Conditions to Buyer’s Obligations. Buyer’s obligation to consummate the transactions contemplated hereby in connection with the Closing is subject to satisfaction or waiver of the following conditions: (i) the representations and warranties set forth in Section 22.a) shall have been true and correct on the date hereof and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein; (ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects; (iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances; (iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date; (v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and (vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II).
Appears in 3 contracts
Sources: Lease Sale Agreement, Lease Sale Agreement, Lease Sale Agreement
Conditions to Buyer’s Obligations. Buyer’s 's obligation to consummate pay the transactions contemplated hereby Purchase Price, and to accept title to each Property, shall be subject to compliance by Seller with the following conditions precedent on and as of the date of Closing:
(a) Possession of each Property shall be delivered to Buyer free and clear of all liens and encumbrances other than the Permitted Exceptions and the applicable Lease;
(b) Seller shall deliver to Buyer on or before the Closing the items set forth in Section 10 above;
(c) Buyer shall receive from the Title Insurer or any other title insurer approved by Buyer in its judgment and discretion, a current ALTA owner's form of title insurance policy, or irrevocable and unconditional binder to issue the same, with extended coverage for the applicable Real Property in the amount of the Purchase Price as allocated in this Agreement, dated, or updated to, the date of the Closing, insuring, or committing to insure, at its ordinary premium rates Buyer's good and marketable title in fee simple to such Real Property and otherwise in such form and with such endorsements as provided in the title commitment approved by Buyer pursuant to Section 6 hereof and subject only to the Permitted Exceptions;
(d) Buyer shall have received a valid and permanent final certificate of occupancy (or the equivalent thereof) for each Property and Tenant (to the extent required by applicable law);
(e) Buyer shall have received the Tenant Estoppel and SNDA for each applicable Lease duly executed by Tenant, and with respect to each SNDA, duly executed by Seller and acknowledged by a notary public;
(f) Keys to all locks located in each Property, if applicable;
(g) An original copy of the Lease and any amendments thereto (including, without limitation, a Lease Modification Agreement wherein Tenant confirms the commencement date of the Lease);
(h) An original (or a copy if an original is not available) of any and all warranties issued to Seller in connection with the Closing is subject to satisfaction or waiver construction of the following conditions:Improvements, it being agreed that in the event such warranties are not assignable to Buyer, Seller shall have such warranties re-issued to Buyer or Tenant, as requested by Buyer;
(i) the representations A certificate of property insurance and warranties set forth in Section 22.a) shall have been true and correct on the date hereof and of liability insurance from Dollar General naming Buyer as of the Closing (except to the extent expressly made as of an earlier dateadditional insured, in which case as of such date as if made at and as of such date), except where compliance with the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been deliveredLease; and
(vij) The Delivery Date and Commencement Date (as such terms are defined in the Lease) shall have occurred under the applicable Lease and Tenant shall be open and operating for business to the public in substantially all of the applicable leased space and Tenant shall be paying full and unabated rent under such Lease;
(k) All obligations of Seller under a Lease with respect to Tenant's initial occupancy thereof shall deliver have been completed and/or satisfied, including, without limitation, satisfying the Leased Premises Evidence of Completion (as defined in vacantthe Lease), broom clean condition with completing any punchlist items and paying any tenant allowances;
(1) Buyer shall have received copies of all FF&E, (including without limitation final lien waivers from the Computer general contractor and Security Equipment, as specifically set forth in Schedule II).all subcontractors performing work or providing materials or services to a the Property; and
Appears in 2 contracts
Sources: Agreement for Purchase and Sale of Real Property, Purchase and Sale Agreement (American Realty Capital Trust V, Inc.)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with complete the Closing is subject to the satisfaction or waiver (in the sole discretion of Buyer) of each of the following conditions:
(ia) each of the representations and warranties set forth of Seller and/or Parent contained in Section 22.a) shall have been this Agreement that are qualified by materiality will be true and correct in all respects and each of the representations and warranties of Seller and/or Parent that are not so qualified will be true and correct in all material respects, in each case, as if such representations or warranties were made on and as of the date hereof Agreement Date and as of the Closing Date (except to the extent expressly made such representations and warranties speak as of an earlier datea specific date or as of the Agreement Date, in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to will be so true and correct or so true and correct in all material respects, as the case may be, as of such specific date or as of the Agreement Date, respectively);
(b) Seller and Parent will have performed, satisfied and complied in all material respects with all covenants and agreements required to be performed by them at or prior to the Closing by this Agreement;
(c) since the Agreement Date, there has been no change, event or condition of any character (whether or not covered by insurance) that, individually or in the aggregate, has had and or would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinMaterial Adverse Effect;
(iid) Seller shall have performed receipt of the Title Commitment and complied with its covenants and agreements hereunder through evidence reasonably satisfactory to Buyer that the Closing issuer thereof is unconditionally prepared to issue a policy of title insurance as set forth in all material respectsthe Title Commitment;
(iiie) Seller’s title in and to Buyer will have received all of the Acquired Assets shall be goodcertificates, valid and marketable and free of all liens and encumbrances;
Required Consents (iv) or, to the extent that any Required Consent identified in Schedule 3.2(f) of the Seller becomes subject to a Chapter 11 Proceeding Disclosure Schedules (other than the Consent identified as item 1 therein) shall not have been obtained on or prior to the Closing DateClosing, (1) Seller shall retain and continue to hold the bankruptcy court shall have entered an order, Contract to which such Required Consent related and ensure that Buyer receives the full benefits of the provisions of such Contract for the duration of its term in a form and substance satisfactory to Buyer and Seller (the “Sale Order”accordance with Section 1.5), (A) approving this Agreement approvals and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be other documents specified in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered3.2; and
(vif) Seller EBITDA for the twelve 12 calendar month period ending April 30, 2018 shall deliver the Leased Premises have been at least $1,716,000 as reflected in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)Seller’s internal unaudited financial statements.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Nevada Gold & Casinos Inc)
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate If the transactions contemplated hereby in connection Closing does not take place simultaneously with the execution of this Agreement, the obligations of the Buyer at the Closing is will be subject to satisfaction or waiver of the following conditions:conditions (any or all of which may be waived by the Buyer):
(ia) the The representations and warranties set forth of each of the Sellers contained in Section 22.a) shall have been this Agreement will, except as contemplated by this Agreement, be true and correct on the date hereof and as of the Closing in all material respects (except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of such that representations and warranties which are qualified as to materiality or as to absence of Material Adverse Effect will be so true and correct has not had in all respects) at the Closing Date with the same effect as though made on that date, and would not reasonably be expected each of the Sellers will have delivered to have the Buyer a material adverse effect on certificate dated the condition Closing Date and signed by the Seller, or an officer or other authorized signatory of Acquired Assets the Seller, as a whole or on the ability of Seller applicable, to consummate the transactions contemplated herein;that effect.
(iib) Seller shall Each of the Sellers will have performed and complied with its covenants and agreements hereunder through the Closing fulfilled in all material respects;respects all its or his obligations under this Agreement required to have been fulfilled prior to or at the Closing.
(iiic) Seller’s title No order will have been entered by any court or governmental authority and be in force which invalidates this Agreement or restrains Lennar or the Buyer from completing the transactions which are the subject of this Agreement and no action will be pending against Lennar, the Buyer or the Company relating to the transactions which are the subject of this Agreement which presents a reasonable likelihood of resulting in an award of damages against Lennar, the Buyer or the Company which would be material in relationship to the aggregate price being paid by the Buyer for the Prometheus Securities and the Short Securities, or would be material to the Company and its subsidiaries taken as a whole.
(d) The Company will have executed the Merger Agreement and the Merger Agreement will be in full force and effect.
(e) The Company will have executed an agreement to sell its operations in Texas known as Wilshire Homes for at least $23 million not later than June 26, 2002, and the purchaser will have placed in escrow a deposit of at least $1,500,000 with regard to that sale which is not refundable under any circumstances, other than because of a material breach of warranty by the Company or a failure of the Company to fulfill its obligations in a material respect.
(f) GCH, Inc. (formerly named Genessee Custom Homes, Inc.) will have delivered to The Genessee Company and to the Acquired Assets shall be good, valid and marketable and free Company an executed Indemnification Agreement in the form of all liens and encumbrances;Exhibit 5.1-F.
(ivg) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the The Closing DateDate will be not later than July 31, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)2002.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Fortress Group Inc), Securities Purchase Agreement (Lazard Freres Real Estate Investors LLC)
Conditions to Buyer’s Obligations. The Close of Escrow and Buyer’s 's obligation to consummate the transactions transaction contemplated hereby in connection with the Closing is by this Agreement are subject to the satisfaction or waiver of the following conditions for Buyer's benefit (or Buyer's waiver thereof, it being agreed that Buyer may waive any or all of such conditions) on or prior to the Closing Date or on the dates designated below for the satisfaction of such conditions:
(ia) the All of Seller's representations and warranties set forth in Section 22.a) contained herein shall have been be true and correct on in all material respects as of the date hereof of this Agreement and as of the Closing (except Date, subject to the extent expressly any qualifications hereafter made to any of Seller's representations as of an earlier date, provided for in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinSECTION 11.1 hereof;
(iib) As of the Closing Date, Seller shall have performed its respective obligations hereunder and complied with its covenants and agreements hereunder through the Closing in all material respectsdeliveries to be made at Close of Escrow by Seller shall have been tendered;
(iiic) There shall exist no actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against Seller that would materially and adversely affect Seller’s title in and 's ability to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesperform its respective obligations under this Agreement;
(ivd) There shall exist no pending or threatened action, suit or proceeding with respect to Seller before or by any court or administrative agency which seeks to restrain or prohibit, or to obtain damages or a discovery order with respect to, this Agreement or the extent that Seller becomes subject to a Chapter 11 Proceeding consummation of the transaction contemplated hereby; and
(e) No less than five (5) business days prior to the Closing Date, (1) the bankruptcy court Seller shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying delivered or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) caused to be delivered to Buyer Buyer, with respect to the Real Property, a Tenant Estoppel Certificate from the tenant under the Lease, which estoppel certificate shall have been delivered; and
(vi) Seller shall deliver be consistent with the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically information set forth in Schedule II)the Rent Roll. If, notwithstanding the nonsatisfaction of any such condition, the Close of Escrow occurs, there shall be no liability on the part of Seller for breaches of representations and warranties of which Buyer had knowledge as of the Close of Escrow.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Behringer Harvard Mid Term Value Enhancement Fund I Lp), Purchase and Sale Agreement (Behringer Harvard Mid Term Value Enhancement Fund I Lp)
Conditions to Buyer’s Obligations. Buyer’s obligation The obligations of Buyer to consummate effect the transactions contemplated hereby in connection with shall be subject to the fulfillment, on or prior to the Closing is subject to satisfaction or waiver Date, of each of the following conditions, any one or more of which may be waived in writing by Buyer in whole or in part:
(ia) each of the representations and warranties set forth of Seller contained in Section 22.athis Agreement, (i) to the extent qualified by materiality, shall have been be true and correct on and (ii) to the date hereof extent not qualified by materiality, shall be true and correct in all material respects, when made and as of the Closing Date, with the same effect as though such representations and warranties had been made on and as of the Closing Date (except to the extent expressly (x) that representations and warranties that are made as of an earlier date, in which case as of such a specific date as if made at need be true and correct only as of such date), except where ; and (y) as contemplated or permitted by this Agreement to change between the failure date of such representations this Agreement and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinClosing Date;
(iib) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in respects with all agreements, covenants, obligations and conditions required by this Agreement to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that performed or complied with by Seller becomes subject to a Chapter 11 Proceeding at or prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(vc) each delivery contemplated by Section 11(a) to be Seller shall have delivered to Buyer a certificate dated as of the Closing Date signed by Seller in form reasonably satisfactory to Buyer, confirming the satisfaction in all respects of the conditions contained in paragraphs (a) through (b) of this Section 6.1;
(d) the parties hereto shall have been delivered; andmade and obtained all Governmental Consents set forth in Section 6.1(d) of the Company Disclosure Schedule;
(vie) Seller shall deliver have delivered to Buyer evidence that upon payment of the Leased Premises Aggregate Cash Consideration, Seller shall provide Buyer with the Financial Releases;
(f) Seller shall have delivered to Buyer a duly completed and executed certification of non-foreign status pursuant to Section 1.1445-2(b)(2) of the Treasury regulations in vacanta form reasonably satisfactory to Buyer;
(g) Seller shall have duly executed and delivered to Buyer the Distribution Agreement, broom clean condition with all FF&Esubstantially in the form of Exhibit A attached hereto;
(h) Buyer shall have received an opinion of Dechert LLP, counsel to Seller, in substantially the form of Exhibit B attached hereto;
(including without limitation i) Seller shall have obtained the Computer and Security Equipment, as specifically set forth in Schedule II).consent of each Person whose consent is required under Section 6.1(i) of the Company Disclosure Schedule;
Appears in 2 contracts
Sources: Stock Purchase Agreement (Royster-Clark Inc), Stock Purchase Agreement (Rentech Inc /Co/)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction or waiver of the following conditionsconditions as of the Closing Date:
(ia) The representations and warranties of Seller contained herein (other than the representations and warranties set forth of Seller contained in Section 22.aSections 3.01, 3.02, and 3.17) shall have been be true and correct except where the failure to be true and correct would not cause a Material Adverse Effect, individually or in the aggregate, (it being understood that for the sole purpose of determining whether there has been a Material Adverse Effect as a result of any inaccuracy of a representation or warranty of Seller, such representations and warranties shall be read as if they were not qualified by “materiality” or “Material Adverse Effect” or words of similar import), in each case on the date hereof and as of the Closing (except Date with the same effect as though made on and as of the Closing Date, except, in each case, to the extent expressly that any such representations and warranties were made as of an earlier date, in which case as of such a specified date as if made at and as of to such date), representations and warranties the same shall continue on the Closing Date to have been true (except where the failure to be true would not cause a Material Adverse Effect, individually or in the aggregate) as of the specified date. The representations and warranties of Seller contained in Sections 3.01, 3.02, and 3.17 shall be true and correct in all material respects on and as of the Closing Date, except, in each case, to the extent that any such representations and warranties were made as of a specified date and as to be so true such representations and correct has not had and would not reasonably be expected warranties the same shall continue on the Closing Date to have a been true in all material adverse effect on respects as of the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinspecified date;
(iib) Seller shall will have performed and complied with its in all material respects all of the covenants and agreements hereunder through required to be performed by it under this Agreement at or prior to the Closing in all material respectsClosing;
(iiic) Seller will have delivered to Buyer a certificate of Seller executed by a duly authorized officer of Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to dated the Closing Date, (1stating that the preconditions specified in Section 2.02(a) the bankruptcy court shall and Section 2.02(b) have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Datebeen satisfied;
(vd) each delivery contemplated by Section 11(aFrom the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect;
(e) Seller will have delivered to Buyer the items required to be delivered to Buyer shall have been delivered; and
(vi) by Seller shall deliver the Leased Premises in vacant, broom clean condition accordance with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule IISection 1.07(a).
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Peabody Energy Corp)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate purchase the transactions contemplated hereby in connection with the Applicable Repurchase Shares for any Closing at such Closing is subject to the satisfaction (or waiver by Buyer) at or prior to such Closing of each of the following conditions:
(ia) the representations Each representation and warranties set forth warranty made by Seller in Section 22.a) 4 below shall have been be true and correct on the date hereof and as of the such Closing as though made as of such Closing (except to the extent other than any representation or warranty that is expressly made as of an earlier a particular date, in which case as of such date as if made at shall be true and correct as of such date).
(b) All covenants, except where the failure of such representations agreements and warranties conditions contained in this Agreement to be so true and correct has not had and would not reasonably be expected performed or complied with by Seller at or prior to such Closing shall have a material adverse effect on the condition of Acquired Assets as a whole been performed or on the ability of Seller to consummate the transactions contemplated herein;complied with by Seller.
(i) A fiscal quarter of Buyer shall have been completed since (x) in the case of the initial Closing, the date of this Agreement or (y) in the case of any subsequent Closing, the prior Closing and (ii) Buyer shall have made “public disclosure” (as defined in Rule 101(e) of Regulation FD promulgated by the U.S. Securities and Exchange Commission (the “SEC”)) of the number of shares of Series C Common Stock repurchased by Buyer pursuant to the Share Repurchase Program during such fiscal quarter, in accordance with Buyer’s ordinary financial reporting practices.
(d) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and delivered to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, Buyer at least one (1) business day prior to such Closing: (i) wire transfer instructions for the bankruptcy court payment of the Purchase Price to be paid by Buyer at such Closing; and (ii) two duly completed and executed original copies of Internal Revenue Service Form W-9 certifying that Seller is not subject to backup withholding in connection with the payment by Buyer of the Purchase Price for such Closing pursuant to this Agreement.
(e) Seller shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver one or more certificates representing the Leased Premises in vacantApplicable Repurchase Shares for such Closing, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipmentduly endorsed by Seller, as specifically set forth in Schedule IIapplicable (or accompanied by duly executed stock powers).
Appears in 2 contracts
Sources: Share Repurchase Agreement (Newhouse Broadcasting Corp), Share Repurchase Agreement (Discovery Communications, Inc.)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction or waiver of the following conditionsconditions on or before (with satisfaction continuing on) the Closing Date:
(ia) the The representations and warranties set forth in Section 22.a) Article 4 hereof, both individually and considered as a whole, which are qualified as to materiality shall be true and correct in all respects and such representations and warranties that are not so qualified shall be true and correct in all material respects at and as of the Closing Date, except for those warranties and representations that were given as of a specific date, in which event such warranties and representations shall have been true and correct on the date hereof and in all material respects or, if qualified as of the Closing (except to the extent expressly made as of an earlier datemateriality, in which case as of such date as if made at and all respects, as of such date), except where .
(b) Seller will have performed in all material respects all of the failure of such representations covenants and warranties agreements required to be so true performed by it under this Agreement which are to be performed prior to the Closing, and correct has not had Seller shall have caused BGH Holdings, BRH Holdings and would not reasonably be expected the Companies to have a performed in all material respects all of the covenants and agreements required to be performed by them under this Agreement which are to be performed prior to the Closing.
(c) There will have been no material adverse effect on change in the condition operations, financial condition, operating results, assets or liabilities of Acquired Assets BGH Holdings, BRH Holdings or the Companies, all taken as a whole, and there will have been no material casualty loss or damage to the assets of the Companies all taken as a whole (whether or on not covered by insurance).
(d) Those consents, approvals, or other actions by third parties that are required for the ability consummation of Seller to consummate the transactions contemplated hereinhereby which are set forth on Schedule 2.01(d) will have been obtained.
(e) All governmental approvals required for the consummation of the transactions contemplated hereby shall have been obtained and all filings required pursuant to any applicable law or regulation, including pursuant to the HSR Act, will have been made and any approvals required thereunder will have been obtained, or any waiting period required thereby will have expired or have been terminated, as the case may be.
(f) No action or proceeding by or before any court or governmental or administrative body or agency will be pending wherein a judgment, decree or order might be issued that would prevent any of the transactions contemplated or cause such transactions to be declared unlawful or rescinded.
