instrument delivered by Buyer pursuant hereto shall have occurred, which default, misrepresentation or breach would or would be reasonably expected to cause any of the conditions set forth in Section 7.2 to not be satisfied, unless the same is otherwise allowed curable and is cured by Buyer within twenty (20) days of written notice thereof from Seller; or
(d) any right of Seller to terminate this Agreement shall be effective notwithstanding the PMPA or other applicable Lawfact that Seller’s stockholders have approved the transactions contemplated hereby pursuant to the Voting Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cycle Country Accessories Corp)
Termination by Seller. Subject to any limitations imposed This Agreement may be terminated and the transactions contemplated hereby abandoned by Lawa vote of a majority of the Board of Directors (or by the vote of the Executive Committee of such Board, Seller may terminate if so empowered) of SELLER:
(a) in the event of a material breach by BUYER of this Agreement for that is not cured within thirty (30) days after receipt of notice of such breach from SELLER; or
(b) in the event any of the following groundsconditions precedent specified in Section 5.1 of this Agreement has not been met as of the date required by this Agreement and, if not so met, has not been waived by SELLER; or
(c) in the event any regulatory approval for the consummation of the Acquisition is denied by the applicable regulatory authority or in the event that at any time prior to the Closing Date it shall become reasonably certain to SELLER, with the advice of counsel, that a regulatory approval required for consummation of the Acquisition will not be obtained within the time reasonably necessary to permit the Closing to take place by the Termination Date (hereinafter defined); or
(d) on or after June 30, 2012 or such later date as the parties may mutually agree (the "Termination Date") if the Closing has not then occurred unless the failure to consummate by such date is due to a breach of this Agreement by SELLER;
(e) at the option of SELLER in the event that BUYER enters into an agreement or agreements, or intends to enter into an agreement or agreements, providing for the merger, acquisition, or sale of substantially all of the assets of BUYER or its parent company such as would require prior regulatory approval under the Change in Bank Control Act, as amended, or the Bank Holding Company Act of 1956, as amended, or similar law or regulation.
(1f) Buyer’s failure to comply at the option of SELLER in the event that there is a material adverse change in the financial condition or results of operation of BUYER, or pending or threatened litigation or claims with any provision of this Agreement, which provision is both reasonable and of material significance respect to the relationship under transactions contemplated by this Agreement which, in the opinion of SELLER, may hinder or delay past the Termination Date the ability of the parties to consummate the transactions contemplated by this Agreement;
(2g) Buyer’s failure to exert good faith efforts to carry out at the provisions option of this Agreement;
(3) The occurrence of an SELLER in the event which is relevant that a material consent to the relationship under transactions contemplated by this Agreement from a third party cannot be obtained; provided, however, and as a result of which termination of notwithstanding anything in this Agreement is reasonable, including, without limitation, the following events:
(i) Buyer’s fraud or criminal misconduct relevant to the operation of Buyer’s businesscontrary, Buyer’s Marketing Premisesin the event that SELLER is able to directly or indirectly provide to BUYER at no extra cost to BUYER and at a reasonable cost to SELLER substantially the same benefits as would have been provided to BUYER if such material consent were obtained, or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Sellerthan BUYER’s right to grant terminate the right to use the Identifications, which are the subject of the franchise;Agreement hereunder shall be null and void; or
(vh) Buyer’s failure at the option of SELLER in the event that consents to pay the transactions contemplated by this Agreement from such third parties as SELLER may reasonably deem necessary or appropriate are not available prior to Seller in a timely manner when due all sums the Closing Date without substantial additional cost or expense to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive daysSELLER, or in the event that releases of SELLER by such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, third parties as SELLER may reasonably deem necessary or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant appropriate are not available prior to the operation of Buyer’s business, Buyer’s Marketing Premises, Termination Date without substantial additional cost or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject expense to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21SELLER.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Park National Corp /Oh/)
Termination by Seller. Subject to any limitations imposed This Agreement may be terminated and the transactions contemplated hereby abandoned by Law, Seller may terminate this Agreement for any a vote of a majority of the following grounds.Board of Directors (or by the vote of the Executive Committee of such Board, if so empowered) of SELLER:
(1a) Buyer’s failure to comply with any provision in the event of this Agreement, which provision is both reasonable and of a material significance to the relationship under this Agreement;
(2) Buyer’s failure to exert good faith efforts to carry out the provisions breach by BUYER of this Agreement;
(3b) The occurrence in the event any of an the conditions precedent specified in Section 5.1 of this Agreement (i) has not been met as of the date specified for such condition in this Agreement or if no date is specified, the Closing Date, or (ii) in the reasonable determination of SELLER, is not capable of being met, and in the case of either (i) or (ii), has not been waived by SELLER;
(c) in the event any regulatory approval for the consummation of the Acquisition is denied by any applicable regulatory authority;
(d) on or after the date which is relevant 180 calendar days following the date of this Agreement (the "Termination Date") if the Closing has not then occurred unless the failure to consummate by such date is due to a breach of this Agreement by SELLER;
(e) in the event that there is a material adverse change in the financial condition or results of operation of BUYER, or pending or threatened litigation or claims with respect to the relationship under transactions contemplated by this Agreement which, in the opinion of SELLER, may hinder or delay the ability of the parties to consummate the transactions contemplated by this Agreement; or
(f) in the event that BUYER fails to obtain by October 31, 2011, any required regulatory approval of which it is BUYER’s responsibility to obtain, and in the event of such a termination BUYER shall pay to SELLER the actual costs, fees and expenses incurred by SELLER in connection with this Agreement and as a result of which termination of this Agreement is reasonablethe Acquisition, including, without limitation, the following events:attorneys’ fees, filing costs and out of pocket expenses subject to a maximum payment of $150,000; or
(ig) Buyer’s fraud in the event that SELLER or criminal misconduct relevant any of its affiliates receives from a third party any unsolicited proposal to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” acquire both of the ownership interest (“control” being the authority Offices that SELLER, in its sole discretion, determines to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identificationspursue, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21.
(4) A determination is made by Seller in good faith and in the normal course event of business such a termination (and only in such event), SELLER shall pay to withdraw from marketing BUYER a termination fee of motor fuel through retail outlets in $150,000. The payment obligations of BUYER under Section 9.2(f) and the relevant geographic market area in which Buyer’s Outlets are located;
(5payment obligations of SELLER under Section 9.2(g) Termination by Seller for cause shall survive any termination of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Lawpursuant to such sections.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Ohio Legacy Corp)
Termination by Seller. Subject This Agreement may be terminated by Sellers and the sale and transfer of the Stations or any Radio Group for which a Closing has not occurred abandoned, if:
(a) Sellers are not then in material default hereunder, upon written notice to any limitations imposed by Law, Seller may terminate this Agreement for Buyer if on the date that would otherwise be the Final Closing Date any of the following grounds.
conditions precedent to the obligations of Sellers set forth in Sections 7.2(a), 7.2(b) and 7.2(e) of this Agreement has not been satisfied or waived in writing by Sellers (1) whether or not occurring as the result of Buyer’s failure to comply with 's material breach of any provision of this Agreement, which provision is both reasonable and of material significance to the relationship under this Agreement);
(2b) Buyer’s failure to exert good faith efforts to carry out Buyer shall default in the provisions performance of its obligations under this AgreementAgreement in any material respect and such default is not cured within thirty (30) days after notice thereof;
(3c) The occurrence Sellers are not then in material default hereunder and Final Closing has not occurred within one (1) calendar year from the date hereof and failure of an event which Final Closing to have occurred is relevant due to the relationship under this Agreement and as a result of which failure to receive any regulatory approval required for Final Closing, including, but not limited to, expiration or termination of this Agreement is reasonablethe Hart-Xxxxx-Xxxxxx xxxting period, any FCC Consents (including, without limitation, such facts as are disclosed on Schedule 4.6 hereto), and the following events:failure of such consent, expiration or termination to be granted is the result of facts relating to Buyer or any Affiliate of Buyer; or
(id) Buyer’s fraud or criminal misconduct relevant Sellers are not then in material default hereunder if Closing as to the operation Stations or any Radio Group has not occurred within twenty four (24) months from the date hereof due to the failure to receive any regulatory approval required for Final Closing, including, but not limited to, the expiration or termination of Buyer’s businessthe Hart-Xxxxx-Xxxxxx xxxting period of any FCC Consent, Buyer’s Marketing Premisesand the failure of such consent, expiration, or Buyer’s Outlets;
(ii) Buyer’s declaration termination to be granted is the result of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21Sellers.
(4e) A determination is made by Seller Final Closing has not occurred with respect to all of the Stations or any Radio Group within eighteen (18) months from the date hereof, if Sellers are not then in good faith material default hereunder, and such Closing has not occurred for any reason other than as provided in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facilitySection 9.2(d).
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Samples: Asset Purchase Agreement (Entercom Communications Corp)
Termination by Seller. Subject Seller shall have the right to any limitations imposed by Law, Seller may terminate this Agreement for if (i) Buyer fails to perform or comply with any of its covenants or agreements hereunder in any material respect, or if any of the following grounds.
representations or warranties of Buyer herein fail to be true and correct, which failure (A) would give rise to the failure of a condition in Section 6.3(a) or Section 6.3(b), as applicable, and (B) is not reasonably capable of being cured by Buyer within the earlier of (1) Buyer’s thirty (30) days after receiving written notice from Seller of such failure or (2) one (1) day prior to the End Date, or, if reasonably capable of being cured during such period, is not cured by Buyer within such period; provided, that, Seller shall not be entitled to terminate this Agreement under this Section 8.1(d) if Seller has failed to perform or comply with any provision of this Agreementits covenants or agreements hereunder in any material respect, or if any of the representations or warranties of Seller herein has failed to be true and correct, which provision is both reasonable and of material significance failure (x) would give rise to the relationship under this Agreement;
failure of a condition in Section 6.2(a) or Section 6.2(b) and (2y) has not been cured as of the date such written notice is received by Buyer’s , or (ii) (A) all of the conditions in Section 6.1 and Section 6.2 have been satisfied (except for any condition that by its terms is to be satisfied at the Closing, but subject to the satisfaction and waiver of such condition by Buyer and any such condition the failure of which to exert good faith efforts be satisfied has been caused by or results from a failure by Buyer to carry out perform or comply with its covenants or agreements hereunder); (B) Buyer shall have failed to consummate the provisions of this Agreement;
Closing on the date that is three (3) The Business Days following the day on which the Closing is required to have occurred under Section 2.2; and (C) Seller stood ready, willing and able to consummate the Acquisition during the entirety of such three (3)-Business-Day period and irrevocably confirmed such fact in writing to Buyer on or prior to the end of such three (3)-Business-Day period (the occurrence of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, including, without limitation, the following events:
foregoing clauses (i) Buyer’s fraud or criminal misconduct relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(bA), Buyer’s death if (B) and (C), a “Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibilityClosing Failure”); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Termination by Seller. Subject (i) This Agreement may be terminated by Seller at any time prior to the Closing, if (A) Purchaser shall have breached or failed to comply, in any limitations imposed material respect, with any of Purchaser’s covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Purchaser contained in this Agreement, in the case of clauses (A) and (B), such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.02 to be satisfied, and Seller shall have given Purchaser a reasonable opportunity to cure (if capable of being cured prior to the Closing) any such failure or inaccuracy to so comply before the Closing, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) within thirty (30) days (or by Lawthe Outside Date, if sooner) after receiving notice thereof from Seller; provided, that Seller may terminate this Agreement for pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Seller is not in material breach of any of the following grounds.
