Third Party Consents No governmental authority or other third party consents (including but not limited to approvals, licenses, registrations or declarations) are required in connection with the execution, delivery or performance by the Assuming Institution of this Agreement, other than such consents as have been duly obtained and are in full force and effect.
Actions Prior to Closing From the date hereof until the Closing Date, Contributor shall not take any action or fail to take any action the result of which could (1) have a material adverse effect on the Contributed Interests or the Operating Partnership’s ownership thereof, or any Material Adverse Effect on any Contributed Entity or Property after the Closing Date or (2) cause any of the representations and warranties contained in this Section 2.2 to be untrue as of the Closing Date.
Required Consents No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default has occurred and is continuing at the time of such assignment, or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten Business Days after having received notice thereof;
(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments if such assignment is to a Person that is not a Lender with a Commitment, an Affiliate of such Lender or an Approved Fund; and
(C) the consent of each LC Issuing Bank and Swingline Lender shall be required for any assignment.
Governmental Authorization; Third Party Consents No approval, consent, compliance, exemption or authorization of any governmental authority or agency, or of any other person or entity, is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Warrant Holder of this Warrant Agreement or the transactions contemplated hereby.
Conduct of Business Prior to Closing Between the date of the execution of this Agreement and the Closing, the Borrower and the Guarantor Parties: (a) shall not enter into any agreements of any nature relating to or affecting the Loan Collateral or the business of the Borrower or Guarantor, including any agreement which may restrict the Borrower or Guarantor, as applicable, from operating its business as currently conducted unless the written consent of the Lender shall first be obtained, (b) shall not convey or remove from any location where now located, any of the Loan Collateral to be conveyed under the Conveyance Documents, (c) shall not cancel any insurance policies with respect to the Loan Collateral and shall preserve and maintain its permits and licenses including any cannabis related licenses, (d) shall use commercially reasonable efforts to continue to operate the Cannabis Business and the Loan Collateral in the ordinary course consistent with past practice, subject to the availability of sufficient working capital and the Borrower and Guarantor’s reasonable business judgment, (e) shall use commercially reasonable efforts to preserve the rights, franchises, goodwill and relationships of its employees, customers, lenders, suppliers, regulators and others having business relationships with the Borrower and Guarantor and shall maintain the Loan Collateral in a state of repair and condition that is consistent with the requirements and normal conduct of the business of the Borrower and Guarantor, subject to the availability of sufficient working capital and the Borrower and Guarantor’s reasonable business judgment, (f) shall maintain its books and records in accordance with past practice, (g) shall not incur any Indebtedness other than Permitted Indebtedness or authorize or commit to the same, (h) shall not lend money to or guarantee the debts of any other Person or authorize or commit to the same, (i) shall not issue or amend any securities or authorize or commit to the same, except as contemplated by the Call Option Agreement, (j) shall not take any action that would materially delay, prohibit or impede the transactions contemplated by this Agreement or the Call Option Agreement, (k) shall fully cooperate with any reasonable requests of appraisers retained by the Lender or its counsel, (l) shall comply in all material respects with applicable laws, (m) shall not lend money to, or guarantee the debts of, any other Person, (n) shall not settle or commence any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity commenced to which the Borrower or Guarantor is a party, (o) shall not amend its constating documents, (p) shall not effect any split, consolidation, reclassification, redemption or repurchase of its securities, (q) shall not reorganize, amalgamate or merge, (r) shall not undertake any voluntary dissolution, liquidation or winding-up or any other disposition of its assets for the purpose of winding up, (s) shall not declare, set aside or pay any dividend or other disposition of any kind or nature (whether in cash, stock or property or any combination thereof) in respect of any securities, (t) shall not make any bonus or profit sharing distribution or similar payment of any kind, (u) except as required by applicable law, shall not agree to or make any severance, change of control or termination payment or increase the compensation of any employee, officer, director or consultant, (v) shall not terminate, dismiss, demote or otherwise decrease the job requirement of any officer, (w) shall not appoint any officer, (x) shall complete on a timely basis all requisite filings with Governmental Authorities or as may otherwise be required under applicable law, (y) shall allow a representative of the Lender to attend and observe any meeting of the board of directors of the Borrower or Guarantor, (z) shall not make or enter into any commitment or agreement in contravention of the foregoing and (aa) shall use best efforts to satisfy the conditions to Closing set forth in Section 3 of this Agreement. Notwithstanding the Existing Events of Default, the Borrower and Guarantor Parties shall comply with all covenants contained in the Loan Agreement and the other Loan Documents subject to the continuation of the Existing Events of Default; provided, that the Lender hereby consents to the Transfer of the Loan Collateral to the Designee and such Transfer shall not constitute a Default or Event of Default under the Loan Documents. Notwithstanding the foregoing, to the extent the Modesto Planning Department informs the Lender that any covenant contained in Section 4 of this Agreement constitutes “control” requiring thirty (30) day prior written consent from the Modesto Planning Department, the parties hereto agree that (i) upon written notice from the Lender such covenant shall be deemed to be of no force and effect until such thirty (30) day prior written notice from the Modesto Planning Department has been obtained, (ii) to the extent requested by the Lender in writing, the parties shall agree to amend this Agreement to remove or modify such covenant only to the extent required so as to not trigger such thirty (30) day prior written consent requirement, and (iii) solely to the extent the Lender elects in its sole discretion by written notice to the other parties, this Agreement shall be deemed terminated.