(g) On the Closing Date, Seller will have delivered to Buyer the following:
(i) A certificate dated the Closing Date executed by the President or a Vice President of Seller stating that the preconditions specified in subsections (a), (b) and (c) hereof have been satisfied;
(ii) Seller shall have performed Good standing certificates for Holdings and complied with its covenants and agreements hereunder through each of the Closing in all material respects;
Companies from their states of organization, dated not earlier than five (iii5) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding business days prior to the Closing Date; (iii) Certified copies of the resolutions duly adopted by Seller's board of directors authorizing the execution, (1) the bankruptcy court shall have entered an order, in a form delivery and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving performance of this Agreement and all the other agreements contemplated hereby; (iv) The written resignations of the terms and conditions hereofdirectors of BGH Holdings, BRH Holdings, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to BuyerCompanies and the written resignations of such officers of BGH Holdings, BRH Holdings and (2) no order stayingof the Companies who are not employees of BGH Holdings, reversing, modifying BRH Holdings or amending the Sale Order shall be in effect on the Closing Date;
Companies; (v) The minute books, stock records and stock ledgers of BGH Holdings, BRH Holdings and each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been deliveredof the Companies; and
(vi) An affidavit stating, under penalties of perjury, that neither BGH Holdings, BRH Holdings nor any of the Companies is or has ever been a United States Real Property Holding Corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(h) Seller shall deliver have delivered to Buyer, at Seller's sole expense, ALTA title insurance binders or commitments (collectively, the Leased Premises "Title Commitments," and each a "Title Commitment"), in vacantfinal form, broom clean condition from Chicago Title Insurance Company or such other companies reasonably acceptable to Buyer (collectively, the "Title Company"), committing the Title Company to issuing ALTA form of title insurance policies insuring the relevant Company's fee title to each parcel of the Owned Real Estate in the respective amounts listed on Schedule 2.01(h) which amounts are equal to the current fair market values of each of such parcels, subject to no Liens or exceptions to title other than the Permitted Exceptions and the so-called standard or pre- printed exceptions (collectively, the "Title Polices"); provided that the commitment of the Title Company to issue the Title Policies may be subject to and the Title Commitments may set forth or be subject to such standard requirements relating to the issuance of final policies of title insurance as are reasonably acceptable to Buyer, including a requirement that Buyer pay the Title Company's premiums and other charges for the issuance of the Title Policies. Each of the Title Commitments shall be effective as of a date occurring not earlier than the date of the execution of this Agreement and, if required by Buyer, the effective dates of each of the Title Commitments shall be brought down to the Closing Date, provided that Buyer provides Seller with all FF&Ewritten notice thereof at least two weeks prior to the Closing Date. If required in connecting with the Financing, Seller shall and shall cause BGH Holdings, BRH Holdings and the Companies, at no cost to BGH Holdings, BRH Holdings or the Companies, to reasonably cooperate with Buyer as may be reasonably necessary to cause the Title Company to issue Title Commitments for extended form title insurance coverage deleting or insuring over those so-called standard or pre-printed exceptions. Buyer acknowledges that the Title Company may raise additional exceptions in connection with deleting or insuring over of such exceptions.
(including without limitation i) Buyer, Seller and SFFC will have entered into that certain Accounts Receivable Purchase Agreement and the Computer transaction contemplated thereby will be positioned to close simultaneously with the closing of the transaction contemplated by this Agreement.
(j) Buyer shall have received copies of releases releasing each security interest set forth on Schedule 4.14 which is not to be in existence as of Closing, and Security Equipmentreleases or discharges of record with respect to the BONY Mortgage Documents and the San-Del Mortgages, as specifically such terms are defined in Schedule 4.15 of the BGH Holdings and B&G Companies disclosure schedules attached to this Agreement.
(k) Buyer shall have received the duly executed Estoppel Certificates from the landlords under each of the Leases identified on Schedule 2.01(d), dated after the date of this Agreement, and shall have received the Lessor Consents identified on Schedule 2.01(d).
(l) All proceedings to be taken by Seller and all documents required to be delivered by Seller in connection with the transactions contemplated hereby will be reasonably satisfactory in form and substance to Buyer.
(m) On or prior to 5:00 p.m., Eastern Standard Time, on the 30th day following the date of this Agreement, Buyer shall have either (i) completed its arrangements for the Financing and received the proceeds therefrom, or (ii) delivered to Seller the Letter of Credit or Cash Contribution.
(n) A certificate from Seller, under penalties of perjury, stating that none of Seller BGH Holdings, BRH Holdings or any of the Companies is a foreign corporation, foreign partnership, foreign trust or foreign estate and listing both the U.S. Employer Identification Number and principal business office address of each of Seller, BGH Holdings, BRH Holdings and the Companies. Any condition specified in this Section 2.01 may be waived by Buyer, provided that no such waiver will be effective unless it is set forth in Schedule II)a writing executed by Buyer.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Specialty Foods Corp), Stock Purchase Agreement (Specialty Foods Acquisition Corp)
Conditions to Buyer’s Obligations. Buyer’s obligation The obligations of --------------------------------- Buyer to consummate the transactions contemplated hereby in connection with the Closing is Stock Purchase shall be subject to satisfaction or waiver of the following conditions, any of which may be waived in writing by Buyer:
(ia) Each of the representations and warranties of each of Seller and the Company set forth in Section 22.a) this Agreement shall have been be true and correct on in all respects as of the date hereof of this Agreement and (except to the extent such representation and warranty speaks as of an earlier date) as of the Closing Date as though made on and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date)Date, except where the failure or failures of such representations and or warranties to be so true and correct has not had and would not reasonably be expected to have have, in the aggregate, a material adverse effect on Company Material Adverse Effect; provided, -------- however, that for purposes of determining the satisfaction of the condition of Acquired Assets as ------- contained in this Section 7.2(a), no effect shall be given to any exception or qualification in such representations and warranties relating to materiality or a whole or on the ability of Seller to consummate the transactions contemplated hereinCompany Material Adverse Effect;
(iib) Seller and the Company shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in respects with each agreement, covenant, obligation and condition required by this Agreement to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding performed or complied with by them at or prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(vc) each delivery contemplated by Section 11(a) to be Seller and the Company shall have delivered to Buyer a certificate, dated as of the Closing Date, signed on behalf of Seller by an Executive Vice President and signed on behalf of the Company by its President and a Senior Vice President confirming the satisfaction of the conditions contained in paragraphs (a) and (b) of this Section 7.2;
(d) Seller and the Company shall have been deliveredobtained all required third- party consents or approvals under any Contract in connection with the Stock Purchase, the Merger and consummation of the transactions contemplated under this Agreement, except as would not have, in the aggregate, a Company Material Adverse Effect or a Buyer Material Adverse Effect; and
(vie) If Seller shall deliver have made a Qualifying Purchase Commitment, then Seller and the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation Company shall have completed the Computer and Security Equipment, transactions contemplated by such Qualifying Purchase Commitment effective as specifically set forth in Schedule II)of the Closing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Commercial Federal Corp), Stock Purchase Agreement (Commercial Federal Corp)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer hereunder to consummate purchase the transactions contemplated hereby in connection with the Closing Property from Seller is subject to satisfaction the satisfaction, at or waiver prior to the Closing, of each of the following conditions:conditions (any of which may be waived in whole or in part by Buyer at or prior to the Closing):
(ia) Seller shall have performed, observed and complied with all of the covenants, agreements and conditions required by this Agreement to be performed, observed and complied with by it prior to or as of the Closing.
(b) All of the representations and warranties of Seller set forth in Section 22.a) this Agreement shall have been be true and correct on the date hereof and as of the Closing (except to in all material respects as though such representations and the extent expressly made as of an earlier date, statements contained in which case as of such date as if this Agreement were made at and as of such date), except where the failure of such representations Closing.
(c) All instruments and warranties documents required on Seller's part to be so true effectuate this Agreement and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;herein shall be reasonably satisfactory to Buyer and its attorneys.
(iid) Seller will convey to Buyer good, insurable, indefeasible and marketable fee simple title to the Property, free and clear of all mortgages, liens, encumbrances, restrictions, rights-of-way, easements, judgments and other matters affecting title subject to existing restrictions of record.
(e) Buyer shall have obtained reasonable and appropriate financing for the transactions contemplated hereunder in Buyer’s sole and absolute discretion.
(f) There shall not have been any change in zoning, title, survey matters or other matters affecting the Property that would interfere with the use of the Property as a retail site or affect the marketability of title.
(g) All title objections and survey objections set forth in objection notices, which Buyer shall not otherwise have elected to waive in writing, shall have been cured; provided, if Buyer elects to close hereunder with such objection having not been cured, such objections shall be deemed to have been waived by Buyer.
(h) Seller shall have performed maintained in full force and complied with its covenants effect insurance against loss or damage by fire and agreements hereunder through the Closing such other hazards as are customarily covered by extended coverage endorsements in all material respects;an amount sufficient to prevent Seller from becoming a co-insurer of any loss or damage.
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vii) Seller shall deliver not enter into any contracts and agreements relating to the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation management and operation of the Computer and Security Equipment, as specifically set forth in Schedule II)Property.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (ARC Group, Inc.)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in Section 22.a) shall have been true and correct on the date hereof and conditions as of the Closing Date:
(a) The representations and warranties of Seller and the Company contained in Article III and Article IV shall be true and correct in all material respects as of the Closing Date as if made as of such date (except to the extent any such representation and warranty expressly made as of relates to an earlier date, date (in which case as of such date as if made at and as of such earlier date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein);
(iib) Seller shall have performed and complied with its The covenants and agreements hereunder through of the Company and Seller required to be performed by them under this Agreement at or prior to the Closing shall have been so performed in all material respects;
(c) The proceeds of debt financing in an amount equal to at least $200 million on terms and conditions (i) with respect to pricing (e.g., interest, fees, charges), not less favorable and (ii) with respect to all other material terms, not materially less favorable, than the terms and conditions set forth in the Bridge Loans Commitment Letter with respect to the Bridge Loans (after giving effect to any provisions relating to “market flex” or similar provisions affecting the structure, pricing, maturity, amortization or any other terms with respect to the financing contemplated by the Debt Commitment Letters) shall have been received by, or shall be fully available to, Buyer and all of the conditions to initial funding of the Revolver Loans set forth in the Revolver Commitment Letter shall be satisfied or upon Closing would be satisfied; provided that the condition set forth in this Section 2.02(c) shall be deemed to be satisfied and Buyer shall have no right to rely on this Section 2.02(c) if such proceeds have not been received by or are not available to Buyer as a result of (x) the failure of CHS V to provide the equity financing contemplated by the Equity Commitment Letter (provided that the conditions set forth therein are or are deemed satisfied) or (y) any action or inaction within the control of Buyer or its Affiliates (and not in any way dependent upon the actions or inactions of any Person that Buyer or its Affiliates do not control, except to the extent any such non-controlled Person is willing to (but for actions or inactions by Buyer or its Affiliates) satisfy requests that such non-controlled Person take, or refrain from taking, such actions or inactions, as applicable) that has prevented satisfaction of any condition set forth in the Debt Commitment Letters;
(d) The management services agreement, dated August 30, 2007, by and among Audax, the Company, Thermon Manufacturing Company and Thermon Canada, Inc. being terminated on the Closing Date pursuant to a written termination agreement in the form attached hereto as Exhibit A, duly executed by the parties thereto;
(e) The Company shall have obtained and delivered to Buyer written consents or approvals from the Persons specified on Conditions to Buyer’s Obligations Schedule and each such consent and approval shall be in form and substance reasonably satisfactory to Buyer;
(f) The Senior Executive Agreements shall be in full force and effect as of the Closing and shall not have been repudiated or materially breached by any of the Senior Executives;
(g) Since the date hereof, there have been no material adverse changes with respect to any of the contracts set forth on the Key Contracts Schedule; provided that expiration of any such contract on its expiration date, if any, in accordance with its stated terms, or expiration upon completion or substantial completion of such contract shall not be deemed a material adverse change; provided, however, that cancellation or termination or notice of cancellation or termination of a contract before its expiration date, if any, or before completion or substantial completion of such contract will be deemed a material adverse effect;
(h) the insurance policies (including the declarations and endorsements thereto) in the form attached hereto as Exhibit B (collectively, the “Insurance Policies”) shall have been duly executed by the parties thereto and issued by Columbia Casualty Company, Lloyd’s Insurance and Aspen UK Insurance Limited and shall each be in full force and effect with such Insurance Policies (including the declarations and endorsements thereto) each having an effective date of the date hereof and a policy term of seven years from the date hereof, a limit of liability of $40.5 million and a total premium of $1,550,000 (plus applicable Taxes), of which 25.926% of such amount will be paid by Buyer at its sole cost and expense and the remainder will be paid as a Seller Transaction Expense;
(i) Seller shall have delivered to Buyer each of the following:
(i) a certificate of Seller executed by a duly authorized officer thereof, dated the Closing Date, stating that the preconditions specified in subsections (a) and (b) above as they relate to Seller have been satisfied;
(ii) a copy of the Escrow Agreement, duly executed by Seller and the Escrow Agent;
(iii) Seller’s title in and to a copy of the Acquired Assets shall be goodAudax Restrictive Covenant Agreement, valid and marketable and free of all liens and encumbrancesduly executed by Audax Fund II;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all a copy of the terms and conditions hereof, certificate of formation of Seller certified by the Secretary of State of Delaware and (B) approving and authorizing a certificate of good standing for Seller to consummate from the transactions contemplated hereinSecretary of State of Delaware, including the assumption and assignment dated within twenty (20) days of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each certified copies of the resolutions duly adopted by Seller’s board of managers and/or members authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby to which Seller is a party, and the consummation of all transactions contemplated hereby and thereby, in form and substance reasonably satisfactory to Buyer;
(vi) a certificate signed by Section 11(athe individual(s) signing this Agreement and any other agreement or certificate executed pursuant to be delivered this Agreement on behalf of Seller that such individual(s) is (are) duly authorized to Buyer shall have been deliveredexecute this Agreement and all such other agreements or certificates executed pursuant to this Agreement on behalf of Seller as an authorized officer or agent thereof, in form and substance reasonably satisfactory to Buyer; and
(vii) the stock certificate representing the Shares accompanied by a duly executed stock power.
(j) The Company shall have delivered to Buyer each of the following:
(i) a certificate of the Company executed by a duly authorized officer thereof, dated the Closing Date, stating that the preconditions specified in subsections (a) and (b) above as they relate to the Company have been satisfied;
(ii) certified copies of the resolutions duly adopted by the Company’s board of directors authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby to which the Company is a party, and the consummation of all transactions contemplated hereby and thereby, in form and substance reasonably satisfactory to Buyer;
(iii) (A) a copy of the certificate of incorporation of the Company certified by the Secretary of State of Delaware and (B) a certificate of good standing for the Company from the Secretary of State of Delaware, dated within twenty (20) days of the Closing Date;
(iv) (A) a certified copy of the certificate or articles of incorporation or equivalent organizational document of each Subsidiary of the Company and (B) where such document is generally available, a certificate of good standing or equivalent certificate from the jurisdiction in which each Subsidiary of the Company was incorporated or formed, in each case, dated within twenty (20) days of the Closing Date;
(v) a certificate signed by the individual(s) signing this Agreement and any other agreement or certificate executed pursuant to this Agreement on behalf of the Company that such individual(s) is (are) duly authorized to execute this Agreement and all such other agreements or certificates executed pursuant to this Agreement on behalf of the Company as an authorized officer or agent thereof, in form and substance reasonably satisfactory to Buyer;
(vi) Seller shall deliver a FIRPTA certificate in the Leased Premises in vacantform attached hereto as Exhibit C executed by the Company, broom clean condition with all FF&Ecertifying as to the facts that exempt the transactions contemplated hereby from withholding under Section 1445 of the Code; and
(vii) (A) payoff letter(s) for the Company Senior Debt, (including without limitation B) final invoices for all unpaid Seller Transaction Expenses and (C) customary payoff letters from each holder of Indebtedness identified on the Computer Indebtedness Pay-Off Schedule (collectively, the “Payoff Documents”), all such Payoff Documents being in form and Security Equipment, as specifically set forth in Schedule II)substance reasonably satisfactory to Buyer and its lenders.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Thermon Holding Corp.)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with by this Agreement shall be subject to the fulfillment at or prior to the Closing is subject to satisfaction or waiver of each of the following conditions, unless waived by such Party at or prior to the Closing:
(i) the representations and warranties set forth in Section 22.a) Sellers shall have been true and correct delivered the certificates representing the POMI Shares, together with duly executed instruments of assignment separate from certificate to the Buyer, together with such other documents as may be necessary for the transfer of record ownership of the POMI Shares to the Buyer on the date hereof and as stock records of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinPOMI;
(ii) Seller The PVPS Purchase shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respectsbeen consummated;
(iii) Seller’s title in and to the Acquired Assets Advisory Agreement shall be good, valid and marketable and free of all liens and encumbranceshave been terminated;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court Sellers shall have entered an order, in a form and substance satisfactory delivered to Buyer the resignations of all officers and Seller (directors of POMI that are requested by the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on effective as of the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer The Escrow Agreement shall have been deliveredexecuted by Sellers;
(vi) Each of the representations and warranties made by the Sellers in this Agreement that is qualified by reference to materiality or Material Adverse Effect shall be true and correct, and each of the other representations and warranties made by the Sellers in this Agreement shall be true and correct in all material respects, in each case as of the date of this Agreement and at and as of the Closing Date as if made on that date (except in any case that representations and warranties that expressly speak as of a specified date or time need only be true and correct as of such specified date or time); and
(vivii) Seller Since the date of this Agreement, no event, circumstance or change shall deliver have occurred, that individually or in the Leased Premises in vacantaggregate with one or more other events, broom clean condition circumstances or changes, have had or reasonably would be expected to have, a Material Adverse Effect with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)respect to POMI.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Pacific Office Properties Trust, Inc.)
Conditions to Buyer’s Obligations. Buyer’s obligation Regarding Initial --------------------------------------------------- Receivables. The obligations of Buyer to consummate purchase the transactions contemplated hereby Receivables in connection with Accounts on ----------- the Closing is SMT Termination Date shall be subject to the satisfaction or waiver of the following conditions:
(ia) the All representations and warranties set forth of the RPA Sellers contained in Section 22.a) this Agreement shall have been be true and correct on the date hereof and SMT Termination Date with the same effect as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of though such representations and warranties had been made on such date;
(b) All information concerning the Accounts provided to Buyer shall be so true and correct has not had and would not reasonably be expected to have a material adverse effect on as of the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing SMT Termination Date in all material respects;
(iiic) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court FCNB shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying delivered or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) caused to be delivered to Buyer a computer file or microfiche list containing a true and complete list of all Accounts identified by account number and by the Receivables balance as of the SMT Termination Date, and the RPA Sellers shall have substantially performed all other obligations required to be performed by the provisions of this Agreement;
(d) Each RPA Seller shall have recorded and filed, at its expense, any financing statement with respect to the Receivables (other than Receivables in Additional Accounts) now existing and hereafter created for the transfer of accounts (as defined in Section 9-102 of the UCC as in effect in the State of Illinois) meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the sale of the Receivables to Buyer, and shall have delivered a file-stamped copy of such financing statements or other evidence of such filings (which may, for purposes of this paragraph, consist of telephone confirmations of such filings) to Buyer;
(e) On or before the SMT Termination Date, the Transfer and Servicing Agreement shall have been deliveredduly executed and delivered by the parties thereto and the initial closing under the Transfer and Servicing Agreement shall take place simultaneously with the initial closing hereunder; and
(vif) Seller All corporate and legal proceedings and all instruments in connection with the transactions contemplated by this Agreement shall deliver be satisfactory in form and substance to Buyer, and Buyer shall have received from the Leased Premises in vacant, broom clean condition with RPA Sellers copies of all FF&E, documents (including without limitation records of corporate proceedings) relevant to the Computer and Security Equipment, transactions herein contemplated as specifically set forth in Schedule II)Buyer may reasonably have requested.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Spiegel Inc), Receivables Purchase Agreement (Spiegel Master Trust)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing Transactions is subject to satisfaction the satisfaction, at or waiver prior to the Closing, of each of the following conditions, unless waived by Buyer:
(ia) Other than the representations and warranties of Seller Parent contained in Sections 4.1 (Qualification, Organization), 4.2 (Authority; Binding Effect), 4.3(a)(i) (No Conflicts; Consents), 4.5 (Title to Assets) and 4.10(c) (Material Contracts) (to the extent such representation and warranty relates to any Key IP Contract) (collectively, the “Specified Seller Parent Representations”), the representations and warranties set forth in Section 22.a) Article IV shall have been be true and correct (with such representations and warranties, other than Section 4.9(a), read for such purposes without any materiality or Material Adverse Effect qualifications) on and as of the date hereof of this Agreement and on and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date Date as if made at on the Closing Date (except that representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except where for inaccuracies that, individually or in the failure of such representations and warranties to be so true and correct has aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. The Specified Seller Parent Representations shall be true and correct in all material adverse effect respects on and as of the date of this Agreement and on and as of the Closing Date as if made on the condition Closing Date (except that representations and warranties that by their terms speak specifically as of Acquired Assets the date of this Agreement or some other date shall be true and correct in all material respects as a whole of such date).