(1) Buyer’s failure to comply with any provision of this Agreementits representations, which provision is both reasonable and of material significance to the relationship under this Agreement;
(2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under warranties, covenants or agreements contained in this Agreement and as a result (y) Seller has satisfied those conditions set forth in Section 7.01 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which termination is capable of this Agreement is reasonable, including, without limitation, being satisfied at the following events:
(i) Buyer’s fraud or criminal misconduct relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;Closing).
(ii) BuyerThis Agreement may be terminated by Seller if the Closing shall not have occurred on or before the Outside Date; provided, that (A) Seller may terminate this Agreement pursuant to this Section 9.01(c)(ii) only if at the time of termination (x) Seller is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Seller has satisfied those conditions set forth in Section 7.01 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Seller may not terminate this Agreement pursuant to this Section 9.01(c)(ii) during the pendency of any Legal Proceeding brought by Purchaser for specific performance of Seller’s declaration of bankruptcy or judicial determination of insolvency of Buyer;obligation to consummate the Closing pursuant to Section 10.15.
(iii) Buyer’s continuing severe physical This Agreement may be terminated by Seller if (i) all of the conditions set forth in Section 7.01 shall have been satisfied or mental disability waived (other than those conditions that by their nature are to be satisfied by actions taken at the Closing, provided that each of which is capable of being satisfied at the Closing if Buyer the Closing were to occur at such time), [***], (iii) Purchaser shall have failed to consummate the Closing by the date the Closing is an individualrequired to have occurred pursuant to Section 3.01 and, or if Buyer in the event such failure occurs more than five (5) Business Days prior to the Outside Date, such failure shall not have been cured within five (5) Business Days after written notice thereof has been given by Seller to Purchaser, (iv) at the time of termination, Seller is a partnership or corporation, the disability not in material breach of any individual who representations, warranties, covenants or agreements contained in this Agreement, and (v) Seller is currently in “control” of ready, willing and able to consummate the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;Closing; [***].
(iv) Loss of This Agreement may be terminated by Seller at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Seller may not rely upon this Section 9.01(c)(iv) to terminate this Agreement if Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, fulfill any obligation or such lesser period which condition under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant this Agreement materially contributed to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facilitysuch Closing Legal Impediment.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Samples: Asset Purchase Agreement (Assertio Therapeutics, Inc)
Termination by Seller. Subject If, for any reason other than the occurrence of Force Majeure (in the case of clause (a) only) or the default of Seller:
(a) Buyer commits a material breach or default of its obligations hereunder (other than its payment obligations) and thereafter (i) fails to remedy such breach or default within thirty (30) days after written demand by Seller precisely identifying the breach or default or (ii) if (A) Buyer begins to pursue a remedy within such thirty (30) day period or (B) such breach cannot be cured within such period by Buyer acting diligently, Buyer thereafter fails to diligently pursue a remedy or fails to remedy such breach within sixty (60) days after such written demand by Seller; or
(b) Buyer fails to make any limitations imposed payment when due to Seller pursuant to this Sale Contract (other than a disputed payment) and Buyer does not make such payment within thirty (30) days after notice by LawSeller precisely identifying the outstanding payment; then, upon the occurrence of any such event, Seller may terminate this Agreement Sale Contract. Should Seller so terminate this Sale Contract, it shall be compensated for the Work performed on the basis of the percentage of the Purchase Price for any Production Line equal to the percentage of the following grounds.
(1) Buyer’s failure to comply Work with any provision respect thereto which has been appropriately completed in accordance with this Sale Contract at the time of this Agreementtermination, which provision is both plus the reasonable and cost of material significance to the relationship under this Agreement;
(2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, including, without limitation, the following events:
(i) Buyer’s fraud or criminal misconduct relevant Equipment which has been procured and cannot, using commercially reasonable efforts, be returned to the operation Supplier thereof, PROVIDED that all right, title and interest in any such Equipment shall be transferred to Buyer, free and clear of Buyer’s businessall Liens, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ii) Buyer’s declaration demobilization of bankruptcy or judicial determination of insolvency of Buyer;
staff employed by Seller in connection with this Sale Contract and (iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability reasonable cancellation costs of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21Suppliers.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Termination by Seller. Subject If the Purchaser materially defaults in performing any of its obligations under this Agreement (including its obligation to purchase the Property), and the Purchaser fails to cure any limitations imposed by Lawsuch default within ten (10) Business Days after notice thereof from the Seller, then the Seller’s sole remedy for such default shall be to terminate this Agreement and retain the Deposit. The Seller and the Purchaser agree that, in the event of such a default, the damages that the Seller would sustain as a result thereof would be difficult if not impossible to ascertain. Therefore, the Seller and the Purchaser agree that the Seller shall retain the Deposit as full and complete liquidated damages and as the Seller’s sole remedy. If upon the determination of Seller’s directors, trustees, or members, as applicable, and upon advice of counsel, any term or provision of this Agreement shall prevent, amend, alter, or reduce Seller’s ability to exercise its fiduciary duties under applicable law, Seller shall have the right to terminate this Agreement, whereupon Seller shall promptly, but no later than three (3) Business Days from the date of such termination, pay to Purchaser (or its designee) the sum of (i) the Deposit, (ii) the Deposit Interest, (iii) the Break-Up Fee and (iv) the Expense Reimbursement, and neither Party shall have any further rights or obligations pursuant to this Agreement, other than as set forth herein with respect to rights or obligations that survive termination. Seller may terminate this Agreement for any of if the following grounds.
(1) Buyer’s failure to comply with any provision of this AgreementConfirmation Order is not entered on or before July 31, which provision is both reasonable and of material significance to the relationship under this Agreement;
(2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement;
2011, whereupon Seller shall promptly, but not later than three (3) The occurrence Business Days from July 31, 2011, pay to Purchaser the sum of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, including, without limitation, the following events:
(i) Buyer’s fraud or criminal misconduct relevant to the operation of Buyer’s businessDeposit, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability the Deposit Interest, if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.any,
Appears in 1 contract
Samples: Purchase and Sale Agreement (Chatham Lodging Trust)
Termination by Seller. Subject This Agreement may be terminated by Sellers and the sale and transfer of the Stations abandoned, if:
(a) Sellers are not then in material default hereunder, upon written notice to any limitations imposed by Law, Seller may terminate this Agreement for Buyer if on the date that would otherwise be the Closing Date any of the following grounds.
conditions precedent to the obligations of Sellers set forth in Sections 7.2(a), 7.2(b) and 7.2(e) of this Agreement has not been satisfied or waived in writing by Sellers (1) whether or not occurring as the result of Buyer’s failure to comply with 's material breach of any provision of this Agreement, which provision is both reasonable and of material significance to the relationship under this Agreement);
(2b) Buyer’s failure to exert good faith efforts to carry out Buyer shall default in the provisions performance of its obligations under this AgreementAgreement in any material respect and such default is not cured within thirty (30) days after notice thereof;
(3c) The occurrence Sellers are not then in material default hereunder and Closing has not occurred within one (1) calendar year from the date hereof and failure of an event which Closing to have occurred is relevant due to the relationship under this Agreement and as a result of which failure to receive any regulatory approval required for Closing, including, but not limited to, expiration or termination of this Agreement is reasonablethe Xxxx-Xxxxx-Xxxxxx waiting period, any FCC Consents (including, without limitation, such facts as are disclosed on Schedule 4.6 hereto), and the following events:failure of such consent, expiration or termination to be granted is the result of facts relating to Buyer or any Affiliate of Buyer; or
(id) Buyer’s fraud or criminal misconduct relevant Sellers are not then in material default hereunder if the Closing has not occurred within twenty four (24) months from the date hereof due to the operation failure to receive any regulatory approval required for Closing, including, but not limited to, the expiration or termination of Buyer’s businessthe Xxxx-Xxxxx-Xxxxxx waiting period of any FCC Consent, Buyer’s Marketing Premisesand the failure of such consent, expiration, or Buyer’s Outlets;
(ii) Buyer’s declaration termination to be granted is the result of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21Sellers.
(4e) A determination is made by Seller Closing has not occurred with respect to the Stations within eighteen (18) months from the date hereof, if Sellers are not then in good faith material default hereunder, and Closing has not occurred for any reason other than as provided in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facilitySection 9.2(d).
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sinclair Broadcast Group Inc)
Termination by Seller. Subject to any limitations imposed This Agreement may be terminated and the transactions contemplated by Law, Seller may terminate this Agreement for may be abandoned at any of time prior to the following grounds.Closing Date by Seller if:
(1a) Buyer’s there is a breach by Parent or Purchaser of any representation, warranty, covenant or agreement contained in this Agreement that would give rise to a failure to comply with any provision of this Agreementa condition set forth in Sections 9.03(a) or 9.03(b), which provision has not been cured (or is both reasonable and not capable of material significance to the relationship under this Agreementbeing cured) within fifteen Business Days following receipt by Parent of written notice of such breach;
(2b) Buyer’s failure prior to exert the obtaining of the Required Seller Vote, Seller shall have received an Acquisition Proposal which the Seller Boards have determined to constitute a Superior Proposal pursuant to and in accordance with Section 6.04 and to accept; provided that (i) Seller sha ll have complied in all material respects with Section 6.04, (ii) Seller shall have given Parent at least five Business Days notice prior to such determination and the Seller Boards shall have determined, after taking into account any revised proposal made by Parent since receipt of such Superior Proposal, that such Superior Proposal remains a Superior Proposal (and Seller shall have negotiated in good faith efforts with Parent during such five Business Day period (to carry out the provisions of this Agreementextent Parent desires to negotiate) with respect to such revised proposal), and (iii) Parent (or its designee) shall have been paid in accordance with Section 10.05(b)(i);
(3c) The occurrence of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, including, without limitation, the following events:
(i) Buyer’s fraud or criminal misconduct relevant to any court shall have issued any Order (A) ruling that the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed resolutions passed by the PMPA Seller Boards or other the Seller Shareholder Meeting violated applicable Law.Law or
Appears in 1 contract
Samples: Acquisition Agreement
Termination by Seller. Subject to any limitations imposed by Law, Seller may terminate this Agreement for by notice in writing to Purchaser:
(a) if any representation and warranty of Purchaser or Parent contained in this Agreement fails to be true and accurate or is breached such that any of the following grounds.