Prior to Closing As used herein, “Compensation” shall mean the direct salaries and wages and other aggregate compensation paid to or accrued for the benefit of any employee together with all fringe benefits payable to or accrued for the benefit of such employee as to which the employer is responsible, including, without limitation, employer contributions under F.I.C.A., fringe benefits, annual bonuses, unemployment compensation or other employment taxes, pension fund contributions, vacation pay, sick leave, worker’s compensation, group life and accidental and health premiums, and pension or profit sharing, retirement, disability and other similar benefits. Purchaser shall be responsible for and shall pay (i) all Compensation with respect to the operations of the Property on and after the date of Closing and (ii) all Compensation which is accrued but not payable as of the Closing and for which Purchaser is credited at Closing. For these purposes, vacation benefits, sick leave, annual bonuses and related payroll expenses of Hotel Employees (the “Supplemental Employee Expenses”) as of the Closing shall be treated as accrued and subject to proration solely (A) if vested and not subject to expiration if not used or termination in the event of the employee’s departure or (B) to the extent of 70% of any such accrued Supplemental Employee Expenses subject to later vesting or expiration if not used or termination in the event of the employee’s departure. With respect to accrued bonuses for 2006, Seller’s pro-rated share at Closing shall be based upon Operator’s reasonable estimate of the bonuses to be paid to such Hotel Employees for 2006. No later than March 31, 2007, or earlier upon the mutual agreement of the parties, the parties shall adjust Seller’s pro-rated share of the bonuses paid to the Hotel Employees for 2006 based upon the actual amounts of such bonuses (as shown by such supporting documentation as may be reasonably required by either party), and Purchaser or Seller, as the case may be, shall make such additional payment or refund as shall be required by such adjustment. Purchaser acknowledges that the New HMA shall initially afford the Hotel Employees continuation of all rights under Operator’s existing Section 401(k) plans and health care plans, as previously afforded under the Current HMA.
Operations Prior to Closing (a) Seller agrees to operate the Property between the Execution Date and the Closing Date in the same general manner as Seller has operated the Property during the immediately preceding six (6) month period, paying all costs and expenses as they come due, and in any event prior to Closing, and maintaining all insurance coverage currently in force.
(b) Seller shall comply with all of the obligations of landlord under the Leases and all other agreements and contractual arrangements affecting the Real Property by which Seller is bound or to which the Real Property, or any of them, are subject, and which will be binding upon Buyer or a lien upon such Real Property, after the Closing.
(c) Seller shall notify Buyer promptly of Seller's receipt of any notice from any party alleging that Seller is in default of its obligations under any of the Leases or any Permit or agreement affecting the Real Property, or any portion or portions thereof.
(d) No contract for or on behalf of or affecting the Real Property shall be negotiated or entered into which cannot be terminated by Seller upon the Closing without the payment of a specific charge, cost, penalty or premium for such termination.
(e) Except with the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delay, Seller shall not enter into any new leases for any portion of the Real Property. Any new lease shall be on Buyer's customary form (which may vary to reflect customary negotiated revisions thereto), or such other form which is reasonably acceptable to Buyer. Further, except with the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delay, or as set forth above, Seller shall not amend, extend (except where required under the terms of the Lease in question), terminate (except by reason of a tenant's default), accept surrender of, or permit any assignments or subleases of, any of the Leases (except as may be required under such Lease), nor accept any rental more than one (1) month in advance (exclusive of any security deposit).