(b) Seller Parent shall have performed or on complied in all material respects with all obligations required to be performed or complied with by it under this Agreement at or prior to the ability Closing.
(c) Since the date of this Agreement, there shall not have occurred any Material Adverse Effect.
(d) Seller Parent shall have delivered, or caused the applicable Seller to consummate have delivered, to Buyer:
(i) each of the transactions contemplated herein;documents required to be delivered by Seller Parent pursuant to Section 3.2(a); and
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free a certificate dated as of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) signed by a duly authorized officer of Seller Parent, certifying that the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule IISection 10.3(a), Section 10.3(b) and Section 10.3(c) have been duly satisfied.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Medicines Co /De)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing Transactions is subject to satisfaction the satisfaction, at or waiver prior to the Closing, of each of the following conditions, unless waived by Buyer:
(a) Each of the (i) the representations and warranties set forth in Section 22.a) Seller Fundamental Representations shall have been be true and correct in all material respects, in each case on the date hereof and as of the Closing as if made on the Closing Date (except to the extent expressly made that representations and warranties that by their terms speak specifically as of an earlier date, the date of this Agreement or some other date shall be true and correct in which case all material respects as of such date), and (ii) remaining representations and warranties set forth in ARTICLE IV shall be true and correct in all respects (with such representations and warranties read for such purposes without any materiality or Material Adverse Effect qualifications) on the date hereof and as of the Closing as if made at on the Closing Date (except that representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct in all respects as of such date), except where in the failure case of such representations and warranties to be so true and correct has this clause (ii) for inaccuracies or breaches that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect.
(b) Seller Parent and each other Seller shall have performed in all material adverse effect on respects all covenants and obligations required to be performed by it under this Agreement at or prior to the condition Closing.
(c) Since the date of Acquired Assets as this Agreement, no Effects shall have occurred which have had or would reasonably be expected to have, individually or in the aggregate, a whole Material Adverse Effect.
(d) Seller Parent shall have delivered, or on caused the ability of applicable Seller to consummate have delivered, to Buyer:
(i) each of the transactions contemplated herein;documents and deliveries required pursuant to Section 3.2(a); and
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free a certificate dated as of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) signed by a duly authorized officer of Seller Parent, certifying that the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)Section 10.3(a) and Section 10.3(b) have been duly satisfied.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Medicines Co /De), Purchase and Sale Agreement (Melinta Therapeutics, Inc. /New/)
Conditions to Buyer’s Obligations. Buyer’s obligation The obligations of Buyer to consummate the transactions contemplated hereby in connection with the Closing is by this Agreement shall be subject to satisfaction or waiver of the following conditions, which, to the extent permitted by applicable Legal Requirements, may be waived by Buyer:
(ia) the Seller shall have, in all material respects, performed and complied with all covenants and obligations of this Agreement to be complied with and performed by it at or before Closing.
(b) The representations and warranties of Seller set forth in Section 22.a) this Agreement that are qualified by materiality or Material Adverse Effect qualifications shall have been be true and correct on in all respects and all other representations and warranties of Seller set forth in this Agreement shall be true and correct in all material respects except where any failures or breaches of representations and warranties would not, either individually or in the date hereof and aggregate, have a Material Adverse Effect, in each case, as of the Closing (Date as if made on and as of such date except to the extent expressly made that such representations and warranties speak as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of event such representations and warranties to shall be so accordingly true and correct has not had as of such earlier date.
(c) Seller shall have delivered to Buyer a certificate, dated as of the date of Closing, executed by the manager of Seller, certifying that the conditions stated in paragraphs 7.1(a) and would not reasonably be expected 7.1(b) have been satisfied.
(d) Any waiting period (and any extension thereof) under the HSR Act applicable to the transactions contemplated by this Agreement shall have expired or been terminated, or clearance shall otherwise have been granted by the relevant Governmental Authorities.
(e) If Buyer and Seller submit a material adverse effect on the condition joint filing with CFIUS, CFIUS Approval shall have been obtained.
(f) The Financing (for greater certainty, providing for gross proceeds of Acquired Assets as a whole at least $65,000,000) shall have been arranged by or on behalf of the ability Buyer Parties; provided, however, that the obligations of Seller Buyer to consummate the transactions contemplated herein;by this Agreement shall not be subject to the condition stated in this Section 7.1(f) if the Buyer Parties have not performed in all respects all covenants and obligations of the Buyer Parties in Section 6.8.
(iig) Seller All authorizations, approvals and consents described on Schedule 7.1(g) shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;been obtained.
(iiih) Seller’s title in and There shall be no receivables or other amounts owing to the Acquired Assets Company or Rock Creek from any Affiliates of the Company or Rock Creek or any of their respective related parties.
(i) Since the date of this Agreement, there shall not have occurred and be continuing any Material Adverse Effect.
(j) There shall be goodno Legal Requirement, valid and marketable no Judgment shall have been entered and free not vacated by any Governmental Authority of all liens and encumbrances;competent jurisdiction in any Litigation or arising therefrom, that enjoins, restrains, makes illegal or prohibits consummation of the transactions contemplated by this Agreement.
(ivk) to That certain Management Services Agreement dated March 31, 2014 between EMG and the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court Company shall have entered an orderbeen terminated.
(l) The Note, if required, and each Security Document and the Warrant to be delivered by the parties thereto at Closing shall each be in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II).
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Klondex Mines LTD), Membership Interest Purchase Agreement (Klondex Mines LTD)
Conditions to Buyer’s Obligations. (a) The obligations of the Buyer to purchase the Shares from the Seller are subject to the satisfaction, or the waiver by the Buyer’s obligation , on or prior to consummate the transactions contemplated hereby in connection with the Closing is subject to satisfaction or waiver Date, of the following conditions:
(i) the representations and warranties set forth in Section 22.a) of the Seller contained herein shall have been be true and correct complete when made and shall be true and complete on the date hereof and as of the Closing (except to Date with the extent expressly made same effect as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of though such representations and warranties had been made on and as of the Closing Date, except in either case for those representations and warranties that address matters only as of a particular date, which representations will have been true and complete as of such particular date;
(ii) the Seller shall have performed in all material respects all of their covenants and agreements required to be so performed by them under this Agreement on or prior to the Closing;
(iii) the Company and the Buyer shall have entered into a letter agreement, in a form acceptable to the Buyer, pursuant to which the Company shall endeavor to grant to Buyer customary registration rights with respect to the Shares;
(iv) the Buyer shall have received a certified true copy of the Resolutions of the Board approving the transactions contemplated hereby and correct has not had thereby and would not reasonably be expected instructing the registered office provider of the Company to update the Register of Members of the Company to evidencing the Shares being transferred to the Buyer;
(v) the Seller shall have delivered to Buyer a certified true copy of the register of the members of the Seller dated within five (5) Business Days preceding the Closing; and
(vi) there shall have been no Material Adverse Effect (as defined below) since the date of this Agreement.
(b) For the purposes of this Section 5, “Material Adverse Effect” means a material adverse effect on the condition of Acquired Assets business (as a whole or on the ability of Seller presently conducted and proposed to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”conducted), assets (A) approving this Agreement and all including intangible assets), affairs, liabilities, condition (financial or otherwise), properties or results of operations of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)Company.
Appears in 2 contracts
Sources: Share Purchase Agreement (Warburg Pincus & Co), Share Purchase Agreement (Warburg Pincus & Co)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate purchase and pay for the transactions contemplated hereby in connection with the Closing Units is subject to the satisfaction (or waiver by Buyer) on or prior to the Closing Date of the following conditions:
(ia) The LTA shall have been duly authorized, executed and delivered by all parties thereto in substantially the form furnished to Buyer as of the date hereof;
(b) The Vessel shall have passed the Acceptance Tests and satisfied the Acceptance Minimum Requirements and been delivered to and accepted by Perenco under the terms of the LTA and commenced commercial operations thereunder, and the Acceptance Date shall have occurred;
(c) The Delivery shall have occurred, as such term is defined in the Common Terms Agreement;
(d) The representations and warranties set forth of the Sellers in Section 22.a) this Agreement shall have been be true and correct on the date hereof and in all material respects as of the Closing (Date as though made on the Closing Date, except to the extent such representations and warranties expressly made as of relate to an earlier date, date (in which case as of such date as if made at representations and warranties shall be true and correct in all material respects, on and as of such earlier date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(iie) Seller Golar GHK shall have transferred all Hilli Corp Shares owned by it to Golar;
(f) KSI Production shall have transferred all Hilli Corp Shares owned by it to Keppel;
(g) The Sellers shall have performed and or complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in respects with all obligations and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving covenants required by this Agreement and all of to be performed or complied with by the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases Sellers by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(vh) each delivery contemplated by The results of the searches, surveys, tests and inspections of the Vessel referred to in Section 11(a7.01(l) of this Agreement are reasonably satisfactory to be delivered to Buyer;
(i) Buyer shall have been delivered; andobtained the funds necessary to consummate the purchase of the Units, and to pay all related fees and expenses;
(vij) Seller The Tundra Put Sale Closing shall deliver have occurred;
(k) Perenco and SNH shall have provided the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security EquipmentCustomer Credit Support, as specifically set forth such term is defined in Schedule IIthe LTA, and the Customer Credit Support shall be in full force and effect;
(l) No material adverse change to the condition (financial or otherwise), assets, properties, business or prospects of the Transferred Subsidiaries, taken as a whole, shall have occurred;
(m) No Related Party Indebtedness shall be outstanding;
(n) All proceedings to be taken in connection with the transaction contemplated by this Agreement and all documents incidental thereto shall be reasonably satisfactory in form and substance to Buyer and its counsel, and Buyer shall have received copies of all such documents and other evidence as it or its counsel may reasonably request in order to establish the consummation of such transaction and the taking of all proceedings in connection therewith.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Golar LNG LTD), Purchase and Sale Agreement (Golar LNG Partners LP)
Conditions to Buyer’s Obligations. Buyer’s (a) The obligation of Buyer hereunder to consummate exchange its existing Prior Debt and the transactions contemplated hereby in connection with 2010 Note for the Senior Notes and Preferred Stock at the Closing is subject to satisfaction the satisfaction, at or waiver before the Closing Date, of each of the following conditions, provided that these conditions are for Buyer’s sole benefit and may be waived by Buyer at any time in its sole discretion by providing the Company with written notice thereof:
(i) The Company shall have duly executed and delivered to Buyer (I) each of the representations Transaction Documents to which it is a party, (II) the Acquired Series A Notes, (III) the Acquired Series B Notes, and warranties (IV) the number of shares of Preferred Stock as is set forth across from Buyer’s name in Section 22.acolumn (5) of Schedule I.
(ii) Buyer shall have received the opinion of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated, the Company’s counsel, dated as of the Closing Date, in the form acceptable to Buyer.
(iii) The Company shall have delivered to Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form acceptable to Buyer, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.
(iv) The Company shall have delivered to Buyer a certificate evidencing the formation and good standing of the Company in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within ten (10) days of the Closing Date.
(v) The Company shall have delivered to Buyer a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within ten (10) days of the Closing Date.
(vi) The Company shall have delivered to Buyer a certified copy of the Certificate of Incorporation as certified by the Delaware Secretary of State within ten (10) days of the Closing Date.
(vii) The Company shall have delivered to Buyer a certificate, in the form acceptable to Buyer, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s board of directors in a form reasonably acceptable to Buyer, (ii) resolutions (for the benefit of Buyer and all its affiliates) adopted by the Company’s board of directors exempting from Section 16(b) of the 1934 Act (in accordance with Rule 16b-3 promulgated by the SEC under the ▇▇▇▇ ▇▇▇) all transactions that may arise out of any of the Transaction Documents or the Series D Preferred Stock in a form acceptable to Buyer, (iii) the Certificate of Incorporation, (iv) the Bylaws, each as in effect at the Closing, and (v) the number of shares of Class B Common Stock issued and outstanding on the day immediately preceding the Closing.
(viii) Each and every representation and warranty of the Company shall be true and correct on as of the date hereof when made and as of the Closing Date as though originally made at that time (except to the extent expressly made for representations and warranties that speak as of an earlier a specific date, in which case as of such date as if made at shall be true and correct as of such date), and except where as to trade payables scheduled in Sections 3(r)(iii) or 3(s)(i) of the failure Disclosure Letter which shall either have been incurred since the date hereof in the ordinary course of business or trade payables so scheduled on such representations sections of the Disclosure Letter which have become more than 60 days past due since the date of the Disclosure Letter) and warranties the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole performed, satisfied or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through by the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding Company at or prior to the Closing Date. Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by Buyer in the form acceptable to Buyer.
(1ix) The Company shall have delivered to Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding on the day immediately prior to the Closing.
(x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market.
(xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities, including without limitation, those required by the Principal Market.
(xii) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents.
(xiii) Since the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect.
(xiv) The Company shall have obtained approval of the Principal Market to list or designate for quotation (as the case may be) the bankruptcy court Conversion Shares.
(xv) The Certificate of Designations shall have entered been filed with the Secretary of State of Delaware and shall be in full force and effect, enforceable against the Company in accordance with its terms and shall not have been amended.
(xvi) [intentionally omitted]
(xvii) The Company shall have duly executed and delivered to Buyer voting agreements (the “Voting Agreements”) by and between (i) the Company and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and (ii) the Company and each director and executive officer of the Company who, directly or indirectly, beneficially owns any Common Stock or Class B Common Stock, pursuant to which each such Person shall irrevocably agree to vote such securities in favor of the Resolutions at the Stockholder Meeting, whether in person or by proxy.
(xviii) The Company shall have duly executed and delivered to Buyer an order, advisory agreement in the form acceptable to Buyer (the “Advisory Agreement”).
(xix) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have been appointed as a form director to the Company’s board of directors concurrently with the consummation of the transactions contemplated by this Agreement.
(xx) The Company shall have amended its Indebtedness owed to Liberty on terms and substance conditions satisfactory to Buyer and Seller identified by Buyer prior to the date hereof and the Buyer and Liberty shall have entered into an Intercreditor and Subordination Agreement on terms and conditions satisfactory to the Buyer in its sole discretion.
(xxi) Without implication that it is required under applicable law or Section 203 of the Delaware General Corporation Law (“Sale OrderSection 203”), the Company’s board of directors shall have approved this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby (Aor which may arise related hereto or thereto) approving prior to the Company’s execution of this Agreement in accordance with applicable law and Section 203 such that the restrictions imposed by Section 203, all shareholder rights or similar plans and all applicable anti-takeover laws or provisions do not apply to Buyer or any of its affiliated or related persons or entities.
(xxii) All outstanding shares of Series D Preferred Stock, and all accrued and unpaid dividends thereon, together with any and all of the warrants issued in connection with the Series D Convertible Preferred Stock Purchase Agreement, dated October 29, 2007, shall have been cancelled and exchanged for 36,313,376 shares of Common Stock pursuant to the Series D Preferred Stock Exchange Agreement dated concurrently herewith between the Company and the current record holders of such Series D Preferred Stock.
(xxiii) Buyer shall be satisfied in its sole discretion with the results of its financial, business, accounting, tax and legal due diligence investigation of the Company and its Subsidiaries.
(xxiv) Buyer shall have received evidence satisfactory in its sole discretion that the Company’s creditors holding trade debt which is more than 30 days past due are contractually obligated to settle such trade debt for forty percent (40%) or less of its face amount.
(xxv) The Company shall have delivered the Disclosure Letter to the Buyer.
(xxvi) The Company shall have received a written agreement from ▇▇▇ ▇▇▇▇▇▇▇▇ waiving any cash bonus that he would be entitled to receive as a result of the transactions contemplated by this Agreement.
(xxvii) The Company shall have settled or otherwise formally resolved the lawsuit filed by Bank of America relating to its equipment leases with the Company, on terms and conditions hereofreasonably satisfactory to Buyer, such that the lawsuit will be dismissed by Bank of America and the equipment leases with the Company shall be reinstated.
(Bxxviii) approving The Company and authorizing Seller its Subsidiaries shall have delivered to consummate Buyer such other documents relating to the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying this Agreement as Buyer or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)its counsel may reasonably request.
Appears in 2 contracts
Sources: Securities Exchange Agreement (H.I.G. Aert, LLC), Securities Exchange Agreement (Advanced Environmental Recycling Technologies Inc)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction (or waiver Buyer’s waiver) of the following conditionsconditions as of the Closing Date:
(ia) the The representations and warranties set forth in Section 22.a) Articles II and III shall have been be true and correct on (without regard to any qualification as to “materiality” or “Material Adverse Effect” set forth therein) at and as of the date hereof of this Agreement and at and as of the Closing (except to the extent expressly Date as though made on and as of an earlier date, in which case the Closing Date (other than those representations and warranties that address matters as of such date as if made particular dates which shall be true and correct at and as of such dateparticular dates), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to not, individually or in the aggregate, have a material adverse effect on Material Adverse Effect; provided that the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(iirepresentations and warranties set forth in Sections 2.02, 2.03, 3.02(b)(i), and 3.04(a) Seller shall have performed be true and complied with its covenants and agreements hereunder through the Closing correct in all material respects;
(iii) Seller’s title in and to respects as of the Acquired Assets shall be good, valid and marketable and free date of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all at and as of the terms Closing Date as though made on and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment as of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(vb) each delivery contemplated by Section 11(a) Seller shall have performed in all material respects all of the covenants and agreements required to be performed by it under this Agreement at or prior to the Closing;
(c) The applicable waiting periods, if any, under the HSR Act shall have expired or been terminated;
(d) No temporary restraining order, preliminary or permanent injunction or other Order shall be in effect which would prevent the consummation of the Closing, and no Law shall have been enacted or shall be deemed applicable to the transactions contemplated hereby which makes the consummation of such transactions illegal;
(e) There shall have been no Material Adverse Effect since the date of this Agreement;
(f) Each of the Guarantees shall be in full force and effect;
(g) Seller and the Escrow Agent shall have executed and delivered to Buyer the Escrow Agreement;
(h) The Employment Agreement shall be in full force and effect; provided, that this Section 7.01(h) shall not be a condition to the obligation of Buyer to close the transactions contemplated by this Agreement if the actions of Buyer or any of its Affiliates or employees contribute significantly to the cause of such Employment Agreement no longer being in full force and effect;
(i) Seller shall have been deliveredobtained the consents set forth on Schedule 7.01(i) and such consents shall be in full force and effect; provided, that this Section 7.01(i) shall not be a condition to the obligation of Buyer to close the transactions contemplated by this Agreement if the actions of Buyer or any of its Affiliates or employees contribute significantly to the cause of any such consent not being obtained or no longer being in full force and effect;
(j) The Restrictive Covenant Agreement shall be in full force and effect; and
(vik) Seller shall deliver have delivered to Buyer each of the Leased Premises following:
(i) a certificate of Seller in vacantthe form reasonably satisfactory to Buyer, broom clean condition with all FF&Edated as of the Closing Date, stating that the preconditions specified in Sections 7.01(a) and (including without limitation the Computer and Security Equipmentb), as specifically they relate to Seller, have been satisfied;
(ii) resignations effective as of the Closing Date from such officers and directors of the Purchased Subsidiaries or their Subsidiaries as Buyer shall have requested in writing and delivered to Seller not less than five days prior to the Closing Date;
(iii) a copy of the certificate of incorporation, certificate of formation, or its equivalent of each of the Purchased Subsidiaries, as applicable (each certified by the Secretary of State of Delaware), and a certificate of good standing from the State of Delaware for each of the Purchased Subsidiaries, each dated within 15 days of the Closing Date;
(iv) all necessary forms and certificates complying with applicable Law and in a form reasonably satisfactory to Buyer, duly executed and acknowledged, certifying that the transactions contemplated hereby are exempt from withholding under Section 1445 of the Code; and
(v) certified copies of the resolutions duly adopted by Seller’s board of directors authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby to which Seller is a party, and the consummation of the transactions contemplated hereby and thereby. If the Closing occurs, all closing conditions set forth in Schedule IIthis Section 7.01 which have not been fully satisfied as of the Closing shall be deemed to have been fully waived by Buyer, provided, however, that if Seller fails to satisfy the requirements of Section 7.01(k)(iv), Buyer shall be permitted to withhold amounts in accordance with Section 1.07(d).