(1conditions set forth in Sections 6.3(a)(i) Buyer’s failure or 6.3(a)(ii) would not be satisfied or Purchaser or Parent breaches, or fails to comply with any provision its covenants, agreements and obligations contained in this Agreement such that the condition set forth in Section 6.3(a)(iii) would not be satisfied, and, in each case, such failure or breach either cannot be cured or continues uncured for 10 Business Days (or until the Termination Date, if earlier) after the date on which Seller provides Purchaser with written notice of this Agreementsuch failure or breach; provided, which provision is both reasonable and of material significance however, that if Purchaser can reasonably expect to cure such failure or breach prior to the relationship under Termination Date (and Purchaser confirms in writing to Seller that Purchaser is continuing to exercise commercially reasonable efforts to cause such failure or breach to be cured), Seller may not terminate this AgreementAgreement on account of such failure or breach prior to the Termination Date (and then Seller may only terminate this Agreement to the extent that such failure or breach is not cured on or before the Termination Date);
(2b) Buyer’s failure upon the Termination Date, if Competition Act Approval has not been obtained on or prior to exert good faith efforts such date; provided, however, that if Competition Act Approval has not been obtained on or prior to carry out such date, Seller shall have the provisions option prior to the Termination Date to extend the Termination Date by up to 30 days (and it being agreed that five Business Days prior to the Termination Date, Seller shall advise Purchaser in writing whether it elects to postpone the Termination Date, failing which Seller shall be deemed to have waived its option to extend) provided, however, that the maximum aggregate number of days past the Termination Date under this Agreement;Section 6.4(b) and Section 6.2(b) shall be 30; or
(3c) The occurrence if any of an event the conditions set forth in Section 6.3 (other than those conditions which is relevant by their nature are to be satisfied by actions taken at Closing and other than those covered in Sections 6.4(a) and 6.4(b)) have not been satisfied in all material respects or waived on or prior to the relationship under Termination Date or will be impossible or impractical to satisfy, with the use of commercially reasonable efforts, in each case, provided, however, that Seller shall not be entitled to terminate this Agreement and if the failure or impossibility of satisfaction of the condition was as a result of which the breach by Seller or Guarantor of any of their respective covenants, agreements or obligations under this Agreement. Upon termination of this Agreement is reasonableby Seller pursuant to this Section 6.4, includingeach of Seller and Guarantor shall be released from all of its obligations under this Agreement; provided, without limitationhowever, that the following events:
provisions shall survive: this Section 6.4, Section 7.7 (iConfidentiality), Section 7.8 (Guarantees) Buyer’s and Article 9 (Miscellaneous). Termination of this Agreement shall not relieve any Party from liability for fraud or criminal misconduct relevant willful breach or for any breach of this Agreement occurring prior to the operation termination. Seller's right of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer termination under this Section 6.4 is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority addition to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer rights Seller may have under this Agreement, and Seller pertaining to this facilitythe exercise of a right of termination will not be an election of remedies hereunder.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Samples: Share Purchase Agreement (Taylor Morrison Home Corp)
Termination by Seller. Subject Seller shall have the right to any limitations imposed by Law, Seller may terminate this Agreement for any of the following grounds.
(1) Buyer’s failure to comply with any provision of this Agreement, which provision is both reasonable and of material significance prior to the relationship under this Agreement;
(2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, including, without limitation, the following eventsClosing:
(i) Buyer’s fraud in order to enter into a definitive, written Contract for a Superior Seller Proposal concurrently with such termination; provided that such termination will not be effective unless (1) Seller has complied with its obligations under Section 4.02 and (2) Seller has paid Parent the Seller Termination Fee pursuant to Section 6.03(a)(i) prior to or criminal misconduct relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outletsconcurrently with such termination;
(ii) Buyer’s declaration if the Purchaser Group breaches or fails to perform any of bankruptcy its covenants or judicial determination agreements in this Agreement, or if any of insolvency the representations or warranties of Buyer;the Purchaser Group in this Agreement fails to be true and correct, which breach or failure (1) would give rise to the failure to satisfy a condition set forth in Section 5.01, Section 5.02(a) or Section 5.02(b), as applicable, and (2) (A) is not reasonably capable of being cured by the Purchaser Group by the End Date or (B) if reasonably capable of being cured by the Purchaser Group by the End Date, Seller has delivered to Purchaser written notice of such breach and such breach is not cured by the Purchaser Group by the earlier of (1) the End Date and (2) the date that is thirty (30) days after delivery of such notice; provided, however, that Seller shall not have the right to terminate this Agreement under this Section 6.01(c)(ii) if Seller is then in breach of any covenant or agreement in this Agreement or any representation or warranty of Seller in this Agreement then fails to be true and correct, in each case, such that any condition set forth in Section 5.01, Section 5.03(a), Section 5.03(b) or Section 5.03(c), as applicable, could not then be satisfied; or
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” (1) all of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance conditions set forth in Article 21.
Section 5.01 and Section 5.03 (4except for those conditions to the Closing that by their nature are to be satisfied at the Closing, each of which would be satisfied if the Closing then occurred) A determination is made have been satisfied or waived by Purchaser in writing, (2) Seller has irrevocably confirmed in good faith writing at least three (3) Business Days prior to such termination that Seller stands ready, willing and in able, and will take all actions, to consummate the normal course of business Closing, and (3) Purchaser has failed to withdraw from marketing of motor fuel through retail outlets in consummate the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed Closing by the PMPA or other applicable Lawday that the Closing should have been consummated pursuant to Section 1.02 and within three (3) Business Days of receipt by Purchaser of the written confirmation referred to in clause (2) of this sentence.
Appears in 1 contract
Termination by Seller. Subject to any limitations imposed This Agreement may be terminated and the transactions contemplated hereby abandoned by Lawa vote of a majority of the Board of Directors (or by the vote of the Executive Committee of such Board, Seller may terminate if so empowered) of SELLER:
(a) in the event of a material breach by BUYER of this Agreement for that is not cured within thirty (30) days after receipt of notice of such breach from SELLER; or
(b) in the event any of the following groundsconditions precedent specified in Section 5.1 of this Agreement has not been met as of the date required by this Agreement and, if not so met, has not been waived by SELLER; or
(c) in the event any regulatory approval for the consummation of the Acquisition is denied by the applicable regulatory authority or in the event that at any time prior to the Closing Date it shall become reasonably certain to SELLER, with the advice of counsel, that a regulatory approval required for consummation of the Acquisition will not be obtained within the time reasonably necessary to permit the Closing to take place by the Termination Date (hereinafter defined); or
(d) on or after June 30, 2012 or such later date as the parties may mutually agree (the “Termination Date”) if the Closing has not then occurred unless the failure to consummate by such date is due to a breach of this Agreement by SELLER;
(e) at the option of SELLER in the event that BUYER enters into an agreement or agreements, or intends to enter into an agreement or agreements, providing for the merger, acquisition, or sale of substantially all of the assets of BUYER or its parent company such as would require prior regulatory approval under the Change in Bank Control Act, as amended, or the Bank Holding Company Act of 1956, as amended, or similar law or regulation.
(1f) Buyer’s failure to comply at the option of SELLER in the event that there is a material adverse change in the financial condition or results of operation of BUYER, or pending or threatened litigation or claims with any provision of this Agreement, which provision is both reasonable and of material significance respect to the relationship under transactions contemplated by this Agreement which, in the opinion of SELLER, may hinder or delay past the Termination Date the ability of the parties to consummate the transactions contemplated by this Agreement;
(2g) Buyer’s failure to exert good faith efforts to carry out at the provisions option of this Agreement;
(3) The occurrence of an SELLER in the event which is relevant that a material consent to the relationship under transactions contemplated by this Agreement from a third party cannot be obtained; provided, however, and as a result of which termination of notwithstanding anything in this Agreement is reasonable, including, without limitation, the following events:
(i) Buyer’s fraud or criminal misconduct relevant to the operation of Buyer’s businesscontrary, Buyer’s Marketing Premisesin the event that SELLER is able to directly or indirectly provide to BUYER at no extra cost to BUYER and at a reasonable cost to SELLER substantially the same benefits as would have been provided to BUYER if such material consent were obtained, or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Sellerthan BUYER’s right to grant terminate the right to use the Identifications, which are the subject of the franchise;Agreement hereunder shall be null and void; or
(vh) Buyer’s failure at the option of SELLER in the event that consents to pay the transactions contemplated by this Agreement from such third parties as SELLER may reasonably deem necessary or appropriate are not available prior to Seller in a timely manner when due all sums the Closing Date without substantial additional cost or expense to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive daysSELLER, or in the event that releases of SELLER by such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, third parties as SELLER may reasonably deem necessary or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant appropriate are not available prior to the operation of Buyer’s business, Buyer’s Marketing Premises, Termination Date without substantial additional cost or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject expense to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21SELLER.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Home Bancshares Inc)
Termination by Seller. Subject to any limitations imposed This Agreement may be terminated and the ---------------------- transactions contemplated hereby abandoned by Lawa vote of a majority of the Board of Directors (or by the vote of the Executive Committee of such Board, Seller may terminate if so empowered) of SELLER:
(a) in the event of a material breach by BUYER of this Agreement for and BUYER does not cure such material breach within thirty (30) days after written notice of such material breach is given to BUYER by SELLER; or
(b) in the event any of the following grounds.
(1) Buyer’s failure to comply with any provision of this Agreement, which provision is both reasonable and of material significance to the relationship under this Agreement;
(2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under this Agreement and as a result of which termination conditions precedent specified in SECTION 5.1 of this Agreement is reasonablehas not been satisfied as of the date required by ----------- this Agreement and, includingif not so satisfied, without limitation, the following events:has not been waived by SELLER; or
(ic) Buyer’s fraud in the event any regulatory approval for the consummation of the Acquisition is denied by the applicable regulatory authority or criminal misconduct relevant in the event that at any time prior to the operation Closing Date it shall become reasonably certain to SELLER, based upon the advice of Buyer’s businesscounsel, Buyer’s Marketing Premisesthat a regulatory approval required for consummation of the Acquisition will not be obtained by the Termination Date (as defined below); or
(d) on or after a date which is one hundred eighty (180) calendar days following the date of this Agreement (the "TERMINATION DATE"), if the Closing has not then occurred unless the failure to consummate the Acquisition by such date is due to a breach of this Agreement by SELLER; or
(e) in the event that BUYER enters into an agreement or agreements, or Buyer’s Outlets;intends to enter into an agreement or agreements, providing for the merger, acquisition or sale of all or substantially all of assets of BUYER or its parent company such as would require prior regulatory approval under the Change in Bank Control Act, as amended, or the Bank Holding Company Act of 1956, as amended, or similar law or regulation which, in the reasonable opinion of SELLER, will prevent or materially delay the consummation of the transactions contemplated by this Agreement; or
(iif) Buyer’s declaration in the event that there is a material adverse change in the financial condition or results of bankruptcy operations of BUYER which, in the reasonable opinion of SELLER, will prevent or judicial determination materially delay the consummation of insolvency of Buyer;the transactions contemplated by this Agreement; or
(iiig) Buyer’s continuing severe physical in the event that there is pending or mental disability if Buyer is an individualthreatened litigation or claims with respect to the transactions contemplated by this Agreement which, in the reasonable opinion of SELLER, based upon the advice of counsel, may present a bona fide claim to restrain, enjoin or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” prohibit consummation of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21.
(4) A determination is made transactions contemplated by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Lawmight result in rescission in connection with such transactions.
Appears in 1 contract
Samples: Office Purchase and Assumption Agreement (Blackhawk Bancorp Inc)
Termination by Seller. Subject This Agreement may be terminated at any time prior to any limitations imposed the Closing by LawSeller, by written notice to Buyer:
(a) prior to the commencement of the Confirmation Hearing, if (i) as of the date of such termination, Seller may terminate this Agreement for any is not in breach of Section 5.8, (ii) the following grounds.