(f) Seller shall not make or permit to be made any capital improvements or additions to the Real Property, or any portion thereof, without the prior written consent of Buyer, except those made by Seller pursuant to the express requirements of this Agreement, those made by tenants pursuant to the right to do so under their Leases, or by Seller if required by applicable law or ordinance, or as required under any Lease.
(g) Seller shall timely xxxx all tenants for all rent billable under Leases, and use commercially reasonable efforts to collect any rent in arrears.
(h) Seller shall notify Buyer of any tax assessment disputes (pending or threatened) prior to Closing, and from and after the Due Diligence Expiration Date, Seller not agree to any changes in the real estate tax assessment, nor settle, withdraw or otherwise compromise any pending claims with respect to tax assessments relating to the current or any subsequent year, without Buyer's prior written consent, which shall not be unreasonably withheld, delayed or conditioned. If any proceedings shall result in any reduction of assessment and/or tax for the tax year in which the Closing occurs, it is agreed that the amount of tax savings or refund for such tax year, less the reasonable fees and disbursements in connection with such proceedings, shall be apportioned between the parties as of the date real estate taxes are apportioned under this Agreement. All refunds relating to any tax year prior to the Closing shall be the sole property of Seller, and all refunds relating to any year subsequent to the year in which Closing occurs shall be the sole property of Buyer. Each party agrees to promptly remit to the other any refund received by it which is the property of the other.
(i) Seller shall notify Buyer promptly of the occurrence of any of the following:
(i) Receipt of notice from any governmental or quasi-governmental agency or authority or insurance underwriter relating to the condition, use or occupancy of the Real Property, or any portion thereof;
(ii) Receipt of any notice of default from any tenant or from the holder of any lien or security interest in or encumbering the Real Property, or any portion thereof;
(iii) Notice of any actual or threatened litigation against Seller or affecting or relating to the Real Property, or any portion thereof which may materially and adversely affect the Real Property or Seller's ability to consummate the transactions contemplated by this Agreement; and
(iv) Vacancy of any demised Property by a tenant, other than in accordance with a scheduled lease termination.
Third Party Consents and Certificates All Parties agree to cooperate with each other in order to obtain any required third party consents to this Agreement and the transactions herein contemplated.
Consents and Approvals of Third Parties Mid Penn shall use commercially reasonable efforts to obtain as soon as practicable all consents and approvals necessary or desirable for the consummation of the transactions contemplated by this Agreement.
Conduct of Business Prior to the Closing (a) Without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, except (x) as otherwise contemplated by this Agreement, the Closing Agreements or the Restructuring, (y) as disclosed on Section 5.1 of the Seller Disclosure Schedule or (z) as required by Law or Order, during the Pre-Closing Period, Seller shall cause the Sold Companies to conduct their businesses (other than in respect of the Legacy Defense Business, which shall not be subject to this Section 5.1(a)) in the ordinary course of business and, to the extent consistent therewith, use commercially reasonable efforts to maintain satisfactory relationships with suppliers, customers, and other third parties having material business relationships with the Sold Companies (other than in respect of the Legacy Defense Business, which shall not be subject to this Section 5.1(a)).