Appears in 2 contracts
Sources: Securities Purchase Agreement (Harland Clarke Holdings Corp), Securities Purchase Agreement (M & F Worldwide Corp)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing is subject to the satisfaction or waiver of the following conditionsconditions at or prior to the Closing:
(a) (i) Each of the representations and warranties Fundamental Representations (other than those set forth in Section 22.a2.4(a), Section 2.4(c) and Section 3.2) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date (other than such representations and warranties that are made specifically as of an earlier date, which representations and warranties shall have been true and correct on in all material respects as of such earlier date), (ii) each of the representations and warranties in Section 2.4(a), Section 2.4(c) and Section 3.2 shall be true and correct in all respects (other than de minimis inaccuracies) as of the date hereof of this Agreement and as of the Closing Date as if made on and as of the Closing Date (except to the extent expressly other than such representations and warranties that are made specifically as of an earlier date, in which case representations and warranties shall have been true and correct (other than de minimis inaccuracies) as of such earlier date) and (iii) each of the other representations and warranties of the Company and Seller contained in this Agreement shall be true and correct (without giving effect to any limitation as to “materiality,” “Material Adverse Effect” or similar qualifier that may be set forth in such representations and warranties) as of the date of this Agreement and as of the Closing Date as if made at on and as of the Closing Date (other than such representations and warranties that are made specifically as of an earlier date, which representations and warranties shall have been so true and correct as of such earlier date), except except, in the case of this clause (iii), where the failure of any such representations and warranties representation or warranty to be so true and correct (without giving effect to any limitation as to “materiality,” “Material Adverse Effect” or similar qualifier that may be set forth in such representations and warranties) has not had had, and would not reasonably be expected to have have, individually or in the aggregate, a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinMaterial Adverse Effect;
(iib) Seller and the Company shall have performed in all material respects all of the covenants and agreements required to be performed by them hereunder prior to the Closing;
(c) Since the date of this Agreement, no fact, event or circumstance has occurred or arisen that, individually or in combination with any other fact, event or circumstance, has had or would reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries;
(d) Seller shall have performed and complied with its covenants and agreements hereunder through received the Closing in all material respectsRequisite Stockholder Approval at the Seller Stockholder Meeting;
(iiie) Seller’s title in Buyer, Seller and to the Acquired Assets Company shall be goodhave received or obtained all governmental and regulatory consents, valid approvals, licenses and marketable authorizations that are necessary for the consummation of the Contemplated Transactions, and free of all liens and encumbrancesapplicable waiting periods under the HSR Act shall have expired or been terminated;
(f) No Action shall have been taken or overtly threatened by any Governmental Authority of competent jurisdiction wherein an unfavorable injunction, judgment, order, decree, ruling or charge would reasonably be expected to (i) prevent the performance of this Agreement or the consummation of the Contemplated Transactions or declare the Contemplated Transactions unlawful, (ii) cause the Contemplated Transactions to be rescinded following consummation, (iii) adversely affect the right of Buyer to own the Company Interests or operate the businesses of or control the Company and its Subsidiaries, (iv) affect adversely the right of the Company and its Subsidiaries to own their respective assets or control their respective businesses or (v) result in any material damages being assessed against the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing DateCompany or any of its Subsidiaries; and no such injunction, (1) the bankruptcy court judgment, order, decree or ruling shall have been entered an orderor be in effect;
(g) The Escrow Agent and Seller shall have duly executed the Escrow Agreement, and such agreement shall be in full force and effect and a copy thereof shall have been delivered to Buyer;
(h) Seller shall have duly executed the Intellectual Property Assignment Agreement in the form attached hereto as Exhibit A, and such agreement shall be in full force and effect and a copy thereof shall have been delivered to Buyer;
(i) Seller shall have duly executed the Transition Services Agreement (the “Transition Services Agreement”) in the form attached hereto as Exhibit B, and such agreement shall be in full force and effect and a copy thereof shall have been delivered to Buyer;
(j) Seller shall have delivered to Buyer, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller media reasonably acceptable to Buyer, a true and complete copy of all Data relating to the Business that is stored on any System owned or controlled by Seller or any of its Affiliates (2) no order stayingother than the Company or any of its Subsidiaries), reversingincluding all finance and human resources data, modifying or amending together with the Sale Order shall be in effect on full configuration files, of and from Workday as of the Closing Date;
(vk) each delivery contemplated by Section 11(a) to be Seller shall have obtained and delivered to Buyer (i) a customary fairness opinion confirming that the Contemplated Transactions are fair to Seller’s stockholders and (ii) a customary solvency opinion confirming that Seller will remain solvent following the Contemplated Transactions, in each case on terms and conditions reasonably satisfactory to Buyer and duly completed by one of the independent financial advisors listed on Schedule 7.1(k);
(l) The Senior Management Agreement shall remain in full force and effect as of the Closing Date;
(m) No Seller Insolvency Event has occurred;
(n) Seller shall have been delivereddelivered to Buyer, in a form reasonably acceptable to Buyer, valid and enforceable evidence of assignment of each of the contracts listed on Schedule 7.1(n) from Seller or any of its Affiliates (other than the Company or any of its Subsidiaries) to the Company or one of its Subsidiaries;
(o) Seller and the Company shall have completed, to Buyer’s reasonable satisfaction, all Migration Activities;
(p) Seller and the Company shall have delivered the fully executed Supplemental Indentures to Buyer and the Supplemental Indentures shall remain in full force and effect in accordance with their terms;
(q) The Estimated Net Working Capital as set forth in the Estimated Closing Statement shall be equal to or greater than $5,000,000; and
(vir) At the Closing, Seller and the Company shall deliver have delivered to Buyer: (i) a certificate dated the Leased Premises date of the Closing and signed by an authorized officer of Seller, stating that the conditions specified in vacantSection 7.1(a) and Section 7.1(b) and Section 7.1(c) (with respect to the Company) have been satisfied as of the Closing; (ii) certified copies of the resolutions of Seller as the Company’s sole member authorizing the execution, broom clean condition with all FF&E, delivery and performance of this Agreement and the other agreements contemplated hereby to which the Company is a party and the consummation of the Contemplated Transactions; (including without limitation iii) certified copies of the Computer certificate of formation and Security Equipmentlimited liability company agreement (or similar governing documents) for each of the Company and its Subsidiaries; and (iv) resignations of each of the officers and board members (or equivalently positions) of the Company and its Subsidiaries, as specifically applicable, effective as of the Closing. Any condition specified in this Section 7.1 may be waived by Buyer if such waiver is set forth in Schedule II)a writing duly executed and delivered to Seller by ▇▇▇▇▇.
Appears in 2 contracts
Sources: Transaction Support Agreement (UpHealth, Inc.), Membership Interest Purchase Agreement (UpHealth, Inc.)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer and Parent to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction or or, if permissible, waiver of the following conditions:
(a) (i) the Sellers Fundamental Representations (excluding the representations in Section 4.05(b)) shall be true and correct in all respects as of the Closing Date (except for such representations and warranties expressly made as of a specified date, in which case, as of such date) with the same force and effect as though made on such date and (ii) the representations and warranties (other than the Sellers Fundamental Representations (excluding the representations in Section 4.05(b)) set forth in Section 22.a) Article III and Article IV shall have been be true and correct on the date hereof and as of the Closing Date (except to the extent for such representations and warranties expressly made as of an earlier a specified date, in which case as of such date as if made at and case, as of such date) with the same force and effect as though made on such date (disregarding all qualifications as to “materiality,” “Material Adverse Effect” or similar qualifications), except where the failure of such representations and warranties to be so true and correct has not had and as of such date, would not reasonably be expected to not, individually or in the aggregate, have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinMaterial Adverse Effect;
(iib) each Seller shall have performed and complied in all material respects with its all of the covenants and agreements hereunder through required to be complied with by such Seller at or prior to the Closing in all material respectsClosing;
(iiic) SellerSellers’ Representative shall have delivered or caused to be delivered all of the items set forth in Section 2.04(b); provided, that if Sellers’ Representative fails to deliver any item described in Section 2.04(b)(iv), Buyer’s title in and to the Acquired Assets sole recourse shall be good, valid and marketable and free to withhold any Taxes required to be withheld under applicable Law as a result of all liens and encumbrancessuch failure;
(ivd) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court No Governmental Authority shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have issued, enacted, entered, promulgated or enforced any Law (that is final, non-appealable and has not been deliveredvacated, withdrawn or overturned) that imposes any Burdensome Condition with respect to any Required Consent; and
(vie) each Partner that is not a Seller as of the Execution Date shall deliver have become a Joining Seller or the Leased Premises Parties shall have amended this Agreement in vacant, broom clean condition accordance with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II).Section 6.14;
Appears in 1 contract
Sources: Purchase and Sale Agreement
Conditions to Buyer’s Obligations. Buyer’s obligation The obligations of Buyer to consummate the transactions transaction contemplated hereby by this Agreement are, in connection with addition to the Closing is other terms and conditions of this Agreement, subject to satisfaction or waiver of the following conditions:(any one or more of which may be waived in whole or in part by Buyer at its discretion):
(ia) the The representations and warranties set forth made by Seller in Section 22.a) shall have been this Agreement being true and correct in all material respects on the date hereof and as of the Closing (except to Date with the extent expressly made same force and effect as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of though such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition been made as of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller shall deliver a certificate to such effect at Closing;
(the “Sale Order”), (Ab) approving Seller having performed in all material respects all covenants and obligations in all material respects required by this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases be performed by Seller on or prior to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(vc) each delivery contemplated Seller having completed the Acquisition;
(d) All service and maintenance contracts not approved by Section 11(a) to be delivered and being assigned to Buyer shall have been deliveredterminated in accordance with Section 4.2(j) above;
(e) If the Property is subject to any reciprocal easement agreements or similar agreements, receipt by Buyer at least five days prior to the Closing of estoppel certificates from third parties administering such agreements in form and substance satisfactory to Buyer.
(f) Subject to Article 9 hereof, there shall have occurred no material adverse change in (i) the condition of the Property (including but not limited to the physical or environmental conditions thereof) or (ii) title, such as the appearance of title matters not previously disclosed in the Title Commitment;
(g) Buyer receiving, at Closing, an ALTA Owner's Extended Coverage Policy of Title Insurance insuring good, clear, record, marketable and fee simple title to the Property subject only to the Permitted Exceptions without exception for mechanic's liens or survey matters (except as shown on the survey furnished pursuant to Section 6.1 if not objected to) with, the endorsements required by Buyer; and
(vih) Seller shall deliver the Leased Premises All new leases must be previously approved by Buyer, in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)its sole discretion.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Haights Cross Communications Inc)
Conditions to Buyer’s Obligations. Under This Agreement. The obligations of the Buyer under Articles I and II of this Agreement shall be further subject to the satisfaction, or waiver by the Buyer’s obligation , at or prior to consummate the Closing, of each of the following conditions precedent:
a) The Buyer shall have completed its due diligence investigation with respect to the Seller, the Business and the Purchased Assets, and the Seller shall have delivered an updated Due Diligence Punch-List at Closing, certifying as to the corrective actions taken with respect thereto since the version delivered upon execution hereof.
b) All consents by third parties (including Governmental Authorities, as defined in Section 4.3(c)) that are required for the transfer of the Business and the Purchased Assets, and for the consummation of the transactions contemplated hereby in connection with hereby, including, without limitation, the Closing is subject to satisfaction or waiver consents of the following conditions:customers party to the Customer Contracts, shall have been obtained or provided for; provided, however, for purposes hereof, it shall suffice, with respect to any consent required from the FCC, if the FCC shall have granted "special temporary authority" in response and with respect to the STA Application (as defined in Section 8.3) filed pursuant to Section 8.3 below.
c) Since the date of execution hereof, the Business and the Purchased Assets shall not have been materially adversely affected in any way by any act of God, fire, flood, war, labor disturbance, legislation (iproposed or enacted), or other event or occurrence, and there shall not have occurred any event, condition, or state of facts of any character that has materially and adversely affected or may reasonably be anticipated to materially and adversely affect the Business or the Purchased Assets.
d) The Seller shall have caused to be performed a comprehensive tax lien, UCC lien, and judgment search with respect to the representations Seller, the Subsidiary, and warranties the Purchased Assets, in all appropriate jurisdictions and shall have delivered the results thereof to the Buyer, and shall have terminated and/or satisfied all of such liens and judgments to the complete satisfaction of the Buyer prior to Closing (as set forth in Section 22.a3.3(d) shall have been true and correct on above).
e) Without limiting any other conditions to Closing, the date hereof and Rochester Consent (as of the Closing (except to the extent expressly made as of an earlier date, defined in which case as of such date as if made at and as of such dateSection 4.11(e), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in full force and effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer and shall not have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)revoked or modified.
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate the transactions contemplated hereby in connection with the Closing is The obligations of Buyer under this Agreement are subject to the satisfaction or waiver of all of the following conditions:conditions as of the Closing Date (any of which may be waived in writing in whole or in part by Buyer):
(i) the A. all representations and warranties set forth of Seller and the Stockholder contained in Section 22.a) this Agreement shall have been be true and correct in all material respects on the date hereof and as of the Closing (except to Date with the extent expressly made same effect as of an earlier date, in which case as of such date as if made at though given on and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinClosing Date;
(ii) B. Seller and the Stockholder shall have fully performed and complied with its covenants and agreements hereunder through the Closing observed, in all material respects;
(iii) Seller’s title , its obligations and covenants set forth in and this Agreement which are to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding performed or observed by it on or prior to the Closing DateDate and shall tender the required documents, (1) instruments and certificates at the bankruptcy court Closing as set forth in subparagraph 10.1 or otherwise required hereby;
C. the consummation of the transactions contemplated by this Agreement shall not then be subject to an injunction or temporary restraining order;
D. Buyer, Seller and the Landlord of the Premises shall have entered into an orderExtension, Assignment and Assumption Agreement, in a form and substance satisfactory to Buyer, in which, inter alia, Buyer shall have obtained the written consent of the Landlord to the assignment of the Lease to Buyer, Landlord shall have extended the term of the Lease through July 31, 2002, with the rental rate for such renewal term to be at the lower of (x) the then existing market rate or (y) $11,109 per month, adjusted, annually, to reflect any increase in the consumer price index between July, 2001 and Seller July of each year of the renewal term, and the Landlord shall have represented to Buyer that (i) no default exists under the “Sale Order”)Lease, (Aii) approving this all amounts owing under the Lease have been fully and timely paid, and (iii) if the Lease were terminated at Closing, the Landlord would accept the Premises in their present condition without assessment of any charges for damage to, or failure to repair, the Premises;
E. there shall not be any material adverse change in the Purchased Assets or the Business from the Effective Date to the Closing Date and, during that period, there shall not be any material loss by fire or casualty, whether or not covered by insurance;
F. all consents, approvals and waivers from governmental authorities, vendors, suppliers, parties to Assigned Contracts, and other parties necessary to permit Seller to transfer the Purchased Assets and the Business to Buyer as contemplated hereby, and to permit Buyer to acquire such Purchased Assets and the Business shall have been obtained;
G. Buyer shall have completed the "due diligence" review described in Section 6.1 hereof, with the results thereof being satisfactory to Buyer in its absolute discretion;
H. Buyer shall have entered into a Employment, Non-Compete and Confidentiality Agreement and all of with Stockholder, the terms and conditions hereofof which shall be acceptable to Buyer;
I. Buyer shall have determined that the customers of Seller to which Seller has made sales in any of the last two (2) fiscal years aggregating more than five percent (5%) of its total sales in such year will continue to do business with Buyer, after Closing;
J. The customers, subcontractors, entities for which Seller provides manufacturer's representative services and suppliers listed on Schedule 6.1 shall have consented to the assignment of their contractual relationship with Seller to Buyer.
K. The employees listed on Schedule 3.14 shall have (i) consented to the assignment to Buyer of their employment agreement with Seller, and (Bii) approving executed and authorizing delivered to the Buyer a Non-Compete and Confidentiality Agreement, all on terms satisfactory to Buyer.
L. Seller shall have delivered to consummate Buyer evidence that the transactions contemplated hereinsecurity interests described in Schedule 3.6 hereof shall have been terminated; and
M. Seller shall have delivered to Buyer the opinion of its counsel, including the assumption and assignment of the Leases by Seller which counsel shall be reasonably acceptable to Buyer, and (2) no order staying, reversing, modifying or amending to the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)Sections 3.1 and 3.2 hereof, and, to the knowledge of such counsel, to the effect set forth in Sections 3.3, 3.4, 3.12 and 3.14 (excluding the first two sentences thereof) hereof.