(1) Buyer’s failure Board authorizes Seller, subject to comply complying with any provision the terms of this Agreement, which provision to enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal and Seller notifies Buyer in writing that it intends to enter into such an agreement, attaching the most current version of such agreement (and all related agreements) to such notice (provided, that if such intention changes Seller shall promptly notify Buyer of that fact) and (iii) Buyer does not make, within five Business Days of receipt of Seller’s written notification of its intention to enter into a binding agreement for a Superior Proposal, an offer which, thereafter, the Board determines, in good faith after consultation with its financial advisors, is both reasonable and of material significance at least as favorable to the relationship under this Agreement;
stakeholders of Seller as is the Superior Proposal (2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, includingtaking into account, without limitation, financial terms of any termination fee that may be payable pursuant to Section 8.5(b) and the following events:likelihood of consummation);
(b) if there has been a breach of any representation, warranty, covenant or agreement made by Buyer in this Agreement such that an executive officer of Buyer would be unable to deliver the closing certificate to Seller regarding Buyer’s representations and warranties and Buyer’s performance of its obligations as required pursuant to Section 6.3(a) and Section 6.3(b), respectively, and such breach or condition is not curable or, if curable, is not cured within 60 days after written notice thereof is given by Seller to Buyer; provided, however, that if, with respect to any such breach or condition that cannot reasonably be expected to be cured within 60 days, Buyer is diligently proceeding to cure such breach, this Agreement may not be terminated pursuant to this Section 8.3(b) for so long as (i) Buyer’s fraud or criminal misconduct relevant such breach is reasonably likely to be cured prior to the operation date on which this Agreement would otherwise be terminated under Section 8.2 and (ii) Buyer continues such efforts to cure; provided, further, that the right to terminate this Agreement pursuant to this Section 8.3(b) shall not be available to Seller if as of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outletssuch time it is a Proximate Cause Party;
(c) prior to the commencement of the Confirmation Hearing, if (i) as of the date of such termination, Seller is not in breach of Section 5.8, (ii) Buyer’s declaration the Board authorizes Seller to file a Superior Alternate Plan with the Bankruptcy Court and Seller notifies Buyer in writing that it intends to file such Superior Alternate Plan, attaching the most current version of bankruptcy or judicial determination such Superior Alternate Plan (and all related agreements and supporting documentation) to such notice (provided, that if such intention changes Seller shall promptly notify Buyer of insolvency of Buyer;
that fact) and (iii) Buyer’s continuing severe physical or mental disability if Buyer is an individualdoes not make, or if Buyer is a partnership or corporation, the disability within ten Business Days of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss receipt of Seller’s right written notification of its intention to grant file a Superior Alternate Plan, an offer which, thereafter, the right Board determines, in good faith after consultation with its financial advisors, is at least as favorable to use the Identificationsstakeholders of Seller as is the Superior Alternate Plan (taking into account, which are without limitation, financial terms of any termination fee that may be payable pursuant to Section 8.5(b) and the subject likelihood of the franchise;consummation); or
(vd) Buyerif (i) at any time after the conclusion of voting on the Plan as established by the Bankruptcy Court, Seller’s failure stakeholders who are entitled to pay vote on the Plan vote in sufficient number and amount against the Plan such that the Plan is not otherwise capable of being confirmed by the Bankruptcy Court or (ii) subject to compliance by Seller with the first sentence of Section 5.11(g), at any time after the expiration of 150 days following the entry of an order, judgment or ruling by a court of competent jurisdiction in a timely manner when due all sums to which Seller is legally entitled;
the Reorganization Case denying entry of (vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive daysor vacating, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply that is inconsistent with the Laws relevant to entry of, a Confirmation Order satisfying the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance condition set forth in Article 21.
(4) A determination is made by Section 6.2(g), the Bankruptcy Court shall not have thereafter entered a Confirmation Order satisfying the condition set forth in Section 6.2(g); provided, however, that Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining may only terminate this Agreement pursuant to this facilitySection 8.3(d)(ii) if at such time it would not reasonably be expected that a Confirmation Order satisfying the condition set forth in Section 6.2(g) shall be entered prior to the Outside Date.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Termination by Seller. Subject This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to any limitations imposed the Closing, whether before or after the approval by Lawstockholders of Seller referred to in Section 8.1(a), by action of the Seller may terminate this Agreement for Board (which termination by Seller shall be binding on the Netherlands Subsidiary):
(a) if (i) Seller is not in material breach of Section 6.5 or in material breach of any of the following grounds.
(1) Buyer’s failure to comply with any provision other terms of this Agreement, which provision (ii) the Seller Board authorizes Seller, subject to complying with the terms of this Agreement, to enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal and Seller notifies Purchaser in writing that it intends to enter into such an agreement, attaching the most current version of such agreement to such notice, and (iii) Purchaser does not make, within two (2) business days of receipt of Seller’s written notification of its intention to enter into a binding agreement for a Superior Proposal, an offer that the Seller Board determines, in good faith after consultation with its financial advisors, is both reasonable and no less favorable, from a financial point of material significance view, to the relationship under this Agreementstockholders of Seller as the Superior Proposal;
(2b) Buyer’s failure if Purchaser breaches or fails in any material respect to exert good faith perform or comply with any of its covenants and agreements contained herein or breaches any of its representations and warranties in any material respect, in each case that is not curable, such that the conditions set forth in Section 8.3(a) cannot be satisfied; or
(c) if (i) Seller has for a period of at least thirty (30) calendar days after notifying Purchaser of a material breach of a Principal Customer Agreement attempted with reasonable efforts to carry out resolve or cure such material breach in accordance with the provisions terms of this such Principal Customer Agreement;
; (3ii) The occurrence Seller notifies Purchaser that such material breach continues to exist at the end of an event which is relevant such period of at least thirty (30) calendar days; (iii) (iii) Seller and the Netherlands Subsidiary meet all conditions precedent under Article VIII other than Sections 8.2(a), (b), (c), (d), (e), (f) and (g) (and with respect to 8.2(a), only to the relationship under this Agreement and extent that the conditions contained therein are not satisfied as a result of which termination a material breach of this Agreement is reasonable, including, without limitation, the following events:
(i) Buyer’s fraud or criminal misconduct relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer Principal Customer Agreement); and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
Purchaser does not within five (5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining calendar days after the notice pursuant to this facilitySection 9.3(c) waive the condition precedent contained in Section 8.2(g).
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Samples: Asset Purchase Agreement (Seachange International Inc)
Termination by Seller. Subject This Agreement may be terminated at any time prior to any limitations imposed the Closing by LawSeller, by written notice to Buyer:
(a) prior to the commencement of the Confirmation Hearing, if (i) as of the date of such termination, Seller may terminate this Agreement for any is not in breach of Section 5.8, (ii) the following grounds.
(1) Buyer’s failure Board authorizes Seller, subject to comply complying with any provision the terms of this Agreement, which provision to enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal and Seller notifies Buyer in writing that it intends to enter into such an agreement, attaching the most current version of such agreement (and all related agreements) to such notice (provided, that if such intention changes Seller shall promptly notify Buyer of that fact) and (iii) Buyer does not make, within five Business Days of receipt of Seller’s written notification of its intention to enter into a binding agreement for a Superior Proposal, an offer which, thereafter, the Board determines, in good faith after consultation with its financial advisors, is both reasonable and of material significance at least as favorable to the relationship under this Agreement;
stakeholders of Seller as is the Superior Proposal (2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, includingtaking into account, without limitation, financial terms of any termination fee that may be payable pursuant to Section 8.5(b) and the following events:likelihood of consummation);
(b) if there has been a breach of any representation, warranty, covenant or agreement made by Buyer in this Agreement such that an executive officer of Buyer would be unable to deliver the closing certificate to Seller regarding Buyer’s representations and warranties and Buyer’s performance of its obligations as required pursuant to Section 6.3(a) and Section 6.3(b), respectively, and such breach or condition is not curable or, if curable, is not cured within 60 days after written notice thereof is given by Seller to Buyer; provided, however, that if, with respect to any such breach or condition that cannot reasonably be expected to be cured within 60 days, Buyer is diligently proceeding to cure such breach, this Agreement may not be terminated pursuant to this Section 8.3(b)for so long as (i) Buyer’s fraud or criminal misconduct relevant such breach is reasonably likely to be cured prior to the operation date on which this Agreement would otherwise be terminated under Section 8.2 and (ii) Buyer continues such efforts to cure; provided, further, that the right to terminate this Agreement pursuant to this Section 8.3(b) shall not be available to Seller if as of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outletssuch time it is a Proximate Cause Party;
(c) prior to the commencement of the Confirmation Hearing, if (i) as of the date of such termination, Seller is not in breach of Section 5.8, (ii) Buyer’s declaration the Board authorizes Seller to file a Superior Alternate Plan with the Bankruptcy Court and Seller notifies Buyer in writing that it intends to file such Superior Alternate Plan, attaching the most current version of bankruptcy or judicial determination such Superior Alternate Plan (and all related agreements and supporting documentation) to such notice (provided, that if such intention changes Seller shall promptly notify Buyer of insolvency of Buyer;
that fact) and (iii) Buyer’s continuing severe physical or mental disability if Buyer is an individualdoes not make, or if Buyer is a partnership or corporation, the disability within ten Business Days of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss receipt of Seller’s right written notification of its intention to grant file a Superior Alternate Plan, an offer which, thereafter, the right Board determines, in good faith after consultation with its financial advisors, is at least as favorable to use the Identificationsstakeholders of Seller as is the Superior Alternate Plan (taking into account, which are without limitation, financial terms of any termination fee that may be payable pursuant to Section 8.5(b) and the subject likelihood of the franchise;consummation); or
(vd) Buyerif (i) at any time after the conclusion of voting on the Plan as established by the Bankruptcy Court, Seller’s failure stakeholders who are entitled to pay vote on the Plan vote in sufficient number and amount against the Plan such that the Plan is not otherwise capable of being confirmed by the Bankruptcy Court or (ii) subject to compliance by Seller with the first sentence of Section 5.11(g), at any time after the expiration of 150 days following the entry of an order, judgment or ruling by a court of competent jurisdiction in a timely manner when due all sums to which Seller is legally entitled;
the Reorganization Case denying entry of (vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive daysor vacating, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply that is inconsistent with the Laws relevant to entry of, a Confirmation Order satisfying the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance condition set forth in Article 21.
(4) A determination is made by Section 6.2(g), the Bankruptcy Court shall not have thereafter entered a Confirmation Order satisfying the condition set forth in Section 6.2(g); provided, however, that Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining may only terminate this Agreement pursuant to this facilitySection 8.3(d)(ii) if at such time it would not reasonably be expected that a Confirmation Order satisfying the condition set forth in Section 6.2(g) shall be entered prior to the Outside Date.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Samples: Asset Purchase Agreement (Adelphia Communications Corp)
Termination by Seller. Subject This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to any limitations imposed the Closing, whether before or after the approval by Lawstockholders of Seller referred to in Section 8.1(a), by action of the Seller may terminate this Agreement for Board (which termination by Seller shall be binding on the Netherlands Subsidiary):
(a) if (i) Seller is not in material breach of Section 6.5 or in material breach of any of the following grounds.