(b) In furtherance of Section 5.1(a), without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, except (x) as otherwise contemplated by this Agreement, the Closing Agreements or the Restructuring, (y) as disclosed on Section 5.1 of the Seller Disclosure Schedule or (z) as required by Law or Order, during the Pre-Closing Period, Seller shall cause each Sold Company (other than in respect of any actions relating to the Legacy Defense Business, which shall not be subject to this Section 5.1(b)) not to (and in the case of Section 5.1(b)(ii)(B), Seller shall not):
(i) amend its certificate of incorporation or bylaws or comparable organizational documents;
(ii) (A) issue, deliver, sell, pledge, dispose of or encumber any shares of capital stock or other ownership interests, or any options, warrants, convertible securities or other rights of any kind to acquire or receive any shares of capital stock or other ownership interests, in the Sold Companies, or (B) issue or grant any Seller Options;
(iii) reclassify, combine, split, subdivide, redeem, purchase or otherwise acquire any shares of capital stock or ownership interests;
(iv) (A) incur any obligations or commitments to make any capital expenditures in excess of $250,000 in the aggregate following the Closing, or (B) cease to continue to make capital expenditures in the ordinary course of business;
(v) with respect to Company Products, make any material change in the selling, distribution, advertising, terms of sale or collection practices outside of the ordinary course of business consistent with past practices;
(vi) after the close of business on the Business Day immediately preceding the Closing Date, declare, set aside, make or pay any dividend or other distribution in respect of the capital stock or other ownership interests of any of the Sold Companies or repurchase, redeem or otherwise acquire, or grant any rights or enter into any Contracts or commitments to repurchase, redeem or acquire, any outstanding shares of the capital stock or ownership interests of any of the Sold Companies;
(vii) acquire (whether by merger, consolidation or acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof or any assets, other than purchases of inventory and other assets in the ordinary course of business and pursuant to existing Contracts made available to Buyer prior to the date hereof;
(viii) sell, lease, license, assign, transfer or otherwise dispose of (whether by merger, consolidation or acquisition of stock or assets or otherwise) (A) any corporation, partnership or other business organization or division thereof or (B) any Inventory, equipment, assets, rights or properties (including Intellectual Property) for consideration in excess of $50,000, or abandon or allow to expire any issued patent or material registration or application included in the Company-Owned Intellectual Property, in each case, other than (w) sales or dispositions of Inventory and licenses of products and services, in each case, in the ordinary course of business, (x) pursuant to existing Contracts made available to Buyer prior to the date hereof, (y) non-exclusive licenses of Company-Owned Intellectual Property granted in the ordinary course of business as necessary to make available the Company Products or (z) sales of dispositions of obsolete and worthless assets or scrap;
(ix) sell, lease, license, assign, pledge transfer, abandon, permit any Lien on or otherwise dispose of any Company-Owned Intellectual Property used in or necessary for the operation of the businesses of the Sold Companies, other than (x) non-exclusive licenses of Company-Owned Intellectual Property granted in the ordinary course of business or (y) pursuant to existing Contracts made available to Buyer prior to the date hereof;
(x) modify, amend, terminate or waive any rights under any Material Contract in any material respect or enter into any new Contract that would be a Material Contract if entered into prior to the date of this Agreement;
(xi) acquire or obtain any license to any Intellectual Property or technology other than in the ordinary course of business (including commercially available computer software available or design tools on standard terms and in object-code form) for consideration not to exceed $100,000 in the aggregate;
(xii) permit the loss, expiration or termination of any material license or right to any third party Intellectual Property used in or necessary for the operation of the businesses of the Sold Companies other than in the ordinary course of business;
(xiii) agree to by any exclusivity, non-competition, most favored nation, or similar provision or covenant restricting the Sold Companies from competing in any line of business or with any Person or in any area or engaging in any activity or business (including with respect to the development, manufacture, marketing or distribution of their respective products or services);
(xiv) disclose any material trade secrets or other material proprietary or confidential information of the Sold Companies to any Person not subject to a confidentiality or non-disclosure agreement;
(xv) except in the ordinary course of business, make any loans, advances or capital contributions to, or investments in, any other Person (other than in a Subsidiary or sister Subsidiary of such Person);
(xvi) except to the extent required under any Company Benefit Plan or Seller Benefit Plan in existence as of the date hereof or as required by applicable Law: (A) hire or terminate (other than for cause) any Business Employee who holds (or, if hired, would hold) the position of “vice president”, “director”, “manager”, “senior engineer”, “executive” or any other individual in a salary grade of 07 or higher or any individual consultant of the Sold Companies, except with respect to individual consultants who perform services for any of the Sold Companies whose aggregate fees are less than $100,000, (B) increase or establish, or commit to increase or establish, the compensation or benefits of any Business Employee or individual consultant of the Sold Companies, (C) establish, adopt, enter into, amend in any material respect or terminate any Seller Benefit Plan or Company Benefit Plan, in each case, affecting any Business Employees, (D) accelerate the vesting or payment of any compensation or benefits under any Seller Benefit Plan or Company Benefit Plan, in each case, with respect to any Business Employees, or (E) grant any cash bonus, incentive, performance or other incentive compensation to any Business Employee;