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s obligation 's obligations to consummate ------------ --------------------------------- effect the transactions purchase and assumption transaction contemplated hereby in connection with by this Agreement shall be subject to the satisfaction (or waiver by Buyer) prior to or on the Closing is subject to satisfaction or waiver Date of the following conditions:
(ia) the The representations and warranties set forth made by Seller in Section 22.a) this Agreement shall have been be true and correct in all material respects on the date hereof and as of the Closing (except to Date with the extent expressly made same effect as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of though such representations and warranties to be so true had been made or given on and correct has not had and would not reasonably be expected to have a material adverse effect on as of the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinClosing Date;
(iib) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respectsrespects with all of its obligations and agreements required to be performed prior to the Closing Date under this Agreement;
(iiic) Seller’s title No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the purchase and assumption transaction contemplated by this Agreement shall be in and effect, nor shall any proceeding by any bank regulatory authority or other governmental agency seeking any of the foregoing be pending. There shall not be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Acquired Assets shall be good, valid purchase and marketable and free assumption transaction contemplated by this Agreement which makes the consummation of all liens and encumbrancessuch transaction illegal;
(ivd) All necessary regulatory approvals, consents, authorizations and other approvals required by law for consummation of the purchase and assumption transaction contemplated by this Agreement shall have been obtained in a manner and form reasonably satisfactory to the extent that Buyer, and all waiting periods required by law shall have expired;
(e) Buyer shall have received all documents required to be received from Seller becomes subject to a Chapter 11 Proceeding on or prior to the Closing Date, (1) the bankruptcy court shall have entered an order, all in a form and substance reasonably satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(vf) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have accepted status of title as reflected in the commitment for title insurance or title opinion (as such commitment or opinion may have been deliveredmodified) delivered by Seller pursuant to Section 5.04 hereof and shall not have elected to terminate this Agreement pursuant to Section 5.07 hereof; and
(vig) Buyer and Seller shall deliver have mutually agreed upon the Leased Premises Loans to be purchased by Buyer in vacantaccordance with Section 1.01(d) hereof, broom clean condition with all FF&E, (including without limitation such Loans having an aggregate principal balance of at least $9,000,000 as of the Computer and Security Equipment, as specifically set forth in Schedule II).Closing Date. ARTICLE EIGHT ------------- TERMINATION OR ABANDONMENT --------------------------
Appears in 1 contract
Sources: Branch Purchase and Assumption Agreement (First Southern Bancshares Inc/De)
Conditions to Buyer’s Obligations. All of Buyer’s obligations hereunder (including, without limitation, Buyer’s obligation to pay the Purchase Price, to accept title to the Property and to consummate the transactions contemplated hereby in connection with Closing) are expressly conditioned on the satisfaction at or before the time of Closing is subject to satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in Section 22.a) shall have been true and correct on the date hereof and conditions precedent being fully satisfied as of the Closing (any one or more of which may be waived in writing in whole or in part by Buyer, at Buyer’s option):
(a) At Closing, Seller shall deliver possession of the Property to Buyer free and clear of all tenancies and other occupancies except for the Master Lease and the Operating Subleases;
(b) Seller shall have timely delivered the items set forth in Section 10 above that Seller is obligated to deliver;
(c) Buyer shall have received from Title Insurer or any other title insurer approved by Buyer in its judgment and discretion, a current ALTA owner’s form of title insurance policy, or irrevocable and unconditional binder to issue the same, with extended coverage for the Real Property in the amount of the Purchase Price, dated, or updated to, the date of the Closing, insuring, or committing to insure, at its ordinary premium rates, Buyer’s good and marketable title in fee simple to the Real Property and otherwise in such form and with such endorsements as provided in the title commitment approved by Buyer pursuant to Section 6 hereof, subject only to the Permitted Exceptions;
(d) The Real Property shall have a valid, permanent and unconditional certificate of occupancy (or the equivalent thereof) for the use and occupancy of the Property by Tenant and the Operating Subtenant (to the extent expressly required by applicable law) which shall not contain any contingencies or require any additional work to be completed, and Buyer shall have received a copy of such certificate;
(e) Each Operating Subtenant shall be in possession of the subpremises demised under each of the Operating Subleases and open for business to the public;
(f) Between the date hereof and the Closing Date, there shall have been no event having a Material Adverse Effect with respect to the financial or physical condition of the Property or the business operated thereon;
(g) The municipality in which the Property is located or any other relevant governmental authority issues all certificates, permits and inspection and other approvals that may be required as a condition to the transfer of the Property to Buyer and to continue to operate the Property;
(h) No later than five (5) business days prior to the Closing Date, Seller shall have obtained an estoppel certificate as to each restrictive covenant, declaration and/or reciprocal easement agreement of record, which estoppel certificate shall: (i) be executed by each party entitled to enforce such document; (ii) confirm that such document is in full force and effect, unmodified except as revealed by the Title Report/Commitment received by Buyer; (iii) confirm that there are no defaults by the Seller and/or the Property under such document; (iv) confirm that there are no outstanding sums owed by the Seller and/or the Property; (v) confirm that there are no outstanding construction or similar obligations of Seller and/or the Property; and (vi) be dated no earlier than thirty (30) days prior to Closing;
(i) The representations and warranties of Seller contained in this Agreement shall have been true when made and shall be true in all material respects at and as of an earlier date, in which case as the date of such date Closing as if such representations and warranties were made at and as of such date)the Closing, except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respectsrespects with all covenants, agreements and conditions required by this Agreement to be performed or complied with by Seller prior to or at the Closing;
(iiij) Seller’s title in All Regulatory Approvals shall have been issued and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesobtained;
(ivk) All conditions precedent in favor of Buyer under the Closing Agreement shall have satisfied all conditions and the closing thereunder shall have occurred or occurs simultaneously with the Closing hereunder; and
(l) Seller shall have delivered to the Title Company, in recordable form, a memorandum of right of first refusal executed by Providence PCC of Grenada, LLC, with respect to the property located at ▇▇▇▇ ▇ ▇ ▇▇▇▇ Drive, Grenada, Mississippi 38901.
(m) Seller shall have recorded or delivered to the Title Company, in recordable form, a release of that certain Land Use Restriction Agreement among Seller, ▇▇▇▇▇▇▇ Bank, as trustee, and Mississippi Home Corporation, as issuer, dated as of December 1, 2006, and recorded on December 14, 2006, in Book M267, Page 722, in the records of Bolivar County, Mississippi.
(n) If any of the foregoing conditions precedent have not been satisfied as of Closing, Buyer may, in its sole and absolute discretion, either: (i) waive any unsatisfied conditions and proceed to Closing in accordance with the terms and provisions hereof with no deduction from or adjustment of the Purchase Price except for (a) adjustment equal to the amount required to satisfy and discharge of record at or before Closing of any and all liens, judgments or other encumbrances which can be removed by the payment of a fixed and ascertainable amount together with interest and penalties thereon, if any, and together with any additional title insurance costs or premiums imposed by Title Insurer by reason thereof, and (b) the cost of curing any failed condition precedent to the extent that Seller becomes subject reducible to a Chapter 11 Proceeding prior to liquidated sum; (ii) suspend the Closing DateDate on one or more occasions for a period of time as Buyer shall reasonably determine in order to allow for all of the foregoing conditions precedent to be satisfied, during which period Seller and Buyer shall work cooperatively and with reasonable diligence to satisfy all of said conditions, or (1iii) terminate this Agreement by delivering written notice thereof to Seller no later than Closing, upon which termination the bankruptcy court ▇▇▇▇▇▇▇ Money shall have entered an order, in a form and substance satisfactory be refunded to Buyer and Seller (the “Sale Order”)shall reimburse Buyer for all title insurance company charges, (A) approving this Agreement survey charges, attorneys’ fees and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate other out-of-pocket costs incurred in connection with the transactions contemplated hereinby this Agreement, including the assumption all obligations, liabilities and assignment rights of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order parties under this Agreement shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)terminate.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Griffin-American Healthcare REIT III, Inc.)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to satisfaction the satisfaction, or waiver by Buyer, of each of the following conditionsadditional conditions as of immediately prior to the Closing:
(ia) the representations and warranties set forth in Section 22.aThe Seller Fundamental Representations (each interpreted without giving effect to any limitation or qualification as to materiality or Material Adverse Effect) shall have been be true and correct on the date hereof and in all material respects as of the Closing Date as if made on and as of such date (except to the extent any such representation or warranty expressly made as of relates to an earlier date, date (in which case as of such date earlier date)), (b) the representation contained in Section 3I(i) shall be true and correct in all respects as of the Closing Date, and (c) the other representations and warranties of Seller contained in Article 3 (each interpreted without giving effect to any limitation or qualification as to materiality or Material Adverse Effect) shall be true and correct in all respects as of the Closing Date as if made at on and as of such date (except to the extent any such representation or warranty expressly relates to an earlier date (in which case as of such earlier date)), except where in the case of this clause (c) for any failure of such representations and or warranties to be so true and correct as has not had and would not reasonably be expected to have have, individually or in the aggregate with all such other failures, a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinMaterial Adverse Effect;
(ii) Seller shall have performed and complied with its Each of the covenants and agreements hereunder through of Seller to be performed as of or prior to the Closing shall have been performed in all material respects;
(iii) Seller’s title in and to Since the Acquired Assets date of this Agreement, there shall be good, valid and marketable and free of all liens and encumbrancesnot have occurred a Material Adverse Effect;
(iv) Seller shall have delivered to Buyer a certificate in the extent that Seller becomes subject to a Chapter 11 Proceeding prior to form of Exhibit F attached hereto dated as of the Closing Date, (1) Date and signed by a senior executive officer of Seller on behalf of Seller confirming the bankruptcy court shall have entered an order, foregoing matters in a form and substance satisfactory to Buyer and Seller (the “Sale Order”Section 2B(i), (ASection 2B(ii) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing DateSection 2B(iii);
(v) Seller shall have delivered to Buyer each delivery contemplated by Section 11(a) of the certificates and other documents required to be delivered pursuant to Buyer shall have been deliveredSection 1D(ii); and
(vi) Seller shall deliver have accepted the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation Offer within the Computer and Security Equipment, as specifically set forth in Schedule II)Offer Period.
Appears in 1 contract
Sources: Share Purchase Agreement (Sensata Technologies Holding N.V.)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction or waiver of the following conditionsconditions as of the Closing Date:
(ia) Each of the representations and warranties set forth of Seller, the Company and EHO contained in Section 22.aArticles 3 and 4 (i) shall have been that is qualified as to or by Material Adverse Effect will be true and correct on the date hereof and as of the Closing Date as if made anew as of such date (except to the extent any such representation and warranty expressly made as of relates to an earlier date, date (in which case as of such date earlier date)) and (ii) that is not qualified as to or by Material Adverse Effect will be true and correct as of the Closing Date as if made at and anew as of such date (except to the extent any such representation and warranty expressly relates to an earlier date (in which case as of such earlier date)), except where the any failure of any such representations representation and warranties warranty referred to in this clause (ii) to be so true and correct has not had and would not reasonably have a Material Adverse Effect. Buyer hereby acknowledges and agrees that the condition to Buyer’s obligation set forth in this Section 2.02(a) shall be deemed to be satisfied with respect to any Interim Breaches if the aggregate amount of Interim Breach Losses does not exceed $2,000,000 (exclusive of all fees and costs of legal or other advisors expected to be incurred by Buyer in connection with such Interim Breaches).
(b) The Company, EHO and Seller will have performed, in all material respects, all of the covenants and agreements under this Agreement that are required to be performed by them at or prior to the Closing, including completion of the Reorganization.
(c) Seller will have delivered to Buyer a material adverse effect on duly executed assignment of the condition Interests, together with the original EHO Membership Interest Certificate, and AHC Holdco will have delivered to Buyer a duly executed assignment of the Units, in each case in form reasonably acceptable to Buyer.
(d) The Company, EHO and Seller will have delivered to Buyer a certificate, dated as of the Closing Date, stating that (i) the conditions specified in subsections (a) and (b) above as they relate to the Company, EHO or Seller, as applicable, have been satisfied, and (ii) the Reorganization has been consummated, to which are attached copies of (v) the resolutions of the board of directors and Seller, as the sole shareholder of AHC Holdco, authorizing the sale by AHC Holdco of the Units, (w) the resolutions of the sole member and the manager(s) of each of the Company and EHO approving this Agreement and the Transactions and terminating the deferred compensation plans of the Acquired Assets Companies effective immediately prior to the Closing, (x) the organizational documents of each of the Company, EHO, and AHC Holdco, (y) certificates of good standing issued by the Secretary of State of the Commonwealth of Massachusetts as of a whole or on recent date for each of the ability Company, EHO and AHC Holdco, and (z) all of the documents comprising the Reorganization (the “Reorganization Documents”), including a certificate of the Conversion issued by the Secretary of State of the Commonwealth of Massachusetts and the cancelled stock certificates in the names of Seller and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, evidencing their prior ownership of the Shares, as applicable, in each case certified as accurate and complete as of the Closing Date.
(e) The Company will have obtained the Acquired Company Third Party Consents.
(f) Seller will have delivered to consummate Buyer a certification, dated as of the Closing Date, certifying any facts that would exempt the transactions contemplated herein;hereunder from withholding under Section 1445 of the Code.
(iig) The Acquired Companies will have delivered to Buyer the written resignations of all directors and officers of the Acquired Companies in office immediately prior to the Closing.
(h) The Escrow Agreement shall have been executed by Seller and the Escrow Agent.
(i) Seller shall have performed delivered to Buyer the lease agreements in the forms of Exhibits B-1 and complied with B-2 (collectively, the “Lease Agreements”), as applicable, for the Affiliated Real Property, duly executed and delivered by the Company, as tenant, and Seller or its covenants and agreements hereunder through the Closing in all material respects;Affiliate, as applicable, as landlord.
(iiij) As of the Closing, each of the employment term sheet, dated as of the date hereof, by and between the Company and Seller’s title , and the Executive Protective Covenant Agreement, dated as of the date hereof, between Amedisys and Seller, attached hereto as Exhibits C-1 and C-2, respectively (collectively, the “Employment Documents”), shall be in full force and effect, unless any such failure of the Employment Documents to be in full force and effect is due to the Acquired Assets shall be good, valid and marketable and free actions or omissions of all liens and encumbrances;Buyer or Amedisys.
(ivk) Seller shall have delivered to Buyer a confirmation signed by his present spouse (and any prior spouse) that she has no interest in or claim to the extent Units, the Interests, the Shares or the sale proceeds thereof, in form and content reasonably acceptable to the Buyer Company.
(l) Seller shall have delivered to Buyer documentation, in form and content reasonably acceptable to Buyer, evidencing that that the Acquired Companies have been irrevocably released and discharged from any and all outstanding guarantees and other obligations and liabilities relating to the Indebtedness of Seller becomes subject and his Affiliates, along with documentation, in form and content reasonably acceptable to a Chapter 11 Proceeding Buyer, evidencing that any and all Liens on the assets of the Acquired Companies relating to such guarantees, obligations and liabilities have been terminated.
(m) The Company shall have delivered to Buyer documentation, in form and content reasonably acceptable to Buyer, evidencing that all loans referenced on Section 4.17 of the Disclosure Schedule have been or will be repaid in full at or prior to the Closing Date, Closing.
(1n) the bankruptcy court The Company shall have entered an order, in a form and substance satisfactory delivered to Buyer a copy of a CD or DVD-ROM containing a true, correct and Seller (the “Sale Order”), (A) approving this Agreement and all complete copy of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate electronic data room created in connection with the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)this Agreement.
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction or waiver of the following conditionsconditions as of the Closing Date:
(ia) the The representations and warranties set forth in Section 22.a(i) Article III (other than those referred to in clauses (ii) and (iii) below) shall have been be true and correct on the date hereof and as of the Closing Date as though then made (except disregarding all qualifications or limitations as to the extent expressly made “materiality” or “Material Adverse Effect”), (ii) Article III that address matters as of an earlier date, in which case particular dates shall be true as of such date dates (disregarding all qualifications or limitations as if made at and as of such dateto “materiality” or “Material Adverse Effect”), except except, in the case of each of clause (i) and (ii), where the failure failures of such representations and warranties to be so true do not, individually or in the aggregate, constitute a Material Adverse Effect and (iii) Section 3.01 (Organization and Standing), Section 3.02 (Authority; Execution and Delivery; Enforceability), Section 3.04 (Ownership of the Units) and Section 3.21 (Brokerage) shall be true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free respects as of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect Date as though made on the Closing Date;
(vb) each delivery Seller shall have performed in all material respects all of the covenants and agreements required to be performed by it under this Agreement at or prior to the Closing, including the actions specified in Section 5.08;
(c) Seller shall have delivered, or caused to be delivered, to Buyer the certificate or certificates representing the Units or Seller shall have delivered to Buyer evidence or other written confirmation reasonably satisfactory to Buyer that the Units are being held in escrow by an agent of Seller’s lenders pending confirmation of Closing and will be released to Buyer upon such agent’s confirmation of Closing, if the Units are not certificated, duly executed transfer instruments conveying the Units to Buyer;
(d) Seller shall have paid to Cumberland the Closing Cash as set forth in Section 1.02;
(e) Seller shall have delivered to Buyer all minute books of the Companies in their possession;
(f) The Surety Bond Cash Collateral shall be held subject to a collateral sharing agreement between the Seller’s sureties and Buyer’s sureties to maintain the Surety Bond Cash Collateral in place as security for the Company Bonds until the Company Bonds are released, at which point the Surety Bond Cash Collateral shall then be held on the account of Buyer’s sureties as security for the Replacement Bonds, exclusively;
(g) Seller and the Companies shall have revised the tax elections for the Companies and made the necessary filings with the IRS to cause the Companies to be treated by the IRS as regarded entities taxed as C corporations, and Seller shall have delivered evidence of such filings to Buyer;
(h) Seller shall have obtained all Consents of Governmental Bodies and other third parties required with respect to the transactions contemplated by this Agreement, including all Consents of Governmental Bodies and other third parties listed in Section 11(a3.03 of the Disclosure Schedules and approval of transfers of all Permits related to the Company Assets if not already in the name of a Company or the Companies, as applicable, and all conditions relating to such Consents of Governmental Bodies or other third parties shall have been satisfied by Buyer in all respects, subject, however to Sections 5.04(b), 5.04(c) and 5.07;
(i) Seller shall have delivered to Buyer evidence or other written confirmation reasonably satisfactory to Buyer that all applicable mortgage, deed of trust and UCC Lien releases required by the credit facilities described in Section 2.03(d) of the Disclosure Schedules (the “Releases”) (i) have been received by Seller as of the Closing, or (ii) have been properly executed and are being held by an agent of Seller’s lender in escrow pending confirmation of Closing and will be released to Seller upon such agent’s confirmation of the Closing; and Seller will cause such Releases to be recorded promptly after Closing and return the recorded Releases to Buyer;
(j) Seller shall have transferred, or caused to be transferred, to PA Land ownership of the property associated with the Administrative Office located entirely within the area shown on Exhibit B, together with all buildings and other structures, facilities or improvements currently located thereon, all fixtures, systems, equipment and items of personal property of the Companies, Seller and its Affiliates (to the extent primarily used in the conduct of the business of the Companies as it is currently conducted) attached or appurtenant thereto, and all easements, licenses, Permits, rights, and appurtenances relating to the foregoing;
(k) There shall not have occurred a Material Adverse Effect; and
(l) Seller shall have assigned, or caused to be assigned, to a Company all of the Coal Sales Agreements or Seller shall have delivered to Buyer, or caused to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver Buyer, a properly executed counterpart of the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule IINew Coal Sales Agreement pursuant to Section 5.04(c).
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s obligation The obligations of Buyer to consummate the transactions contemplated hereby in connection with under this Agreement and the Closing is other Transaction Agreements are subject to satisfaction the fulfillment and satisfaction, prior to or waiver at the time of the Closing, of each of the following conditionsconditions precedent (the “Buyer Conditions”), any one or more of which may be waived, in part or in full, by Buyer in writing:
(i) the 8.2.1 The representations and warranties set forth of each Seller contained in Section 22.athis Agreement (and in any other Transaction Agreement delivered by any Seller pursuant hereto) shall have been true be true, correct, and correct complete in all material respects on the date hereof and as of the Closing and each Seller shall have executed and delivered to Buyer a certificate as of the Closing to the effect set forth in this Section 8.2.1.
8.2.2 All of the terms, covenants, agreements and obligations of this Agreement to be complied with, performed, or satisfied by any Seller on or before the Closing Date shall have been duly complied with, performed, or satisfied in all material respects on or before such date and each Seller shall have executed and delivered to Buyer a certificate as of the Closing to such effect.
8.2.3 Any lenders to Sellers who are required to approve or consent to the sale of the Assets to Buyer pursuant to this Agreement shall have delivered an approval or consent, including assurance that Buyer will not be liable for any claims such lenders may have against Sellers or the Assets, in form and substance reasonably acceptable to Buyer.
8.2.4 On or prior to the Closing, Sellers shall have delivered or made available to Buyer the following:
(except a) the Pharmacy Records.