(1) Buyer’s failure to comply with any provision other terms of this Agreement, which provision (ii) the Seller Board authorizes Seller, subject to complying with the terms of this Agreement, to enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal and Seller notifies Purchaser in writing that it intends to enter into such an agreement, attaching the most current version of such agreement to such notice, and (iii) Purchaser does not make, within two (2) business days of receipt of Seller's written notification of its intention to enter into a binding agreement for a Superior Proposal, an offer that the Seller Board determines, in good faith after consultation with its financial advisors, is both reasonable and no less favorable, from a financial point of material significance view, to the relationship under this Agreementstockholders of Seller as the Superior Proposal;
(2b) Buyer’s failure if Purchaser breaches or fails in any material respect to exert good faith perform or comply with any of its covenants and agreements contained herein or breaches any of its representations and warranties in any material respect, in each case that is not curable, such that the conditions set forth in Section 8.3(a) cannot be satisfied; or
(c) if (i) Seller has for a period of at least thirty (30) calendar days after notifying Purchaser of a material breach of a Principal Customer Agreement attempted with reasonable efforts to carry out resolve or cure such material breach in accordance with the provisions terms of this such Principal Customer Agreement;
; (3ii) The occurrence Seller notifies Purchaser that such material breach continues to exist at the end of an event which is relevant such period of at least thirty (30) calendar days; (iii) (iii) Seller and the Netherlands Subsidiary meet all conditions precedent under Article VIII other than Sections 8.2(a), (b),(c), (d), (e), (f) and (g) (and with respect to 8.2(a), only to the relationship under this Agreement and extent that the conditions contained therein are not satisfied as a result of which termination a material breach of this Agreement is reasonable, including, without limitation, the following events:
(i) Buyer’s fraud or criminal misconduct relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer Principal Customer Agreement); and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
Purchaser does not within five (5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining calendar days after the notice pursuant to this facilitySection 9.3(c) waive the condition precedent contained in Section 8.2(g).
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Termination by Seller. Subject to any limitations imposed by Law, Seller may terminate this Agreement solely for any Purchaser’s material, uncured breach under Sections 5.4 or 5.5 by providing Purchaser with written notification of such material breach, stating grounds thereof. Purchaser shall have ninety (90) days to cure such breach from the receipt of the following grounds.
notice or to dispute. If Purchaser fails to cure such material breach or to dispute within such ninety (1) Buyer’s 90)-day period, then Seller may terminate this Agreement on written notice of termination. If Purchaser disputes such material breach or disputes the failure to comply with any provision cure or remedy such material breach and provides written notice of that dispute to Seller within the above time periods, then the parties shall resolve the matter by binding arbitration using the rules of JAMS, which arbitration shall take place in Chicago, and Seller may not terminate this Agreement until it has been determined by binding arbitration that Purchaser is in material breach of either Section 5.4 or 5.5 of this Agreement, which provision is both reasonable and Purchaser further fails to cure such breach within thirty (30) days after the conclusion of material significance that dispute resolution procedure. In the event Seller terminates this Agreement pursuant to the relationship this Section 7.2, Purchaser shall assign to Seller Purchaser’s rights under all Arenavirus Assets sold by Seller to Purchaser under Section 1.1 under this Agreement;
(2) Buyer’s failure , free and clear of all liens and encumbrances. Other than expressly set forth in Section 7.2 above, Seller shall have no other right to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under terminate this Agreement and as whatsoever. In the event of a result material breach by the Purchaser of which termination any material provision of this Agreement is reasonable, including, without limitation, the following events:
(i) Buyer’s fraud or criminal misconduct relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance than as set forth in Article 21.
(4) A determination is made by this Section 7.2, Seller in good faith shall have available to it all monetary remedies available to it with respect to such breach other than to seek termination, rescission, annulment, cancellation, voidness, or other similar remedies intended to take away the rights of Purchaser to use, exploit and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause dispose of any other agreement between Buyer the Arenavirus Assets. Seller agrees and Seller pertaining to this facility.
(6) Any other ground understands that its sole and exclusive remedy for which termination is provided any such claim shall be a claim for in this Agreement monetary damages from and against Purchaser and it hereby waives any and all remedies or is otherwise allowed by the PMPA claims for equitable or other applicable Lawforms of relief, except for monetary damages.
Appears in 1 contract
Samples: Asset Purchase Agreement (Yumanity Therapeutics, Inc.)
Termination by Seller. Subject (i) This Agreement may be terminated by written notice from Seller to Purchaser at any limitations imposed time prior to the Closing, if Seller is not then in material breach of any provision of this Agreement if (A) Purchaser shall have failed to comply with any of Purchaser’s covenants or agreements contained in this Agreement or (B) any one or more of the representations or warranties of Purchaser contained in this Agreement shall prove to have been inaccurate or breached and, in the case of clauses (A) and (B), such failure, inaccuracy or breach would give rise, if occurring and continuing on the Closing Date, to the failure of any of the conditions specified in Section 7.02(a) or Section 7.02(b). If such failure, inaccuracy or breach is curable through the exercise of commercially reasonable efforts, Seller shall have given Purchaser a reasonable opportunity to cure any such failure, inaccuracy or breach to so comply by Lawthe Outside Date or within thirty (30) days following Seller having notified Purchaser of its intent to terminate this Agreement under this Section 9.01(c)(i).
(ii) This Agreement may be terminated by written notice from Seller to Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that Seller may terminate this Agreement for pursuant to this Section 9.01(c)(ii) only if at the time of termination Seller is not in material breach of any of the following grounds.
(1) Buyer’s failure to comply with any provision of this Agreementits representations, which provision is both reasonable and of material significance to the relationship under this Agreement;
(2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under warranties, covenants or agreements contained in this Agreement and as a result of which termination of this Agreement is reasonable, including, without limitation, the following events:
(i) Buyer’s fraud or criminal misconduct relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance has satisfied those conditions set forth in Article 21Section 7.01 (other than the conditions set forth in Section 7.01(e) and Section 7.01(f) and those conditions that by their terms are to be satisfied by actions taken at the Closing and could have been satisfied or would have been waived assuming a Closing would occur).
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Samples: Asset Purchase Agreement (Vivus Inc)
Termination by Seller. Subject This Agreement may be terminated at any time prior to any limitations imposed the Closing by LawSeller, by written notice to Buyer:
(a) prior to the commencement of the Confirmation Hearing, if (i) as of the date of such termination, Seller may terminate this Agreement for any is not in breach of Section 5.10, (ii) the following grounds.
(1) Buyer’s failure Board authorizes Seller, subject to comply complying with any provision the terms of this Agreement, which provision to enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal and Seller notifies Buyer in writing that it intends to enter into such an agreement, attaching the most current version of such agreement (and all related agreements) to such notice (provided, that if such intention changes Seller shall promptly notify Buyer of that fact) and (iii) Buyer does not make, within five Business Days of receipt of Seller's written notification of its intention to enter into a binding agreement for a Superior Proposal, an offer which, thereafter, the Board determines, in good faith after consultation with its financial advisors, is both reasonable and of material significance at least as favorable to the relationship under this Agreement;
stakeholders of Seller as is the Superior Proposal (2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, includingtaking into account, without limitation, financial terms of any termination fee that may be payable pursuant to Section 8.5(b) and the following events:likelihood of consummation);
(b) if there has been a breach of any representation, warranty, covenant or agreement made by Buyer in this Agreement such that an executive officer of Buyer would be unable to deliver the closing certificate to Seller regarding Buyer's representations and warranties and Buyer's performance of its obligations as required pursuant to Section 6.3(a) and Section 6.3(b), respectively, and such breach or condition is not curable or, if curable, is not cured within 60 days after written notice thereof is given by Seller to Buyer; provided, however, that if, with respect to any such breach or condition that cannot reasonably be expected to be cured within 60 days, Buyer is diligently proceeding to cure such breach, this Agreement may not be terminated pursuant to this Section 8.3(b) for so long as (i) Buyer’s fraud or criminal misconduct relevant such breach is reasonably likely to be cured prior to the operation date on which this Agreement would otherwise be terminated under Section 8.2 and (ii) Buyer continues such efforts to cure; provided, further, that the right to terminate this Agreement pursuant to this Section 8.3(b) shall not be available to Seller if as of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outletssuch time it is a Proximate Cause Party;
(c) prior to the commencement of the Confirmation Hearing, if (i) as of the date of such termination, Seller is not in breach of Section 5.10, (ii) Buyer’s declaration the Board authorizes Seller to file a Superior Alternate Plan with the Bankruptcy Court and Seller notifies Buyer in writing that it intends to file such Superior Alternate Plan, attaching the most current version of bankruptcy or judicial determination such Superior Alternate Plan (and all related agreements and supporting documentation) to such notice (provided, that if such intention changes Seller shall promptly notify Buyer of insolvency of Buyer;
that fact) and (iii) Buyer’s continuing severe physical Buyer does not make, within ten Business Days of receipt of Seller's written notification of its intention to file a Superior Alternate Plan, an offer which, thereafter, the Board determines, in good faith after consultation with its financial advisors, is at least as favorable to the stakeholders of Seller as is the Superior Alternate Plan (taking into account, without limitation, financial terms of any termination fee that may be payable pursuant to Section 8.5(b) and the likelihood of consummation); or
(d) if (i) at any time after the conclusion of voting on the Plan as established by the Bankruptcy Court, Seller's stakeholders who are entitled to vote on the Plan vote in sufficient number and amount against the Plan such that the Plan is not otherwise capable of being confirmed by the Bankruptcy Court or mental disability if Buyer is (ii) subject to compliance by Seller with the first sentence of Section 5.13(g), at any time after the expiration of 150 days following the entry of an individualorder, judgment or ruling by a court of competent jurisdiction in the Reorganization Case denying entry of (or vacating), or if Buyer that is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply inconsistent with the Laws relevant to entry of, a Confirmation Order satisfying the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance condition set forth in Article 21.
(4) A determination is made by Section 6.2(g), the Bankruptcy Court shall not have thereafter entered a Confirmation Order satisfying the condition set forth in Section 6.2(g); provided, however, that Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining may only terminate this Agreement pursuant to this facilitySection 8.3(d)(ii) if at such time it would not reasonably be expected that a Confirmation Order satisfying the condition set forth in Section 6.2(g) shall be entered prior to the Outside Date.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Termination by Seller. Subject to any limitations imposed This Agreement may be terminated and the transactions contemplated by Law, Seller may terminate this Agreement for may be abandoned at any of time prior to the following grounds.Closing Date by Seller if:
(1a) Buyer’s there is a breach by Parent or Purchaser of any representation, warranty, covenant or agreement contained in this Agreement that would give rise to a failure to comply with any provision of this Agreementa condition set forth in Sections 9.03(a) or 9.03(b), which provision has not been cured (or is both reasonable and not capable of material significance to the relationship under this Agreementbeing cured) within fifteen Business Days following receipt by Parent of written notice of such breach;
(2b) Buyer’s failure prior to exert the obtaining of the Required Seller Vote, Seller shall have received an Acquisition Proposal which the Seller Boards have determined to constitute a Superior Proposal pursuant to and in accordance with Section 6.04 and to accept; provided that (i) Seller shall have complied in all material respects with Section 6.04, (ii) Seller shall have given Parent at least five Business Days notice prior to such determination and the Seller Boards shall have determined, after taking into account any revised proposal made by Parent since receipt of such Superior Proposal, that such Superior Proposal remains a Superior Proposal (and Seller shall have negotiated in good faith efforts to carry out the provisions of this Agreement;
with Parent during such five Business Day period (3) The occurrence of an event which is relevant to the relationship under this Agreement extent Parent desires to negotiate) with respect to such revised proposal), and as a result of which termination of this Agreement is reasonable, including, without limitation, the following events:(iii) Parent (or its designee) shall have been paid in accordance with Section 10.05(b)(i);
(i) Buyer’s fraud any court shall have issued any Order (A) ruling that the resolutions passed by the Seller Boards or criminal misconduct relevant to the operation Seller Shareholder Meeting violated applicable Law or (B) restraining, enjoining, prohibiting such resolutions or the execution of Buyer’s business, Buyer’s Marketing Premisesthis Agreement and/or the transactions contemplated hereby, or Buyer’s Outlets(ii) the Enterprise Chamber of the Court of Appeal in Amsterdam ("de Ondernemingskamer") shall have entered an Order ordering (A) an investigation ("onderzoek") within the meaning of Article 2:345 DCC of Seller's affairs ("beleid en de gang van zaken") and (B) a provisional measure ("onmiddellijke voorziening") within the meaning of Article 2:349a (2) DCC in connection with this Agreement and the transactions contemplated hereby, provided that Seller shall have used its reasonable best efforts, after consultation with Parent, to defend against the entry of any such Order and, in the case of clause (ii), that the Supervisory Board of Seller shall have determined in good faith, after consultation with its legal advisors, that there is a reasonable likelihood such investigation, the related report or the possibility of further proceedings would lead to material adverse consequences to Seller, its business or its stakeholders and that termination pursuant to this Section would be in the best interests of Seller, its business or its stakeholders;
(iid) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individualthe Debt Financing Commitment Letter shall have terminated without any renewal of, or if Buyer is a partnership or corporationsubstitute for, the disability of any individual who is currently Debt Financing Commitment Letter (on terms and conditions comparable in “control” of all material respects to the ownership interest (“control” being terms and conditions contemplated in the authority to direct the operations of Buyer and to have Debt Financing Commitment Letter or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, on terms which are the subject of the franchise;
(vnot more adverse to Seller) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21having been obtained.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Termination by Seller. Subject Seller may, on or prior to any limitations imposed by Lawthe Closing Date, Seller may terminate this Agreement for without liability if:
(a) there shall have been a material breach of any representations or warranties set forth in this Agreement on the part of Buyer or if any representations or warranties of Buyer shall have become untrue, provided that Seller has not materially breached any of the following grounds.its obligations hereunder; or
(1b) there shall have been a material breach by Buyer of any of its covenants or agreements hereunder and such breach would result in a material adverse effect on Buyer or on the ability of Buyer or Seller to consummate the transactions contemplated by this Agreement, and Buyer has not cured such breach within ten (10) Business Days after notice by Seller thereof setting forth in reasonable detail the nature of such breach; provided that Seller has not materially breached any of its obligations hereunder; or
(c) the approval of the Company’s stockholders required by Section 5.8 shall not have been obtained at a meeting duly convened thereafter or at any adjournment or postponement thereof; or
(d) the Closing has not occurred by January 31, 2007, unless such date shall have been extended by the mutual written consent of Seller and Buyer; provided, however, that this right to terminate shall not be available to Seller if Seller’s failure to comply with fulfill in any provision of this Agreement, which provision is both reasonable and of material significance to the relationship under this Agreement;
(2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship respect any covenant or obligation under this Agreement has been the cause of, or results in, the failure of the Closing to occur on or before the Closing Date; or any court of competent jurisdiction in the United States or other United States federal or state governmental entity shall have issued a final order, decree or ruling, or taken any other final action, restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement and as a result of which termination of such order, decree, ruling or other action is or shall have become non-appealable, and if this Agreement is reasonableterminated under this Section 8.1(d), including, without limitationneither Buyer nor Seller shall have any liability hereunder; or
(e) in the exercise of its good faith judgment and to its fiduciary duties to its stockholders imposed by law, the following events:
(i) Buyer’s fraud or criminal misconduct relevant to the operation Board of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ii) Buyer’s declaration Directors of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months this Company determines that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Lawrequired.
Appears in 1 contract
Samples: Asset Purchase Agreement (Millennium Biotechnologies Group Inc)
Termination by Seller. Subject to any limitations imposed by Law, Seller may terminate this Agreement for any of the following grounds.
(1i) Buyer’s failure If (A) Buyer shall have breached or failed to comply with any provision of its covenants or other agreements contained in this Agreement, which provision is both reasonable Agreement or any of its representations and warranties set forth in this Agreement shall have become untrue as of material significance any date subsequent to the relationship under this Agreement;
Agreement Date; (2B) Buyer’s such breach, failure to exert good faith efforts perform or the failure of such representations and warranties to carry out be true and correct, individually or in the provisions aggregate, (I) would cause either of this Agreement;
the conditions in Section 9.1 or Section 9.2 not to be satisfied or (3II) The occurrence has the effect of an event which making the consummation of the transactions contemplated hereby illegal or otherwise prohibiting the consummation of the transactions contemplated hereby; (C) Seller shall have delivered to Buyer written notice of such breach or failure to perform; and (D) such breach or failure to perform is relevant incapable of being cured by Buyer prior to the relationship under Termination Date or, if such breach or failure to perform is capable of being cured, Buyer shall not have cured such breach or failure to perform within thirty (30) days after receipt of such written notice (but no later than the Termination Date), then Seller may, upon written notice to Buyer at any time prior to the Closing, terminate this Agreement and as a result of which termination of this Agreement is reasonable, including, without limitation, with the following events:
(i) Buyer’s fraud or criminal misconduct relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;effect set forth in Section 12.3.
(ii) This Agreement may be terminated on or prior to the Closing Date by Seller, upon written notice to Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
, if (iiiA) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” all of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance conditions set forth in Article 218 have been satisfied or waived (other than those conditions that by their nature are to be satisfied or waived at the Closing), (B) Seller has confirmed in a written notice delivered to Buyer that (I) all of the conditions set forth in Article 9 have been satisfied or waived (other than those conditions that by their nature are to be satisfied or waived at the Closing) and (II) Seller is ready, willing and able to consummate the Closing at the time of termination and (C) Buyer fails to complete the Closing within ten (10) Business Days after the later of (x) the date the Closing is required to have occurred pursuant to Section 11.1 and (y) the date written notice is delivered pursuant to Section 12.2(b)(ii)(B).
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Termination by Seller. Subject to any limitations imposed by Law, Seller may terminate this Agreement for at any of the following grounds.
(1) Buyer’s failure to comply with any provision of this Agreement, which provision is both reasonable and of material significance time prior to the relationship under this Agreement;
(2) Buyer’s failure Closing by written notice to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, including, without limitation, the following eventsPurchaser:
(ia) Buyer’s fraud or criminal misconduct relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is upon a partnership or corporation, the disability material breach of any individual who is currently in “control” representation, warranty, covenant or agreement on the part of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance Purchaser set forth in Article 21.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or the Ancillary Agreements, or if any representation or warranty of Purchaser shall have become untrue or incorrect, in either case which has rendered the satisfaction of the conditions set forth in Section 6.02(a) or Section 6.02(b) incapable of fulfillment, and such violation or breach has neither been waived by Seller nor (if capable of being cured) cured by Purchaser within thirty (30) days of Purchaser’s receipt of written notice of such violation or breach from Seller; provided, however, that the right to terminate this Agreement under this Section 7.03(a) shall not be available to Seller if Seller is otherwise allowed then in material breach of any representation, warranty, covenant or agreement set forth in this Agreement or the Ancillary Agreements that has not been cured; or
(b) if (i) the Closing shall not have occurred by November 28, 2023 (the PMPA “Termination Date”), provided, that the Termination Date may be extended to a later date by mutual written consent of Purchaser and Seller, in which case such later date shall be deemed the Termination Date for purposes of this Agreement; and (ii) the failure of the Closing to occur on or other applicable Lawbefore the Termination Date is not caused by a failure of Seller to perform and comply in all material respects with its covenants and agreements contained in this Agreement or any of the Ancillary Agreements that are required to be performed or complied with at or prior to Closing.
Appears in 1 contract
Samples: Business Combination Agreement (Alternus Clean Energy, Inc.)
Termination by Seller. Subject (i) This Agreement may be terminated by Seller at any time prior to the Closing, if (A) Purchaser shall have failed to comply, in any limitations imposed material respect, with any of Purchaser’s covenants or agreements contained in this Agreement or (B) any one or more of the representations or warranties of Purchaser contained in this Agreement shall prove to have been inaccurate in any material respect when made and, in the case of clauses (A) and (B), such failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.02 to be satisfied, and Seller shall have given Purchaser a reasonable opportunity to cure (if capable of being cured prior to the Closing) any such failure or inaccuracy to so comply before the Closing.
(ii) This Agreement may be terminated by LawSeller if the Closing shall not have occurred on or before the Outside Date; provided, however, that Seller may terminate this Agreement for pursuant to this Section 9.01(c)(ii) only if at the time of termination (A) Seller is not in material breach of any of the following grounds.
(1) Buyer’s failure to comply with any provision of this Agreementits representations, which provision is both reasonable and of material significance to the relationship under this Agreement;
(2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under warranties, covenants or agreements contained in this Agreement and as a result of which termination of this Agreement is reasonable, including, without limitation, (B) Seller has satisfied those conditions set forth in Section 7.01 required to be satisfied by Seller (other than those conditions that by their terms are to be satisfied by actions taken at the following events:
(i) Buyer’s fraud or criminal misconduct relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;Closing).
(iii) Buyer’s continuing severe physical This Agreement may be terminated by Seller if (i) all of the conditions set forth in Section 7.01 (other than in Section 7.01(k)) shall have been satisfied or mental disability if Buyer waived (other than those conditions that by their nature are to be satisfied by actions taken at the Closing), (ii) Seller shall have materially complied with its covenants in Section 6.22(b), but Purchaser shall not have received the proceeds of the Financing, (iii) Purchaser shall have failed to consummate the Closing by the date the Closing is an individualrequired to have occurred pursuant to Section 3.01 and, or if Buyer in the event such failure occurs more than five (5) Business Days prior to the Outside Date, such failure shall not have been cured within five (5) days after written notice thereof has been given by Seller to Purchaser, (iv) at the time of termination, Seller is a partnership or corporation, the disability not in material breach of any individual who representations, warranties, covenants or agreements contained in this Agreement or in any Seller Certification (other than Seller Certifications that have been revoked or rescinded and been replaced with updated Seller Certifications) and (v) Seller is currently in “control” of ready, willing and able to consummate the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;Closing.
(iv) Loss of Seller’s right This Agreement may be terminated by Seller at any time prior to grant the right Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Seller may not rely upon this Section 9.01(c)(iv) to terminate this Agreement if Seller shall have failed to use reasonable best efforts to prevent the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction occurrence of any felony involving moral turpitude;
(x) Subject such Closing Legal Impediment or to Article 22(b), Buyer’s death if Buyer is an individual, remove or if Buyer is a partnership or corporation, the death of appeal as promptly as practicable any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21such Closing Legal Impediment.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Termination by Seller. Subject to any limitations imposed This Agreement may be terminated and the transactions contemplated hereby abandoned by Law, Seller may terminate this Agreement for any a vote of a majority of the following grounds.Board of Directors (or by the vote of the Executive Committee of such Board, if so empowered) of SELLER:
(1a) Buyer’s failure to comply with any provision in the event of this Agreement, which provision is both reasonable and of a material significance to the relationship under this Agreement;
(2) Buyer’s failure to exert good faith efforts to carry out the provisions breach by BUYER of this Agreement;
(3b) The occurrence in the event any of an the conditions precedent specified in Section 5.1 of this Agreement (i) has not been met as of the date specified for such condition in this Agreement or if no date is specified, the Closing Date, or (ii) in the reasonable determination of SELLER, is not capable of being met, and in the case of either (i) or (ii), has not been waived by SELLER;
(c) in the event any regulatory approval for the consummation of the Acquisition is denied by any applicable regulatory authority;
(d) on or after the date which is relevant 180 calendar days following the date of this Agreement (the “Termination Date”) if the Closing has not then occurred unless the failure to consummate by such date is due to a breach of this Agreement by SELLER;
(e) in the event that there is a material adverse change in the financial condition or results of operation of BUYER, or pending or threatened litigation or claims with respect to the relationship under transactions contemplated by this Agreement which, in the opinion of SELLER, may hinder or delay the ability of the parties to consummate the transactions contemplated by this Agreement; or
(f) in the event that BUYER fails to obtain by October 31, 2011, any required regulatory approval of which it is BUYER’s responsibility to obtain, and in the event of such a termination BUYER shall pay to SELLER the actual costs, fees and expenses incurred by SELLER in connection with this Agreement and as a result of which termination of this Agreement is reasonablethe Acquisition, including, without limitation, the following events:attorneys’ fees, filing costs and out of pocket expenses subject to a maximum payment of $150,000; or
(ig) Buyer’s fraud in the event that SELLER or criminal misconduct relevant any of its affiliates receives from a third party any unsolicited proposal to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” acquire both of the ownership interest (“control” being the authority Offices that SELLER, in its sole discretion, determines to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identificationspursue, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21.