(b) evidence satisfactory to Buyer that any Encumbrances other than Permitted Encumbrances on the Assets have been released and discharged, including UCC-3 termination statements;
(c) a certificate of each Seller’s secretary (or comparable officer), setting forth certified copies of the articles of organization, certificate of formation, certificate of incorporation, operating agreement, or limited liability company agreement, each to the extent expressly made applicable and as of an earlier datein effect immediately prior to the Closing, in which case as and resolutions of such date Seller’s managers, directors, stockholders, or members, as if made at applicable and as required, authorizing the execution, delivery, and performance of such date), except where this Agreement and the failure other documents contemplated hereby and the consummation of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinhereby and thereby, and certifying that (i) such articles of organization, certificate of formation, certificate of incorporation, operating agreement, or limited liability company agreement, each as applicable, and such resolutions have not been amended or rescinded and are in full force and effect and (ii) such Seller’s authorized officer or manager executing this Agreement and other documents delivered pursuant to this Agreement is an incumbent officer or manager and the specimen signature on the certificate is that authorized officer’s or manager’s genuine signature;
(iid) Seller shall have performed and complied with its covenants and agreements hereunder through a good standing certificate from the Closing in all material respectsjurisdiction of each Seller’s respective formation or incorporation each dated as of a date reasonably close to the Closing;
(iiie) Seller’s title an unconditional consent to assignment of the Lease to Buyer from the landlord set forth in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesLease;
(ivf) a B▇▇▇ of Sale duly executed by each Seller in the form attached hereto as Exhibit A;
(g) a Power of Attorney duly executed by TAG in the form attached hereto as Exhibit B;
(h) duly executed counterparts to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing other Transaction Agreements to which each Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been deliveredis a party; and
(vii) Seller shall deliver such other bills of sale, assignments, certificates of title and other documents of transfer as may be reasonably requested by Buyer in order to convey to Buyer good and marketable title to all of the Leased Premises Assets, free and clear of all Encumbrances other than Permitted Encumbrances, and in vacant, broom clean condition with all FF&E, (including without limitation order to carry out the Computer intentions and Security Equipment, as specifically set forth in Schedule II)purposes of this Agreement and the other Transaction Agreements and the transactions contemplated hereby and thereby.
Appears in 1 contract
Sources: Asset Purchase Agreement (Imprimis Pharmaceuticals, Inc.)
Conditions to Buyer’s Obligations. Buyer’s The obligation of each of Buyer Parent and Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction or or, if permissible, waiver of the following conditionsconditions as of the Closing:
(i) the Seller Fundamental Representations shall be true and correct (A) in all respects (except for inaccuracies that are de minimis relative to such Sellers, collectively) with respect to all Sellers other than the Blackstone Sellers and the Non-Compete Sellers and (B) in all respects (except for de minimis inaccuracies) with respect to the Blackstone Sellers and the Non-Compete Sellers, in each case as of the Closing Date with the same force and effect as though made on such date; (ii) the representations and warranties set forth in Section 22.a5.06(n) (disregarding all qualifications as to “materiality,” “Material Adverse Effect” or similar qualifications) shall have been be true and correct on the date hereof and in all material respects as of the Closing Date with the same force and effect as though made on such date; (iii) the representation and warranty set forth in the last sentence of Section 4.07 shall be true and correct in all respects as of the Closing Date with the same force and effect as though made on such date; and (iv) the representations and warranties (other than the Seller Fundamental Representations and the representations and warranties set forth in Section 5.06(n) and Section 4.07) set forth in Article III, Article IV and Article V shall be true and correct as of the Closing Date (except to the extent for such representations and warranties expressly made as of an earlier a specified date, in which case as of such date as if made at and case, as of such date) with the same force and effect as though made on such date (disregarding all qualifications as to “materiality,” “Material Adverse Effect” or similar qualifications), except where the failure of such representations and warranties to be so true and correct has not had and as of such date, would not not, individually or in the aggregate, have or reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinMaterial Adverse Effect;
(iib) each Seller (or, with respect to deliveries to be made at the Closing, Sellers’ Representative on each Seller’s behalf, as applicable, to the extent permitted by this Agreement) shall have performed and complied with its and performed in all material respects all of the covenants and agreements hereunder through required to be complied with or performed by them at or prior to the Closing in all material respectsClosing;
(iiic) each Seller (or Sellers’ Representative on each Seller’s title in and to the Acquired Assets shall be goodbehalf, valid and marketable and free of all liens and encumbrances;
(ivas applicable) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying delivered or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) caused to be delivered to Buyer all of the items required to be delivered under Section 2.03(b);
(d) no effect, event, development or change shall have been deliveredoccurred or arisen since the date hereof that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Acquired Companies;
(e) prior to the Closing, the Pre-Closing Reorganization shall have occurred in accordance with and pursuant to Section 7.16;
(f) Buyer shall have received (i) a Joinder duly executed (on his, her or its own behalf) by each Dragged Seller who is not a POA-Joined Dragged Seller and (ii) a Joinder duly executed by the General Partner on behalf of each POA-Joined Dragged Seller.
(g) Buyer shall have (i) received all consents or waivers necessary under the Floorplan Financing such that the parties to the Floorplan Financing (other than the Acquired Companies) have no continuing right (A) to consent to this Agreement, its execution, delivery or performance, or the transactions contemplated hereby or (B) to terminate or (except as provided in the applicable consent) amend or modify in any manner the Floorplan Financing or any terms thereof as a result of this Agreement or the transactions contemplated hereby, which consents shall be in form and substance reasonably satisfactory to Buyer and duly executed by the applicable parties to the Floorplan Financing or (ii) refinanced the Floorplan Financing pursuant to comparable financing arrangements such that the parties to such replacement financing (other than the Acquired Companies) have no continuing right (A) to consent to this Agreement, its execution, delivery or performance, or the transactions contemplated hereby or (B) to terminate or amend or modify in any manner such replacement financing or any terms thereof as a result of this Agreement or the transactions contemplated hereby, which replacement financing shall be in form and substance reasonably satisfactory to Buyer; provided, that any amendment or modification reflected in any such consent (or any such replacement financing) shall be reasonably satisfactory to Buyer so long as (I) in the case of a replacement financing, the lender is reasonably satisfactory and (II) such amendment or modification (or replacement financing) would not reasonably be expected (x) to adversely alter in any respect any of the terms under the Floorplan Financing (or, in the case of replacement financing, include terms thereunder that adversely differ from the applicable refinanced Floorplan Financing) with respect to the aggregate commitments by the lenders thereunder, the base rates, margins or other fees or interest payable with respect to any amounts borrowed thereunder, the maturities of credit advances thereunder, the amounts, timing or other terms with respect to any curtailment payments thereunder, the security or collateral required thereunder, unless all such adverse alterations or differences, as applicable, are immaterial, individually and in the aggregate, (y) individually or in the aggregate with other amendments or modifications, to adversely impact in any material respect covenants or events of default under the Floorplan Financing as they relate to the ability of the Acquired Companies to incur, maintain and perform their obligations in connection with the Debt Financing, or (z) individually or in the aggregate with other amendments or modifications, to adversely alter in any material respect any other terms of the Floorplan Financing; and
(vih) Seller Buyer shall deliver have obtained the Leased Premises Financing described in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically Financing Commitments on the terms set forth in Schedule II)the Financing Commitments in an amount that (together with the net proceeds Buyer shall have obtained from the Follow-On Financing) is sufficient for the Financing Purposes.
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s obligation The obligations of Buyer to consummate the transactions contemplated hereby in connection with the Closing is by this Agreement are subject to the satisfaction or waiver of the following conditionsconditions as of the Closing Date (any or all of which may be waived in whole or in part by Buyer):
(a) The representations and warranties of Seller set forth in Article V (other than the Seller Fundamental Representations) shall be true and correct in all material respects as of the date of this Agreement and the Closing Date (except those representations and warranties that address matters only as of a specified date, which shall be true and correct in all material respects as of that specified date);
(b) The Seller Fundamental Representations shall be true and correct in all respects as of the date of this Agreement and the Closing Date;
(c) Seller shall have performed in all material respects all of its obligations required to be performed under this Agreement at or prior to Closing;
(d) There shall not have occurred after the date of this Agreement any event, change, effect or development that has had or is reasonably expected to have, individually or in the aggregate, a Material Adverse Effect with respect to the Business, the Facility, or the Purchased Assets;
(e) No Proceeding shall be initiated, pending or threatened, in writing, nor shall there be any formal or informal inquiry by a Governmental Authority, which would reasonably be expected to result in a Governmental Order (nor shall there be any Governmental Order in effect) (i) which would prevent consummation of any of the transactions contemplated hereunder, (ii) which would result in any of the transactions contemplated hereunder being rescinded following consummation, (iii) which would materially limit or otherwise adversely affect the right of Buyer to operate all or any material portion of the Business, the Purchased Assets, or the Facility, or (iv) would compel Buyer or any of its Affiliates to dispose of all or any material portion of the Facility, the Business, or the Purchased Assets;
(f) Seller shall have assigned the Master Lease to Buyer pursuant to the terms of the Lease Assignment and Assumption Agreement in the form of Exhibit B hereto (the “Lease Assignment Agreement”);
(g) Seller shall have delivered or caused to be delivered to Buyer the following, in form and substance reasonably acceptable to Buyer:
(i) a certificate of Seller dated the representations and warranties set forth Closing Date stating that the preconditions specified in Section 22.a7.01(a), (b), (c) shall and (d) have been true satisfied;
(ii) the ▇▇▇▇ of Sale, in the form of Exhibit C hereto (the “▇▇▇▇ of Sale”), executed by Seller;
(iii) the Assignment and correct Assumption Agreement, in the form of Exhibit D hereto (the “Assignment and Assumption Agreement”), executed by Seller;
(iv) the Transition Services Agreement, in the form of Exhibit E hereto (the “Transition Services Agreement”), executed by Seller;
(v) a copy of the Lease Assignment Agreement and an estoppel certificate in connection with the Master Lease, each executed by the Master Lease Landlord;
(vi) terminations of the Parts and Production Services Supply Agreement, the Security Agreement and the Master Services Agreement, each as executed by Seller (the “Termination Agreements”);
(vii) the Closing Statement executed by Seller;
(viii) a duly executed consent to assign to Buyer the Power Supply Contract with City of Sheffield, Alabama dated September 10, 2009 (as assigned to Navistar on January 2, 2012);
(ix) the date hereof and Customer List, updated as of the Closing Date;
(x) evidence that all mortgages, security interests, collateral assignments and other Encumbrances (other than Permitted Encumbrances except for Permitted Encumbrances that must be paid off or released at or prior to Closing) on any of the extent expressly made Purchased Assets have been released, discharged and terminated in full, including payoff letters in connection therewith, and that termination statements with respect to all UCC financing statements relating to such Encumbrances have been filed at the expense of Seller; and
(xi) a certificate of good standing or its equivalent for Seller from the Secretary of State of the state of its incorporation and each other jurisdiction in which Seller is required to be qualified to conduct the Business;
(xii) a certificate of Seller certifying (A) the resolutions duly adopted by Seller authorizing and adopting the execution, delivery and performance of this Agreement and the other Transaction Documents to which it is a party and the consummation of all transactions contemplated hereby and thereby, (B) the Organizational Documents of Seller, and (C) the names and signatures of the officers of Seller authorized to sign this Agreement and the other Transaction Documents to which it is a party;
(xiii) a non-foreign affidavit dated as of an earlier datethe Closing Date, sworn under penalty of perjury and in which case form and substance required under Treasury Regulations issued pursuant to Code § 1445 stating that Seller is not a “foreign person” as of defined in Code § 1445;
(xiv) such date other documents and instruments as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not counsel for Buyer may reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller request to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II).
Appears in 1 contract
Sources: Asset Purchase Agreement (FreightCar America, Inc.)
Conditions to Buyer’s Obligations. Buyer’s The obligation of the Buyer to consummate purchase the transactions contemplated hereby in connection with Shares from the Closing Seller is subject to the satisfaction or waiver of the following conditionsconditions as of the Closing:
(i) the representations and warranties set forth contained in Section 22.a) 4 shall have been be, with respect to those representations and warranties qualified by any materiality standard, true and correct on in all respects as of the date hereof Closing Date, and with respect to all other representations and warranties, true and correct in all material respects at and as of the Closing (Date as though then made, except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate changes caused by the transactions expressly contemplated herein;
(ii) the Seller shall have performed caused the Company to have made all filings and complied with its covenants obtained all permits, authorizations, consents and agreements hereunder through approvals required to be obtained by the Closing in all material respectsCompany to consummate the transactions contemplated by this Agreement as set forth on Schedule 4(b);
(iii) the Buyer shall have obtained an opinion of Seller’s title in and 's counsel regarding the exemption from registration under the Securities Act of 1933 with respect to the Acquired Assets shall be good, valid and marketable and free transfer of the Shares from the Seller to the Buyer or a written waiver by the Company of all liens and encumbrancesopinion delivery requirements imposed by any legend on the certificates representing the Shares;
(iv) the Buyer shall have received the resignations, effective as of the Closing, of each director and officer (other than Arnold Roseman) of the Company and each Subsidiary of the ▇▇▇▇▇▇▇;
(v) the Seller shall have caused William G. Knuff, III and Robert E. Dixon to have been nom▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ors of the ▇▇▇▇▇▇▇;
(▇▇) the Buyer shall have received evidence reasonably satisfactory to Buyer that the Company has caused each of its Subsidiaries that is a broker-dealer and/or investment advisor to terminate such Subsidiaries' status as a broker-dealer and/or independent advisor in each state or jurisdiction in which such Subsidiary is registered as such;
(vii) the Buyer shall have received from the Seller, at least 15 days prior to the extent Closing, copies of any correspondence or comments from the NASD or any state, federal and local governments (and all agencies thereof) with respect to any complaint or investigation of Shochet Securities, Shochet Investment Advisors Corp. or any other Subsidiary of the Company referred to in the Schedules and all other correspondence or comments received after the date of this Agreement;
(viii) the Buyer shall have received evidence reasonably satisfactory to Buyer that (A) Shochet Securities, Inc. has paid to Seller becomes subject an aggregate amount equal to $44,109.00, such amount representing all amounts due under the Intercompany Services Agreement and (B) the Intercompany Services Agreement has been terminated and neither the Company nor any of its Subsidiaries owes any Person any amount thereunder;
(ix) the Buyer shall have received the Engagement Letter;
(x) each employment agreement (other than the employment agreement of Arnold Roseman) between the (i) Company and a Chapter 11 Proceeding Company employee and (▇▇) a Subsidiary of the Company and an employee of such Subsidiary, including without limitation, the employment agreements of Roger Gladstone, David Greenberg and Andrew Lockwood shall ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇na▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇tisfa▇▇▇▇▇ ▇▇ ▇▇▇▇▇;
(xi) the Seller shall have caused the Company to deliver to Buyer documents, reasonably satisfactory to Buyer (i) evidencing the Estimated Cash Amount and (ii) that will serve to remove as of the Closing, all signatories to the Company Cash Accounts immediately prior to the Closing as of the date hereof and replace such signatories with Robert E. Dixon and William G. Knuff, III;
(xii) the Sell▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇aused ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ transfer to the Company's new directors all documents, books, records (including tax records), agreements, and financial data of the Company; provided that Seller shall not have to deliver such documents, books, records agreements and financial data to a place other than the property described in the Boca Lease;
(xiii) the Buyer shall have received evidence reasonably satisfactory to the Buyer that any account (other than the accounts set forth on Schedule 4(j)) of a broker-dealer and/or investment advisor customer of the Company or its Subsidiaries has been terminated;
(xiv) since the date hereof, there shall have been no fact, event or circumstance which would reasonably be expected to have a Material Adverse Effect;
(xv) the Seller shall have delivered to the Buyer a certificate of an officer of the Seller, dated as of the Closing Date, stating that the conditions specified in Section 2(c)(i) and (1xiv) have been satisfied;
(xvi) the bankruptcy court Buyer shall have entered an order, in received a form copy of Schedule 14(f) and substance satisfactory evidence that such Schedule 14(f) was filed with the SEC and mailed to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller Company's shareholders at least 10 days prior to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(vxvii) each delivery contemplated by Section 11(a) to be delivered to the Buyer shall have been delivered; and
(vi) a received copy of the Escrow Agreement executed by Seller shall deliver and the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)Escrow Agent.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Sutter Holding Co Inc)
Conditions to Buyer’s Obligations. Buyer’s (a) The obligation of Buyer hereunder to consummate waive the transactions contemplated hereby in connection with Event of Default under the Closing Amended and Restated Promissory Note, and to purchase the Yield Enhancement Shares at the Closing, is subject to satisfaction the satisfaction, at or waiver before the Closing Date, of each of the following conditions, provided that these conditions are for Buyer’s sole benefit and may be waived by Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) The Company shall have executed and delivered to Buyer (A) each of the Transaction Documents, (B) the Amended and Restated Promissory Note, and (C) the stock certificates representing the Yield Enhancement Shares being purchased by Buyer at the Closing pursuant to this Agreement.
(ii) [Reserved].
(iii) [Reserved].
(iv) [Reserved].
(v) [Reserved].
(vi) The Company shall have delivered to Buyer a copy of the Irrevocable Transfer Agent Instructions attached hereto as Exhibit G, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.
(vii) The Company shall have delivered to Buyer a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date reasonably proximate to the Closing Date.
(viii) The Company shall have delivered to Buyer a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business, as of a date reasonably proximate to Closing Date.
(ix) The Company shall have delivered to Buyer a certificate evidencing, for each of the Company’s Subsidiaries, its qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which such Subsidiary conducts business, as of a date reasonably proximate to Closing Date.
(x) [Reserved].
(xi) [Reserved].
(xii) The Company shall have delivered to Buyer a certificate, executed by the Secretary of the Company and dated as of the Closing Date, in substantially the form attached hereto as Exhibit M, as to (A) the resolutions consistent with Section 3(b) as adopted by the Company’s Board of Directors, in a form reasonably acceptable to Buyer, (B) the Company’s Articles of Incorporation and (C) the Company’s Bylaws, each as in effect at the Closing.
(xiii) The Company shall have delivered to Buyer certificates, executed by the Secretary (or comparable officer or manager) of each of the Company’s Subsidiaries and dated as of the Closing Date, substantially in the form attached hereto as Exhibit M, as to (A) the resolutions consistent with Section 3(b) as adopted by such Subsidiary’s Board of Directors (or other governing body), in a form reasonably acceptable to Buyer, (B) such Subsidiary’s Articles of Incorporation (or other formation documents) and (C) such Subsidiary’s Bylaws (or other operating agreements), each as in effect at the Closing.
(xiv) The representations and warranties set forth in Section 22.a) of the Company and its Subsidiaries shall have been be true and correct on as of the date hereof when made and as of the Closing Date as though made at that time (except to the extent expressly made for representations and warranties that speak as of an earlier a specific date, in which case shall be true and correct as of such date as if made at and as of such specific date), except where and the failure of such representations Company and warranties its Subsidiaries shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole performed, satisfied or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through by the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding Company at or prior to the Closing Date, (1) the bankruptcy court . Buyer shall have entered an orderreceived certificates, executed by the Chief Executive Officer (or duly authorized officer or director for foreign Subsidiaries) of the Company and its Subsidiaries, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by Buyer, substantially in a the form attached hereto as Exhibit N.
(xv) [Reserved].
(xvi) The Company shall have obtained all governmental, regulatory or third party consents and substance satisfactory approvals, if any, necessary for the sale of the Securities.
(xvii) Each of the Subsidiaries shall have executed and delivered to Buyer and Seller this Agreement.
(the “Sale Order”), xviii) [Reserved].
(Axix) approving this Agreement and all of the terms and conditions hereof, and [Reserved].
(Bxx) approving and authorizing Seller [Reserved].
(xxi) [Reserved].
(xxii) [Reserved].
(xxiii) The Company shall have delivered to consummate Buyer such other documents relating to the transactions contemplated herein, including by this Agreement as Buyer or its counsel may reasonably request.
(xxiv) There is a valid exemption under the assumption 1933 Act regarding the offering and assignment sale of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;Yield Enhancement Shares.
(vxxv) each delivery contemplated by Section 11(a[Reserved].