(4) A determination is made by Seller in good faith and in the normal course event of business such a termination (and only in such event), SELLER shall pay to withdraw from marketing BUYER a termination fee of motor fuel through retail outlets in $150,000. The payment obligations of BUYER under Section 9.2(f) and the relevant geographic market area in which Buyer’s Outlets are located;
(5payment obligations of SELLER under Section 9.2(g) Termination by Seller for cause shall survive any termination of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Lawpursuant to such sections.
Appears in 1 contract
Samples: Office Purchase and Assumption Agreement (CSB Bancorp Inc /Oh)
Termination by Seller. Subject to any limitations imposed by Law, Seller may terminate this Agreement for at any of the following grounds.
(1) Buyer’s failure to comply with any provision of this Agreement, which provision is both reasonable and of material significance time prior to the relationship under this Agreement;
(2) Buyer’s failure Closing by written notice to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, including, without limitation, the following eventsPurchaser:
(ia) Buyer’s fraud or criminal misconduct relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is upon a partnership or corporation, the disability material breach of any individual who is currently in “control” representation, warranty, covenant or agreement on the part of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance Purchaser set forth in Article 21.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or the Ancillary Agreements, or if any representation or warranty of Purchaser shall have become untrue or incorrect, in either case which has rendered the satisfaction of the conditions set forth in Section 6.02(a) or Section 6.02(b) incapable of fulfillment, and such violation or breach has neither been waived by Seller nor (if capable of being cured) cured by Purchaser within thirty (30) days of Purchaser’s receipt of written notice of such violation or breach from Seller; provided, however, that the right to terminate this Agreement under this Section 7.03(a) shall not be available to Seller if Seller is otherwise allowed then in material breach of any representation, warranty, covenant or agreement set forth in this Agreement or the Ancillary Agreements that has not been cured; or
(b) if (i) the Closing shall not have occurred by May 26, 2023 (the PMPA “Termination Date”), provided, that the Termination Date may be extended to a later date by mutual written consent of Purchaser and Seller, in which case such later date shall be deemed the Termination Date for purposes of this Agreement; and (ii) the failure of the Closing to occur on or other applicable Lawbefore the Termination Date is not caused by a failure of Seller to perform and comply in all material respects with its covenants and agreements contained in this Agreement or any of the Ancillary Agreements that are required to be performed or complied with at or prior to Closing.
Appears in 1 contract
Samples: Business Combination Agreement (Clean Earth Acquisitions Corp.)
Termination by Seller. Subject Time is of the essence as to the Customer’s performance of its obligations hereunder. Seller may, in addition to its other rights and remedies at law or in equity, immediately terminate any limitations imposed obligation to Customer with respect to the sale of the Products by Lawnotice to Customer if in Seller’s judgment: (a) Customer fails to make any payment on the date due or to accept delivery of any shipment; (b) Customer makes a general assignment for the benefit of creditors; (c) Customer admits in writing its inability to pay its debts as they mature; (d) a trustee or receiver of all or a substantial part of Customer’s assets is appointed by any court; (e) any bankruptcy or reorganization proceeding is instituted by or against Customer; (f) Customer becomes insolvent or unable to pay its debts as they mature; (g) in the event delivery is dependent on Customer’s cooperation, Customer fails to cooperate in effecting delivery at the time agreed upon, or absent such agreement, at the time fixed by Seller; or (h) Seller has reasonable basis for insecurity with respect to Customer’s performance of its obligations to Seller and Customer fails to provide to Seller adequate assurance of Customer’s performance within 10 days of Seller’s demand for such assurance. Seller may also terminate this Agreement any such obligation to Customer on 10 days’ notice for any failure of the following grounds.
(1) Buyer’s failure Customer to comply with any provision of its other obligations to Seller contained in this Agreement; provided that such failure shall not have been corrected during such 10-day period. Seller, at its option and in addition thereto, may also make all unpaid amounts immediately due and payable. The occurrence of any of the foregoing shall be a material breach by Customer of this Agreement. Seller shall be entitled to pursue all of its rights and remedies against Customer arising out of any such breach and/or termination, and Customer shall be responsible for all costs and expenses incurred by Seller, including attorneys’ fees and costs of collection or enforcement of this Agreement, which provision is both reasonable and of material significance to the relationship under this Agreement;
(2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonablewhether incurred with or without litigation, including, without limitation, the following events:
(i) Buyer’s fraud on appeal or criminal misconduct relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21otherwise.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Samples: Terms and Conditions of Sale
Termination by Seller. Subject Seller may, in addition to any limitations imposed by Law, such other remedies as Seller may have (including, without limitation, the right to terminate this Agreement as otherwise provided herein), terminate this Agreement upon giving Purchaser ninety (90) days’ prior written notice of such termination or, if it would not be reasonable for Seller to give ninety (90) days’ prior written notice, at Seller’s election upon giving Purchaser prior written notice for such lesser period as is reasonable in the circumstances, if any one of the following grounds.occurs:
(1) Buyer’s failure to comply with Purchaser by act or omission breaches or defaults on any covenant, condition, or other provision of this Agreement, which provision is both reasonable breach or default can be cured, and Purchaser fails to cure such breach or default within ten (10) days after written notice from Seller which notice shall specify such breach of material significance to the relationship under this Agreement;default; or
(2) Buyer’s failure to exert good faith efforts to carry out the provisions Purchaser by act or omission breaches or defaults on any covenant, condition, or other provision of this Agreement;, which breach or default cannot be cured, or in the event of any breach or default by Purchaser after notice of two previous breaches or defaults of any kind has been given hereunder, regardless of Purchaser’s curing of such previous breaches or defaults; or
(3) The occurrence of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, including, without limitation, the following events:
(i) Buyer’s fraud or criminal misconduct relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure Purchaser fails to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
entitled (vi) Buyer’s failure whether or not such sums are owed to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which Seller under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibilitythis Agreement); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21.or
(4) A determination is made by Seller in good faith and in Purchaser knowingly fails to comply with federal, state, or local laws or regulations relevant to Purchaser’s performance of this Agreement and/or the normal course use and/or operation of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;Premises; or
(5) Termination Purchaser willfully adulterates, commingles, mislabels, or misbrands Texaco Automotive Fuels or other violations by Purchaser of trademarks, trade names, and/or insignia requirements of Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.and/or ChevronTexaco; or
(6) This Agreement, or any interest therein, is assigned or otherwise transferred contrary to the provisions hereof; or
(7) Purchaser vacates, abandons, transfers, or is deprived of possession of the Premises; or
(8) Unlawful, fraudulent, or deceptive acts or practices or criminal misconduct by Purchaser relevant to the Purchaser’s performance of this Agreement and/or the use and/or operation of the Premises; or
(9) Failure by Purchaser to operate the Premises as an automotive fuel retail outlet for seven (7) consecutive days,; or
(10) Conviction of Purchaser of any felony including moral turpitude; or
(11) Purchaser’s death, if Purchaser is an individual (subject to any valid requirements of any applicable statute); or
(12) Purchaser knowingly induces the breach by a third party of a contract between Seller and the third party; or
(13) Purchaser declares bankruptcy or is judicially declared insolvent; or
(14) Any other ground for event which is relevant to the relationship between Seller and/or ChevronTexaco and/or Purchaser and as a result of which termination of the Agreement is provided reasonable. Notwithstanding anything to the contrary herein, and without limitation on the foregoing, it is agreed that upon the occurrence of any of the events specified in clauses (1), (3) through (14) of this subsection (b), it shall not be unreasonable for in Seller to terminate this Agreement or is otherwise allowed by the PMPA or other applicable Lawupon giving Purchaser ten (10) days’ instead of ninety (90) days’ prior written notice of such termination.
Appears in 1 contract
Samples: Retail Supply Agreement (Bowlin Travel Centers Inc)
Termination by Seller. Subject This Agreement may be terminated at any time prior to the Closing by Seller by written notice of Seller to Buyer:
(a) at any limitations imposed by Lawtime prior to the End Date, if (i) Seller may terminate this Agreement for has not breached any of the terms of Section 6.02, (ii) Seller has complied with the terms of Section 6.02(c)(ii) and, following grounds.
the four Business Day period (1or shorter period) Buyer’s failure provided for therein and after consideration of any change to comply this Agreement proposed in negotiations with any provision Buyer and during such period, the Seller Board authorizes Seller, subject to complying with the terms of this Agreement, which provision is both reasonable to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal and (iii) Seller, simultaneous with such termination, pays to Buyer in immediately available funds any fees required to be paid pursuant to Section 9.05; provided, that Seller agrees that it will not enter into the binding agreement referred to in clause (ii) above until at least the fourth Business Day after it has provided the notice to Buyer required by Section 6.02(c), if any, and in the event of any material significance change to the relationship terms of such Superior Proposal, Seller will, in each case, have delivered to Buyer an additional notice as required by Section 6.02(c) and the notice period will have recommenced; provided, further that Seller does not have the right to terminate this Agreement under this Agreement;Section 9.03(a) after the End Date; or
(2b) Buyer’s failure to exert good faith efforts to carry out if there has been a breach of any representation, warranty, covenant or agreement made by Buyer in this Agreement, or any such representation and warranty will have become untrue after the provisions date of this Agreement;
, such that Section 7.03(a) or (3b) The occurrence or (a) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within the earlier of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, including, without limitation, the following events:
(i) Buyer’s fraud or criminal misconduct relevant 30 calendar days after written notice thereof is given by Seller to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
Buyer and (ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21Termination Date.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Termination by Seller. Subject (i) This Agreement may be terminated by Seller at any time prior to the Closing if (A) Purchaser shall have failed to comply, in any limitations imposed material respect, with any of Purchaser’s covenants or agreements contained in this Agreement or (B) any one or more of the representations or warranties of Purchaser contained in this Agreement shall prove to have been inaccurate in any material respect when made and, in the case of clauses (A) and (B) above, such failure or inaccuracy has a Purchaser Material Adverse Effect as of the Closing, and Seller shall have given Purchaser a reasonable opportunity to cure any such failure or inaccuracy to so comply before the Closing.
(ii) This Agreement may be terminated by LawSeller if the Closing shall not have occurred on or before the Outside Date; provided, however, that Seller may terminate this Agreement for pursuant to this Section 9.01(c)(ii) only if at the time of termination (A) Seller is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (B) Seller has satisfied those conditions set forth in Section 7.01 to be performed by Seller (other than those conditions that by their terms are to be satisfied by actions taken at the following groundsClosing and could have been satisfied or would have been waived assuming a Closing would occur).
(1iii) Buyer’s failure This Agreement may be terminated by Seller at any time prior to comply the Closing if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Seller may not rely upon this Section 9.01(c)(iii) to terminate this Agreement if Seller shall have failed to use reasonable best efforts to prevent the occurrence of any such Closing Legal Impediment or to remove or appeal as promptly as practicable any such Closing Legal Impediment.
(iv) This Agreement may be terminated by Seller if (A) all the conditions set forth in Article VII have been satisfied (other than those that can only be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing), (B) Purchaser is required to consummate the Closing pursuant to Section 3.01(a), (C) Seller gives irrevocable written notice to the Buyer at least three Business Days prior to such termination stating that, if the Financing is funded, Seller will consummate the Closing in accordance with any provision the terms of this Agreement, which provision (D) Seller is both reasonable ready, willing and able to consummate the Closing during such three Business Day period, and (E) Purchaser fails to consummate the Closing within such three Business Day period; provided, that Seller may not rely upon this Section 9.01(c)(iv) to terminate this Agreement if Seller is in material breach of any representation or warranty or has failed to perform in all material significance to the relationship under respects any of its covenants or other agreements contained in this Agreement;
(2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, including, without limitation, the following events:
(i) Buyer’s fraud or criminal misconduct relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Samples: Asset Purchase Agreement (Assertio Therapeutics, Inc)
Termination by Seller. Subject to any limitations imposed by Law, The Seller may terminate this Agreement for any prior to Closing by delivering written notice of the following grounds.
(1) termination to Buyer’s failure to comply with any provision of this Agreement, which provision is both reasonable and of material significance to the relationship under this Agreement;
(2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, including, without limitation, the following eventsif:
(i) Buyer’s fraud the approval of the board of directors of Seller required by Section 6.4(a) is not obtained on or criminal misconduct relevant to before the operation Approval Date, and has still not been obtained on or before delivery of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outletssuch termination notice;
(ii) Buyer’s declaration the approval of bankruptcy the board of directors of Buyer required by Section 6.4(b) is not obtained on or judicial determination before the Approval Date, and Seller has not received notice of insolvency such board approval as required in Section 4.1(a) on or before delivery of Buyersuch termination notice;
(iii) Buyer’s continuing severe physical if any Regulatory Approvals required by Section 6.5 are not obtained on or mental disability if Buyer is an individualbefore February 28, or if Buyer is a partnership or corporation2007, the disability of any individual who is currently in “control” of the ownership interest (“control” being the authority so long as Seller has expended commercially reasonable efforts to direct the operations of Buyer and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outletsobtain such approvals;
(iv) Loss if at any time the Buyer is in material breach of Seller’s right to grant the right to use the Identificationsany of its representations, warranties or obligations under this Agreement, which are breach has not been cured (if capable of being cured) within thirty (30) calendar days after the subject Seller has given written notice of such material breach to Buyer (but in no event past the franchisefifth business day preceding the Outside Closing Date);
(v) Buyer’s failure if Buyer has failed by December 15, 2006 to pay secure adequate financing to Seller consummate the transactions set forth in a timely manner when due all sums this Agreement, provided that Buyer may demonstrate adequate financing by having available to which Seller is legally entitledit or its affiliates in cash, liquid investments or availability under its line of credit an amount not less than the Purchase Price;
(vi) Buyer’s failure if the FTC conditions its approval of this Agreement or the transaction contemplated hereby in a manner that has a material adverse effect on the benefits that Seller expects to operate Buyer’s Marketing Premises for 7 consecutive daysderive from the transaction contemplated by this Agreement, or the FTC staff advises the parties that Buyer is not an acceptable purchaser of the Assets or that the Agreement is not acceptable, and despite the parties’ good faith efforts to modify such lesser period which under agreement, negotiations with the facts and circumstances constitutes an unreasonable period of time;FTC staff have terminated without a mutually acceptable resolution; or
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or if for any other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporationreason, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to Closing shall not have occurred on or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21before March 15, 2007.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Samples: Contingent Asset Sale Agreement (Carriage Services Inc)
Termination by Seller. Subject to any limitations imposed This Agreement may be terminated and the transactions contemplated by Law, Seller may terminate this Agreement for may be abandoned at any of time prior to the following grounds.Closing Date by Seller if:
(1a) Buyer’s there is a breach by Parent or Purchaser of any representation, warranty, covenant or agreement contained in this Agreement that would give rise to a failure to comply with any provision of this Agreementa condition set forth in Sections 9.03(a) or 9.03(b), which provision has not been cured (or is both reasonable and not capable of material significance to the relationship under this Agreementbeing cured) within fifteen Business Days following receipt by Parent of written notice of such breach;
(2b) Buyer’s failure prior to exert the obtaining of the Required Seller Vote, Seller shall have received an Acquisition Proposal which the Seller Boards have determined to constitute a Superior Proposal pursuant to and in accordance with Section 6.04 and to accept; provided that (i) Seller shall have complied in all material respects with Section 6.04, (ii) Seller shall have given Parent at least five Business Days notice prior to such determination and the Seller Boards shall have determined, after taking into account any revised proposal made by Parent since receipt of such Superior Proposal, that such Superior Proposal remains a Superior Proposal (and Seller shall have negotiated in good faith efforts to carry out the provisions of this Agreement;
with Parent during such five Business Day period (3) The occurrence of an event which is relevant to the relationship under this Agreement extent Parent desires to negotiate) with respect to such revised proposal), and as a result of which termination of this Agreement is reasonable, including, without limitation, the following events:(iii) Parent (or its designee) shall have been paid in accordance with Section 10.05(b)(i);
(i) Buyer’s fraud any court shall have issued any Order (A) ruling that the resolutions passed by the Seller Boards or criminal misconduct relevant to the operation Seller Shareholder Meeting violated applicable Law or (B) restraining, enjoining, prohibiting such resolutions or the execution of Buyer’s business, Buyer’s Marketing Premisesthis Agreement and/or the transactions contemplated hereby, or Buyer’s Outlets(ii) the Enterprise Chamber of the Court of Appeal in Amsterdam ("de Ondernemingskamer") shall have entered an Order ordering (A) an investigation ("onderzoek") within the meaning of Article 2:345 DCC of Seller's affairs ("beleid en de gang xxx xxxxx") and (B) a provisional measure ("onmiddellijke voorziening") within the meaning of Article 2:349a (2) DCC in connection with this Agreement and the transactions contemplated hereby, provided that Seller shall have used its reasonable best efforts, after consultation with Parent, to defend against the entry of any such Order and, in the case of clause (ii), that the Supervisory Board of Seller shall have determined in good faith, after consultation with its legal advisors, that there is a reasonable likelihood such investigation, the related report or the possibility of further proceedings would lead to material adverse consequences to Seller, its business or its stakeholders and that termination pursuant to this Section would be in the best interests of Seller, its business or its stakeholders;
(iid) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individualthe Debt Financing Commitment Letter shall have terminated without any renewal of, or if Buyer is a partnership or corporationsubstitute for, the disability of any individual who is currently Debt Financing Commitment Letter (on terms and conditions comparable in “control” of all material respects to the ownership interest (“control” being terms and conditions contemplated in the authority to direct the operations of Buyer and to have Debt Financing Commitment Letter or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, on terms which are the subject of the franchise;
(vnot more adverse to Seller) Buyer’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21having been obtained.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Termination by Seller. Subject Seller may only terminate all or any part of the Agreement, including Purchase Orders, by providing Notice to Buyer: (a) If Buyer has failed to pay any limitations imposed amount that is due and payable under the Agreement and such failure has continued for Thirty (30) days following Buyer’s receipt of Notice of such failure: (b) Buyer is in material breach of any representation, warranty, condition, or covenant of Buyer under the Agreement, other than other than a breach specified in paragraph (a) directly above, and either the breach cannot be cured or, if the breach can be cured, it is not cured by Buyer within Thirty (30) days following Buyer's receipt of Notice of such breach; (c) Buyer voluntarily commences proceedings under any bankruptcy, insolvency, debtor’s relief or similar Law; (d) proceedings under any bankruptcy, insolvency, debtor’s relief or similar Law are commenced (other than as provided in paragraph (c) above) against Buyer and such proceeding is not dismissed within Fourteen (14) days; or (e) Buyer is liquidated, dissolved or wound-up. In the event Seller terminates the Agreement or any Purchase Order pursuant to this section, Seller may terminate this Agreement shall be entitled to receive, as its sole and exclusive remedy for any termination of the following grounds.
(1) Buyer’s failure to comply with any provision of this Agreement, which provision is both reasonable and of material significance to Agreement and/or the relationship under this Agreement;
(2) Buyer’s failure to exert good faith efforts to carry out the provisions of this Agreement;
(3) The occurrence of an event which is relevant to the relationship under this Agreement and as a result of which termination of this Agreement is reasonable, including, without limitation, the following events:
applicable Purchase Orders: (i) Buyer’s fraud or criminal misconduct relevant to any amounts then due and payable which remain unpaid by Buyer as at the operation date of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
such termination; and (ii) Buyer’s declaration of bankruptcy or judicial determination of insolvency of Buyer;
(iii) Buyer’s continuing severe physical or mental disability if Buyer is an individual, or if Buyer is a partnership or corporation, the disability of any individual who is currently in “control” payment of the ownership interest (“control” being applicable termination liability amount as set out in all terminated Purchase Orders provided always that this is without prejudice to any other claims that Seller may have in respect of breaches of clauses in the authority Agreement relating to direct the operations of Buyer confidentiality as per SECTION XIII, data protection as per SECTION XIV, and to have or exercise management responsibility) of at least 3 months that renders Buyer unable to provide for the continued proper operation of Buyer’s Marketing Premises or Buyer’s Outlets;
(iv) Loss of Seller’s right to grant the right to use the Identifications, which are the subject of the franchise;
(v) BuyerBackground IP Rights and Seller’s failure to pay to Seller in a timely manner when due all sums to which Seller is legally entitled;
(vi) Buyer’s failure to operate Buyer’s Marketing Premises for 7 consecutive days, or such lesser period which under the facts and circumstances constitutes an unreasonable period of time;
(vii) Buyer’s willful adulteration, mislabeling, or misbranding of motor fuels or other trademark violations;
(viii) Buyer’s knowing failure to comply with the Laws relevant to the operation of Buyer’s business, Buyer’s Marketing Premises, or Buyer’s Outlets;
(ix) Buyer’s conviction of any felony involving moral turpitude;
(x) Subject to Article 22(b), Buyer’s death if Buyer is an individual, or if Buyer is a partnership or corporation, the death of any individual who is currently in “control” of the ownership interest of Buyer (“control” being the authority to direct the operations of Buyer and to have or exercise management responsibility); and
(xi) Buyer’s failure to comply with Buyer’s obligations relating to Insurance set forth in Article 21Foreground IP Rights as per SECTION XII.
(4) A determination is made by Seller in good faith and in the normal course of business to withdraw from marketing of motor fuel through retail outlets in the relevant geographic market area in which Buyer’s Outlets are located;
(5) Termination by Seller for cause of any other agreement between Buyer and Seller pertaining to this facility.
(6) Any other ground for which termination is provided for in this Agreement or is otherwise allowed by the PMPA or other applicable Law.
Appears in 1 contract
Samples: Master Purchase Agreement (SatixFy Communications Ltd.)