(xxvi) to be delivered to Buyer shall There have been delivered; andno material adverse changes in the business condition (financial or otherwise), earnings or properties of the Company.
(vixxvii) Seller shall deliver There has been no material disruption in the Leased Premises market for Common Stock (including, but not limited to, a material decrease in vacant, broom clean condition with all FF&E, the trading price or trading volume of the Common Stock) or the U.S. stock markets as a whole.
(including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)b) [Reserved].
Appears in 1 contract
Sources: Securities Purchase Agreement (Atlas Technology Group, Inc.)
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate pay the transactions contemplated hereby in connection Purchase Price, and to accept title to the Partnership Interests, shall be subject to compliance by Seller with the Closing is subject to satisfaction or waiver following conditions precedent on and as of the following conditionsdate of each Closing:
(ia) Seller shall deliver to Buyer on or before the representations and warranties Closing the items set forth in Section 22.a7 above;
(b) The representations and warranties of Seller contained in this Agreement shall have been true when made and correct on the date hereof shall be true in all material respects at and as of the date of Closing (except to the extent expressly made as of an earlier date, in which case as of such date as if such representations and warranties were made at and as of such date)the Closing, except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;respects with all covenants, agreements and conditions required by this Agreement to be performed or complied with by Seller prior to or at the Closing; and
(iiic) Seller’s title No Material Adverse Change shall have occurred. In the event that the foregoing conditions precedent have not been satisfied as of the Closing Date as to any Option Holder, Buyer may, as its sole and exclusive remedy, either: (i) waive any unsatisfied conditions and proceed to Closing in accordance with the terms and provisions hereof; (ii) by notice to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to given on or before the Closing Date, extend the Closing Date for a period of up to thirty (130) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller days (the “Sale OrderClosing Extension Period”), and the “Closing Date” shall be moved to the last day of the Closing Extension Period, or (Aiii) approving terminate this Agreement, in which event this Agreement shall become null and void, Buyer shall receive a refund of the ▇▇▇▇▇▇▇ Money, and all rights, liabilities and obligations of the parties under this Agreement shall expire, except as otherwise expressly set forth herein; provided that if such failure of condition is caused by Seller, Seller shall pay to Buyer the out-of-pocket costs and expenses incurred by Buyer in connection with this Agreement in an amount not to exceed $250,000.00. If Buyer elects to extend the Closing Date in accordance with (ii) of the immediately preceding sentence, then Seller may, but shall not be obligated to, cause said conditions to be satisfied during the Closing Extension Period. If Seller does not cause said conditions to be satisfied during the Closing Extension Period, then Buyer may, as its sole and exclusive remedy, either: (i) waive any unsatisfied conditions and proceed to Closing in accordance with the terms and conditions provisions hereof; or (ii) terminate this Agreement, in which event this Agreement shall become null and void, Buyer shall receive a refund of the ▇▇▇▇▇▇▇ Money, and (B) approving all rights, liabilities and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment obligations of the Leases parties under this Agreement shall expire, except as otherwise expressly set forth herein; provided that if such failure of condition is caused by Seller, Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered pay to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises out-of-pocket costs and expenses incurred by Buyer in vacant, broom clean condition connection with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth this Agreement in Schedule II)an amount not to exceed $250,000.00.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Harleysville National Corp)
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate the transactions contemplated hereby in connection with Transactions at the Closing is subject to satisfaction the satisfaction, or written waiver by Buyer, of each of the following conditions:
(a) (i) all of the representations and warranties set forth of Seller and each Principal in Section 22.a) shall have been this Agreement must be true and correct on the date hereof and as of the Closing in all material respects (except to the extent expressly made as of an earlier dateany such representations or warranties are qualified by materiality, in which case as of such date as if made at and as of such date), except where the failure of such representations and or warranties to shall be so true and correct has not had in all respects); and would not reasonably (ii) Seller and each Principal must have performed and complied with all of their respective covenants and obligations under this Agreement to be expected performed by them prior to or at the Closing.
(b) on or before the Closing, Seller shall have a material adverse effect on delivered the condition of Acquired Assets as a whole or on following to Buyer, in form and substance satisfactory to Buyer, acting reasonably:
(i) the ability of Seller to consummate the transactions contemplated hereinEscrow Agreement, executed by Seller;
(ii) the Non-Competition Agreements, executed by Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respectseach Principal;
(iii) Seller’s title in and to the Acquired Assets shall be goodEmployment Agreement, valid and marketable and free of all liens and encumbrancesexecuted by ▇▇▇▇▇;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing DateTransition Services Agreement, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases executed by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing DateSeller;
(v) Audited Financial Statements, prepared in accordance with GAAP with a reconciliation to U.S. GAAP, applied on a consistent basis throughout the periods covered thereby and audited in accordance with Generally Accepted Auditing Standards of the United States of America;
(vi) an opinion from Seller’s counsel, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ LLP and Field Law LLP, in the form attached hereto as Exhibit F, addressed to Buyer and its counsel for which such counsel may rely on a certificate of Seller as to factual matters;
(vii) all bills of sale, assignments, instruments of transfer, deeds, assurances, consents and other documents as shall be necessary or desirable to effectively transfer to Buyer the Purchased Assets and Assumed Liabilities, in each delivery contemplated case, executed by Section 11(aSeller;
(viii) actual possession of the Purchased Assets, free and clear of all Encumbrances;
(ix) share certificates representing all of the issued and outstanding shares in the capital of the Acquired Subsidiary, duly endorsed in blank for transfer, or accompanied by irrevocable share transfer powers duly executed in blank;
(x) resignations and releases from the directors and officers of the Acquired Subsidiary;
(xi) a certificate of an officer of Seller and each Principal that is not a natural person, in form and substance reasonably satisfactory to Buyer, certifying, in such officer’s capacity as an officer of Seller or such Principal, as applicable, and not in his or her personal capacity, that: (A) attached thereto is a true, correct and complete copy of: (1) the Organizational Documents of Seller or such Principal, as applicable; (2) to be delivered the extent applicable, resolutions duly adopted by the board of directors and shareholders of Seller or such Principal, as applicable, authorizing the performance of the Transactions and the execution and delivery of the Transaction Documents; and (3) a certificate of status or good standing as of a recent date for Seller or such Principal, as applicable, from its jurisdiction of organization, and from each jurisdiction in which it is qualified to Buyer shall have been deliveredconduct business; (B) the resolutions referenced in subsection (A)(2) are in full force and effect as of the Closing Date; and (C) nothing has occurred since the date of the issuance of the certificate(s) referenced in subsection (A)(3) that would adversely affect the existence or good standing of Seller or such Principal, as applicable;
(xii) a certificate of an officer of the Acquired Subsidiary, in form and substance reasonably satisfactory to Buyer, certifying, in such officer’s capacity as an officer of the Acquired Subsidiary, and not in his or her personal capacity, that: (A) attached thereto is a true, correct and complete copy of: (1) the Organizational Documents of the Acquired Subsidiary; and (2) a certificate of status or good standing as of a recent date for such Acquired Subsidiary from its jurisdiction of organization, and from each jurisdiction in which it is qualified to conduct business; and (B) nothing has occurred since the date of the issuance of the certificate(s) referenced in subsection (A)(2) that would adversely affect the existence or good standing of the Acquired Subsidiary; and
(vixiii) such other documents as Buyer may reasonably request for the purpose of (A) evidencing the accuracy of Seller’s and/or each Principal’s representations and warranties hereunder; (B) evidencing Seller’s and/or each Principal’s performance of, and compliance with, any covenant or agreement required to be performed or complied with by Seller and/or the Principals hereunder; (C) evidencing the satisfaction of any condition referred to in this Section 6.1; or (D) otherwise facilitating the performance of the Transactions.
(c) Seller shall deliver have (i) caused all Encumbrances on the Purchased Assets (other than Permitted Encumbrances) to be fully and irrevocably satisfied, removed, released and discharged in all respects; and (ii) except with respect to Permitted Encumbrances, duly filed and recorded, or caused to have been duly filed and recorded, such financing change statements or other evidences of the satisfaction, removal and discharge thereof all in form and substance reasonably satisfactory to Buyer;
(d) each Consent listed in Schedule 4.6(b) must have been obtained, delivered to Buyer, be in full force and effect and in a form approved by Buyer;
(e) there must not be any Proceeding pending or threatened against Seller, the Acquired Subsidiary or any of their Affiliates or any of the Principals that (i) challenges or seeks damages or other relief in connection with the Transactions; or (ii) may have the effect of preventing, delaying, making illegal or interfering with the Transactions;
(f) the performance of the Transactions must not, directly or indirectly, with or without notice or lapse of time, violate any Law; and
(g) no damage or destruction or other change shall have occurred with respect to any of the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation Real Property or any portion thereof that would materially impair the Computer and Security Equipment, operation of the Business as specifically set forth in Schedule II)currently conducted.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Tire Distributors Holdings, Inc.)
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate the transactions contemplated hereby in connection with the Closing is subject to satisfaction or waiver of the The following conditions:
(i) the representations and warranties set forth in Section 22.a) shall conditions have been true and correct satisfied or waived on the date hereof and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, :
(1a) the bankruptcy court Sellers shall have entered an orderreceived or obtained all third-party consents and approvals identified on Schedule 2.1(a) (collectively, in a form and substance satisfactory to Buyer and Seller (the “Sale OrderThird-Party Approvals”), if any, in each case the form of which shall be reasonably satisfactory to Buyers;
(b) All governmental and regulatory consents, approvals, and authorizations identified on Schedule 2.1(b) (collectively, the “Governmental Approvals”) shall have been obtained;
(c) No injunction, judgment, order, decree or ruling is in effect that would prevent the performance of this Agreement or the consummation of any of the transactions contemplated hereby or declare unlawful any of the transactions contemplated hereby;
(d) Sellers shall have delivered to Buyers a payoff letter, release, and lien discharge issued by each holder, if any, of Closing Indebtedness described in clauses (i) and (ii) of the definition of Indebtedness, setting forth the amount of such Closing Indebtedness and evidencing the release of all Encumbrances (other than Permitted Encumbrances) on the Transferred Companies’ assets securing such Closing Indebtedness;
(e) CompX shall deliver to Buyers the FIRPTA Affidavit;
(f) At the Closing, Sellers shall have delivered to Buyers (i) copies of all Third-Party Approvals (if applicable) and (as applicable) Governmental Approvals; (ii) certified copies of the (A) approving this Agreement and all articles of incorporation, certificate of formation, memorandum of association, by-laws and/or other governing documents of the terms and conditions hereof, Transferred Companies and (B) approving resolutions of Sellers’ boards of directors authorizing the execution, delivery and authorizing Seller to consummate performance of this Agreement and the other agreements contemplated hereby and the consummation of the transactions contemplated hereinhereby and thereby; (iii) the resignations, including the assumption and assignment effective as of the Leases Closing, of each director and officer of the Transferred Companies requested by Seller Buyers prior to Buyerthe Closing; (iv) any applicable foreign jurisdiction good standing equivalent (if any) for each of the Transferred Companies from their respective jurisdictions of incorporation, and (2) no order staying, reversing, modifying in each case dated as of a recent date prior to or amending the Sale Order shall be in effect on the Closing Date;
; and (v) each delivery contemplated by Section 11(a) such other documents or instruments as are required to be delivered by Sellers or the Transferred Companies at the Closing pursuant to Buyer shall have been deliveredthe terms hereof; and
(vig) Seller the Insurance Policy shall deliver be in full force and effect as of the Leased Premises Closing in vacantsubstantially the form previously agreed by the parties hereto. Any condition specified in this Section 2.1 that has been waived by Buyers is set forth in a writing duly executed by Buyers. If Buyers waive the condition set forth in Section 2.1(g), broom clean then, notwithstanding anything to the contrary in this Agreement, the Insurance Premium Allocation shall not reduce or be subtracted from the Base Price for purposes of calculating the Purchase Price and the Estimated Purchase Price. Any waiver by Buyers of such condition with all FF&Eshall not affect the limitations on indemnification contained in this Agreement, (including without limitation the Computer and Security Equipment, as specifically those set forth in Schedule IISection 5.2(a).
Appears in 1 contract
Sources: Securities Purchase Agreement (Compx International Inc)
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate make the transactions contemplated hereby in connection with deliveries required of Buyer at the Closing is shall be subject to the satisfaction or waiver by Buyer of each of the following conditions:
(i) the 4.2.1 All representations and warranties set forth in Section 22.a) of Seller contained herein shall have been continue to be true and correct on the date hereof and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;, all covenants and obligations to be performed by Seller prior to the Closing shall have been performed in all material respects, and Seller shall have certified the foregoing to Buyer in writing.
4.2.2 Seller shall have delivered to Buyer appropriate evidence of all necessary action by Seller in connection with the transactions contemplated hereby, including, without limitation: (i) certified copies of resolutions duly adopted by governing body of Seller approving the transactions contemplated by this Agreement and authorizing the execution, delivery and performance by Seller of this Agreement; (ii) a certificate as to the incumbency of officers or other authorized agents of Seller executing this Agreement and any instrument or other document delivered in connection with the transactions contemplated by this Agreement and (iii) a legal opinion of legal counsel to Seller regarding due authorization of the transactions contemplated hereby and such other matters as may be reasonably requested by Buyer.
4.2.3 Seller shall have executed and delivered to Buyer the Assignment Agreement, the ▇▇▇▇ of Sale and each other document reasonably requested by Buyer pursuant to Sections 1.2 and 3.3.
4.2.4 Photonics Management Corporation shall have executed and delivered to Buyer a lease agreement, substantially in the form attached hereto as Exhibit E, pursuant to which Photonics Management Corporation) leases to Buyer for six (6) months from the Closing Date, for no consideration other than as set forth in the last sentence of this paragraph, sufficient space in Seller’s title in and facility to the Acquired Assets shall be good, valid and marketable and free accommodate those of all liens and encumbrances;
(iv) Seller’s employees that Buyer elects to the extent that Seller becomes subject to a Chapter 11 Proceeding prior employ subsequent to the Closing Date, (1) in working space substantially equivalent to that occupied by such employees as of the bankruptcy court Execution Date, permitting such employees to use telephone equipment and computer network access to the same extent as available prior to the Closing Date but in a manner which does not interfere with the conduct or confidentiality of the Other Business. Such lease agreement shall require Buyer to reimburse Photonics Management Corporation or its successors or assigns for its proportionate share of operating expenses, utilities and common area charges associated with the Seller’s facility.
4.2.5 Hamamatsu shall have executed and delivered to Buyer an assignment of Hamamatsu’s right, title and interest in the R&D Property in the form attached hereto as Exhibit F.
4.2.6 No action, suit or other proceeding shall be pending before any court, tribunal or governmental authority seeking or threatening to restrain or prohibit the consummation of the transactions contemplated by this Agreement, or seeking to obtain substantial damages in respect thereof, or involving a claim that consummation thereof would result in the violation of any law, decree or regulation of any governmental authority having appropriate jurisdiction.
4.2.7 The Bankruptcy Court shall have entered the Procedure Order substantially in the form attached as Exhibit G in accordance with Section 8.4.1 below by July 31, 2004 and the Final Approval Order substantially in the form attached as Exhibit H in accordance with Section 8.4.2 below. If an orderApproval Order substantially in the form attached as Exhibit H is entered, Buyer may waive the requirement that it be a Final Approval Order.
4.2.8 There shall not have occurred a material casualty of any nature with respect to the Seller’s DMSVision Software business, Seller shall not have a material diminution in a its customer base, employees or prospects at its Massachusetts facility nor shall any material adverse change of comparable significance have occurred or be reasonably likely to occur in the DMSVision Software business or its prospects. The foregoing shall not include the taking of any action contemplated by this Agreement and the other agreements contemplated hereby, or any existing event, occurrence, or circumstance with respect to which Buyer has knowledge as of the Execution Date.
4.2.9 All authorizations, consents, filings and approvals necessary to permit Seller to perform the transactions contemplated hereby shall have been duly obtained, made or given, shall be in form and substance satisfactory reasonably acceptable to Buyer, shall not be subject to the satisfaction of any condition that has not been satisfied or waived and shall be in full force and effect. All terminations or expirations of waiting periods imposed by any governmental authority necessary for the transaction contemplated under this Agreement, if any, shall have occurred. Seller shall use commercially reasonable efforts to seek such authorization, consent, filings or approvals and, where appropriate, Buyer and at no material cost to it will assist when requested by Seller (in seeking such authorization, consent, filing or approval.
4.2.10 No order shall have been issued that is inconsistent with the “Sale Order”), (A) approving sale of the Assets pursuant to this Agreement and all or otherwise restricting, prohibiting or staying the consummation of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)this Agreement.
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate the transactions contemplated hereby in connection with the Closing is subject to satisfaction or waiver of the following conditions:
(a) (i) the representations and warranties set forth in Section 22.a3.2 (Authorization of Transaction), Section 3.3 (Noncontravention), Section 3.5 (Sufficiency of Assets), Section 3.6 (Financial Statements), Section 3.11(a) (Material Contracts), Section 3.14 (Legal Compliance), Section 3.15 (Litigation) and Section 3.17 (Product Liability) shall have been true and correct on the date hereof and shall be true and correct in all material respects at and as of the Closing Date as if made at and as of such time (in either case except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date); and (ii) the other representations and warranties set forth in Article III shall have been true and correct on the date hereof and shall be true and correct at and as of the Closing Date as if made at and as of such time (in either case except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date), in either case contemplated by this clause (ii) except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “material” or “Material Adverse Effect” set forth therein) has not had and would not reasonably be expected to have resulted in a material adverse effect Material Adverse Effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinBusiness;
(iib) Seller and Newco shall have performed and complied with its their covenants and agreements hereunder through the Closing in all material respects;
(iiic) Seller’s title in and (i) all notices to third parties contemplated by Section 5.3(a) of the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) Disclosure Schedule to the extent that Seller becomes subject to a Chapter 11 Proceeding have been delivered on or prior to the Closing Date, (1) the bankruptcy court shall have entered an orderbeen delivered, and all third party consents or sublicenses or permits contemplated by Section 5.3(a) of the Disclosure Schedule to have been received on or prior to the Closing shall have been received, except where the failure to deliver such notices or to receive such consents or sublicenses or permits does not have a material adverse impact on the Business or result in a form and substance satisfactory material liability to Buyer and Seller (the “Sale Order”)Buyer, (A) approving this Agreement and all of the terms and conditions hereofNewco or Holdings, and (Bii) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment Buyer shall have received evidence of each of the Leases foregoing reasonably satisfactory to it;
(i) all applicable waiting periods (and any extensions thereof) under any Antitrust Law shall have expired or otherwise been terminated and Sellers, Holdings, Newco and Buyer shall have received all other authorizations, consents, clearances and approvals of Governmental Authorities contemplated by Seller Section 5.3(b) of the Disclosure Schedule to have been received on or prior to the Closing, where the failure to have received such other authorizations, consents, clearances and approvals would have a Material Adverse Effect on the Business or Buyer, and (2ii) Buyer shall have received evidence of each of the foregoing reasonably satisfactory to it;
(e) no order staying, reversing, modifying or amending the Sale Order Decree shall be in effect on which (i) prohibits consummation of any of the Closing Datetransactions contemplated by this Agreement, or (ii) would be reasonably expected to result in any of the transactions contemplated by this Agreement being rescinded following consummation thereof;
(vf) each delivery contemplated by Section 11(a) 2.8 to be delivered by Seller, Newco or Holdings to Buyer Buyer, Newco or Holdings shall have been delivered;
(g) Buyer shall have received the aggregate proceeds from the Equity Financing pursuant to the terms of the Equity Financing Commitment and borrowing available pursuant to the Debt Financing of at least Seventy-Five Million Dollars ($75,000,000) under the ABL; and
(vih) Seller Buyer shall deliver have received evidence of the Leased Premises in vacantrelease of the Liens (i) under the security documents contemplated by the credit agreements of Solutia and certain of its Subsidiaries, broom clean condition dated February 28, 2008, with all FF&E, respect to any Contributed Assets or any Newco Units and (including without limitation ii) under the Computer and Security Equipment, as specifically caption “Intellectual Property Liens” set forth in Schedule II)Section 3.4 of the Disclosure Schedules, but only to the extent such Liens contemplated by this clause (ii) are material to the Business.
Appears in 1 contract
Sources: Transaction Agreement (Solutia Inc)
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate perform the transactions Transactions contemplated hereby in connection with to be performed on or about the Closing Date is subject to satisfaction satisfaction, or written waiver by Buyer, of each of the following conditions:
(a) (i) All of the representations and warranties set forth of Seller in Section 22.a) shall this Agreement must have been true and correct on accurate in all material respects as of the date hereof and as of the Closing (except to the extent expressly made as of an earlier date, must be accurate in which case as of such date all material respects as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
Closing Date, (ii) Seller shall must have performed and complied with all of its covenants and agreements hereunder through in this Agreement to be performed prior to or at the Closing in all material respects;
Closing, and (iii) Seller’s title Seller must deliver to Buyer at the Closing a certificate, in the form reasonably satisfactory to Buyer, confirming satisfaction of the conditions in clauses (i) and to (ii) above; provided, however, that such certificate, for purposes of the Acquired Assets shall be goodobligations under Article IX, valid will certify that all of the representations and marketable and free warranties of Seller in this Agreement are accurate in all liens and encumbrances;respects as if made on the Closing Date.
(ivb) to the extent that Seller becomes subject to a Chapter 11 Proceeding On or prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (Awill attach Schedule 2.1(d) approving to this Agreement and all such schedule will set forth the Acquired Accounts Receivable.
(c) On or prior to the Closing Date, Buyer, Seller and W▇▇▇▇ Fargo will enter into the W▇▇▇▇ Fargo Agreement.
(d) Seller shall (i) deliver to Buyer on the Closing Date instruments of assignment in the form attached hereto as Exhibit A effecting the transfer of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Intellectual Property from Seller to Buyer, and (2ii) no order stayingcomplete all actions required to transfer to Buyer all registrations corresponding to the Domain Names and provide evidence of the completion of such action to Buyer.
(e) Seller shall file with the United States Patent and Trademark Office within the regulatory grace period the renewal documents for Primary Registration U.S. Reg. No. 1,882,281 for EL DORADO, reversing, modifying and provide evidence of the completion of such action to Buyer.
(f) On or amending the Sale Order shall be in effect on prior to the Closing Date;, Seller shall file the necessary documents with the United States Copyright Office and all other public offices as required to evidence ownership of the registrations associated with the Copyrights in Seller.
(vg) each delivery contemplated by Section 11(a) On or prior to be delivered the Closing Date, Seller shall file the necessary documents with the appropriate state and foreign offices as required to Buyer shall evidence record ownership of the state registrations and the foreign registrations that have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipmentdesignated as Primary Registrations, as specifically set forth in Schedule II2.1(a), in Seller.
(h) On or prior to the Closing Date, Seller shall execute the Release of Security Interest and Release and Reassignment documents attached hereto as Exhibit E (collectively, the “Releases”), and shall file such documents with the United States Patent and Trademark Office and all other public offices as required to evidence unencumbered ownership of the applicable Marks in Seller.
(i) On or prior to the Closing Date, Seller shall provide to Buyer all available books and records evidencing the sales of the Primary Registrations on or in connection with the goods and services.
(j) The Procedures Order and the Approval Order, shall have been entered and shall not have been appealed, modified, amended, dissolved, revoked or rescinded in any material respect.
Appears in 1 contract
Conditions to Buyer’s Obligations. 10.1 Buyer’s 's obligations hereunder, including the obligation to consummate purchase and pay for the transactions contemplated hereby in connection with the Closing is Property, are subject to the satisfaction or waiver of the following conditions, any of which may be waived by Buyer, in a writing signed by Buyer:
(ia) the The representations and warranties set forth made by Seller in Section 22.a) shall have been this Agreement being true and correct in all material respects on the date hereof and as of the Closing (except to Date with the extent expressly made same force and effect as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of though such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition been made as of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(vb) each delivery contemplated Seller having performed in all material respects all covenants and obligations required by this Agreement to be performed by Seller on or prior to the Closing Date;
(c) Buyer receiving, at Closing, an ALTA (or TLTA equivalent acceptable to Buyer) Seller's Extended Coverage Policy of Title Insurance insuring good, clear, record, marketable and fee simple title to the Property subject only to the Permitted Exceptions;
(d) Seller delivering possession of the Property free and clear of all tenants, other than the United States General Services Administration;
(e) Between the expiration of the Due Diligence Period and the Closing Date, there shall have occurred no material adverse change in the environmental conditions of the Property or to the physical condition of the Property, reasonable wear and tear excepted; provided, however, that the parties acknowledge and agree that certain adverse changes to the physical condition of the Property will be governed by Section 11(a12 below and with respect to those changes, Section 12 will determine whether or not they are grounds for termination of this Agreement;
(f) Conditioned upon Seller having entered into a lease with the United States Government General Services Administration for the subject properties in their entirety providing for the gross rent and expense escalators earlier represented to Buyer by Seller's agent in the APOD which lease is not terminable by Tenant prior to August 28, 2015;
(g) Approval of the acquisition by the Board of Directors of Buyer, such approval and notice thereof to be delivered forthcoming in written form prior to the end of the Due Diligence Period. Should the Board of Directors of Buyer not approve the acquisition prior to the end of the Due Diligence Period, Buyer shall have been delivered; andthe right to terminate without penalty or liability to Seller and the Deposit together with interest accrued thereon, if any, shall be returned to Buyer;
(vih) Delivery to Buyer of all documents and records reasonably required and necessary to fulfill its disclosure obligations as a public company, including financial information on the Property for five (5) years (or as long as owned by Seller if fewer than five (5) years) sufficient to enable Buyer's auditors, at Buyer's cost, to prepare a ALCPA standard audited financial statements, provided that Buyer shall promptly notify Seller, in writing, of any deficiency in such reasonably required materials and Buyer may delay the Closing pending production of such documents necessary to cure such deficiency; provided, however, that Seller shall deliver not be required to create any materials that do not already exist.
10.2 If any of the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically conditions set forth in Schedule II)Section 10.1 above are not satisfied, Buyer, by written notice delivered to Seller on or before the Closing may elect to (a) waive such condition and proceed with the Closing, or (b) terminate this Agreement and have the Deposit returned to it.
10.3 The parties acknowledge that in addition to the matters set forth in Section 10.1, under certain circumstances, Defect of Title that are not Permitted Exceptions and which are timely objected to as provided in Section 4 above, may become conditions to Buyer's obligations hereunder, subject to and in accordance with Section 4.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Government Properties Trust Inc)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction or waiver of the following conditionsadditional conditions as of the Closing:
(ia) the The representations and warranties set forth of Seller and Partners contained in Section 22.a) shall have been this Agreement which are not qualified as to materiality will be true and correct on in all material respects as of the date hereof and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date Date as if made at and as of each such date), except where date and the failure of such representations and warranties of Seller and Partners contained in this Agreement which are qualified as to materiality or Material Adverse Effect will be so true and correct has not had in all respects as of the date hereof and would not reasonably as of the Closing Date as if made at and as of each such date (in each case, except those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time, which need only be expected true and accurate (or true and accurate in all material respects, as applicable) as of such date or with respect to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinsuch period);
(iib) Seller shall and Partners will have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in respects with the obligations and covenants required by this Agreement to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding performed or complied with by them on or prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(vc) each delivery contemplated by Section 11(a) to be Seller and Partners will have delivered to Buyer shall a certificate, dated the Closing Date certifying as to the satisfaction of the conditions set forth in Sections 8.2(a) and 8.2(b) of this Agreement.
(d) Seller will have obtained releases of all Liens of whatever nature relating to the Purchased Assets (other than the Permitted Liens), and provided to Buyer payoff letters and termination statements under the Uniform Commercial Code and other instruments as may be reasonably requested by Buyer to release all Liens on the Purchased Assets (other than the Permitted Liens);
(e) Seller will have received or obtained all third party consents and approvals that are identified on Schedule 8.2(e);
(f) Since the date of this Agreement, there will have been deliveredno Material Adverse Effect;
(g) Each Partner and the other individuals listed on Schedule 8.2(g) will have executed employment agreements with Buyer, in the forms attached hereto as Exhibit A, to be effective as of the Closing Date;
(h) Seller will have delivered to Buyer a non-foreign Person affidavit as of the Closing Date, and in form and substance required under the Treasury Regulations issued pursuant to Section 1445 of the Code stating that Seller is not a “foreign person” as defined in Code Section 1445;
(i) Seller will have taken all actions specified on Schedule 8.2(i);
(j) Not less than 90% of Seller’s employees listed on Schedule 7.8 will have accepted Buyer’s offers of employment; and
(vik) In addition to any other documents to be delivered or actions to be taken under other provisions of this Agreement, at the Closing, Seller shall will deliver to Buyer:
(i) appropriately executed instruments of sale, transfer, assignment, conveyance and delivery, deeds, assignments and assumption of leases, bills of sale, assignments and assumptions, intellectual property assignments or other intellectual property conveyance documents, certificates of title, vehicle titles, Transfer Tax declarations and all other instruments of conveyance which are reasonably necessary or reasonably desirable to effect transfer to Buyer of good title to the Leased Premises Purchased Assets (free and clear of all Liens, other than Permitted Liens), including documents acceptable for recordation in vacantthe United States Patent and Trademark Office, broom clean condition the United States Copyright Office and any other similar domestic or foreign office, department or agency (it being understood that all of the foregoing will be reasonably satisfactory in form and substance to Buyer and its counsel, will be consistent with all FF&Ethe terms of this Agreement and will not include any representation, warranty or covenant that imposes greater liability on Seller or Partners than would otherwise obtain under this Agreement); and
(including without limitation ii) certified copy of the Computer resolutions of Seller authorizing the execution, delivery, and Security Equipment, as specifically set forth in Schedule II)performance of this Agreement and the Ancillary Agreements and the consummation of the transactions provided for herein and therein.
Appears in 1 contract
Sources: Asset Purchase Agreement (Heidrick & Struggles International Inc)
Conditions to Buyer’s Obligations. Buyer’s obligation The obligations of Buyer to consummate and effect the transactions contemplated hereby in connection with the Closing is Transactions are subject to the satisfaction (or, if permitted by applicable Law, written waiver by Buyer) at or waiver prior to the Closing, of each of the following conditions:
(a) (i) the representations Fundamental Representations of Seller, Bank and warranties set forth in Section 22.a) Parent shall have been be true and correct on in all respects as of the date hereof and as of the Closing Date (except to the extent expressly made that those representations and warranties that specifically address matters only as of an earlier date, a particular date shall remain true and correct in which case as of such date as if made at and all respects as of such date), except where ) and (ii) all of the failure of such other representations and warranties to of Seller in Article III, the Bank in Article IV and the Parent in Article V shall be so true and correct has as of the date hereof and as of the Closing Date (except that those representations and warranties that specifically address matters only as of a particular date shall remain true and correct in all material respects as of such date) in all material respects (except for those representations and warranties qualified by material, materiality, “Material Adverse Effect,” or similar expressions, which shall be true and correct in all respects);
(b) each of Seller, Bank and Parent shall have performed and complied with, in all of its material respects, all of its covenants and agreements in this Agreement to be performed prior to or at the Closing;
(c) since the Most Recent Fiscal Year End, there shall not had have occurred any Material Adverse Effect; and
(d) each of the following documents must have been delivered to Buyer and would not dated as of the Closing Date (unless otherwise indicated):
(i) a certificate duly executed by Seller, in form and substance reasonably be expected satisfactory to have a material adverse effect on Buyer, confirming satisfaction of the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinconditions in clauses (a), (b) and (c) above;
(ii) Seller shall have performed a bill of sale in the form of Exhibit B hereto (the “Bill of Sale”) and complied with its covenants and agreements hereunder through the Closing in all material respectsduly executed by ▇▇▇▇▇▇;
(iii) an assignment and assumption agreement in the form of Exhibit C hereto (the “Assignment and Assumption Agreement”) and duly executed by Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) with respect to the extent that Seller becomes subject to location at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ (the “Wakefield Lease”), a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory sublease agreement on commercially reasonable terms mutually agreeable to Buyer and Bank, duly executed by Bank, and, if necessary, Bank’s signature shall be witnessed and/or notarized;
(v) with respect to each Assumed Lease, an Assignment and Assumption of Lease substantially in the form of Exhibit D (each, an “Assignment and Assumption of Lease”), duly executed by Seller and, if necessary, Seller’s signature shall be witnessed and/or notarized;
(vi) a certificate pursuant to Treasury Regulations Section 1.1445-2(b) (the “Sale OrderFIRPTA Certificate”), ) that Bank is not a foreign person within the meaning of Section 1445 of the Code duly executed by Bank;
(vii) a certificate executed by a duly appointed officer of Seller certifying as correct and complete the following: (A) approving the sole member of Seller authorizing the execution and delivery of this Agreement and all performance by Seller of the terms Transactions, certifying that such resolutions were duly adopted, have not been amended or rescinded, and conditions hereofare in full force and effect, (B) a copy of the Organizational Documents of Seller, and (BC) approving and authorizing a good standing certificate (or document of similar import) of Seller to consummate the transactions contemplated herein, including the assumption and assignment from its state of the Leases by Seller to Buyer, and jurisdiction dated within thirty (230) no order staying, reversing, modifying or amending the Sale Order shall be in effect on days of the Closing Date;
(vviii) duly executed payoff letters from each delivery contemplated holder of Indebtedness of Seller, in form and substance reasonably satisfactory to Buyer, which sets forth (a) the amount required to repay in full all the Indebtedness owed to such holder on the Closing Date, (b) the wire transfer instructions for the repayment of such Indebtedness to such holder, and (c) a release of all Encumbrances held by Section 11(a) such holder on the Purchased Assets otherwise arising with respect to such Indebtedness (such release to be delivered effective upon the payment of such Indebtedness) (each, a “Payoff Letter”), together with all applicable release documentation evidencing the termination of all Encumbrances on the Purchased Assets securing such Indebtedness;
(ix) for Transaction Expenses payable to a service provider, copies of complete and final invoices with respect to the Transaction Expenses contemplated to be at Closing, issued not less than three (3) Business Days prior to the Closing Date and setting forth the wire transfer instructions for such service provider (each, an “Invoice”);
(x) a duly executed lease by and between Bank and Buyer, on commercially reasonable terms mutually agreeable to Buyer shall have and Bank, for the real property set forth in Section 3.14(a) of the Seller Disclosure Schedule (the “Owned Real Property Lease”);
(xi) a duly executed Transition Services Agreement between the Bank and Buyer in substantially the form attached hereto as Exhibit E (the “Transition Services Agreement”);
(xii) a License Agreement in the form of Exhibit F (the “License Agreement”), duly executed by Bank;
(xiii) a Client Services Agreement in the form of Exhibit G duly executed by Bank;
(xiv) a duly executed referral agreement duly executed by Bank, by and between Bank and Buyer, on commercially reasonable terms mutually agreeable to Buyer and Bank (the “Referral Agreement”);
(xv) evidence of a bindable quotation for the Tail Policies, in each case in form and substance reasonably satisfactory to Buyer;
(xvi) evidence, in form and substance reasonably satisfactory to Buyer, that the Seller has obtained or delivered, as applicable, all consents, approvals and/or notices set forth on Schedule 11.2(d)(xvi), and that each such consent, approval and/or notice has not been deliveredrevoked or cancelled; and
(vixvii) Seller shall deliver any other documents reasonably required from Buyer to consummate the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)Transactions.
Appears in 1 contract
Sources: Asset Purchase Agreement (Eastern Bankshares, Inc.)
Conditions to Buyer’s Obligations. 10.1 Buyer’s 's obligations hereunder, including the obligation to consummate purchase and pay for the transactions contemplated hereby in connection with the Closing is Property, are subject to the satisfaction or waiver of the following conditions, any of which may be waived by Buyer, in writing signed by Buyer:
(ia) the The representations and warranties set forth made by Seller in Section 22.a) shall have been this Agreement being true and correct in all material respects on the date hereof and as of the Closing (except to Date with the extent expressly made same force and effect as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of though such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition been made as of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(vb) each delivery contemplated Seller having performed in all material respects all covenants and obligations required by Section 11(a) this Agreement to be delivered performed by Seller on or prior to the Closing Date;
(c) Buyer shall have been deliveredreceiving, at Closing, an ALTA Seller's Extended Coverage Policy of Title Insurance insuring good, clear, record, marketable and fee simple title to the Property subject only to the Permitted Exceptions;
(d) Seller delivering possession of the Property free and clear of all tenants, other than the United States General Services Administration; and
(vie) Seller delivering an Estoppel Certificate and Subordination Agreement from Tenant to Buyer.
(f) Between the expiration of the Due Diligence Period and the Closing Date, there shall deliver have occurred no material adverse change in the Leased Premises environmental conditions of the Property or to the physical condition of the Property, reasonable wear and tear excepted; provided, however, that the parties acknowledge and agree that certain adverse changes to the physical condition of the Property will be governed by Section 12 below and with respect to those changes, Section 12 will determine whether or not they are grounds for termination of this Agreement.
(g) Conditioned upon Seller having entered into a lease with the United States Government General Services Administration for the subject property in vacant, broom clean condition with all FF&E, their entirety (including the addition described in Section 1.4 and 10.1(i) hereof providing for the gross rent and expense escalators earlier represented to Buyer by Seller's/Buyer's agent in the APOD which lease is not terminable by Tenant prior to November 1, 2012/5 year option ending 2017.
(h) Approval of the acquisition by the Board of Directors of Buyer, such approval and notice thereof to be forthcoming in written form prior to the end of the initial Due Diligence Period. Should the Board of Directors of Buyer not approve the acquisition prior to the end of the initial Due Diligence Period, Buyer shall have the right to terminate without limitation penalty or liability to Seller and the Computer Deposit together with interest accrued thereon, if any, shall be returned to Buyer.
(i) Delivery to Buyer of all documents and Security Equipmentrecords reasonably required and necessary to fulfill its disclosure obligations as a public company, including financial information on the Property for five (5) years (or as specifically long as owned by Seller if fewer than five (5) years) sufficient to enable Buyer's auditors, at Buyer's cost, to prepare a ALCPA standard audited financial statements, provided that Buyer shall promptly notify Seller, in writing, of any deficiency in such reasonably required materials and Buyer may delay the Closing pending production of such documents necessary to cure such deficiency; provided, however, that Seller shall not be required to create any materials that do not already exist.
(j) Completion of the construction required by the Power Contract or receipt of assurances satisfactory to Buyer regarding completion of and payment for the Power Contract.
10.2 If any of the conditions set forth in Schedule II)Section 10.1 above are not satisfied, Buyer, by written notice delivered to Seller on or before the Closing may elect to (a) waive such condition and proceed with the Closing, or (b) terminate this Agreement and have the Deposit returned to it.
10.3 The parties acknowledge that in addition to the matters set forth in Section 10.1, under certain circumstances, Defect of Title that are not Permitted Exceptions and which are timely objected to as provided in Section 4 above, may become conditions to Buyer's obligations hereunder, subject to and in accordance with Section 4.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Government Properties Trust Inc)
Conditions to Buyer’s Obligations. All of Buyer’s obligations hereunder (including, without limitation, Buyer’s obligation to pay the Purchase Price, to accept title to the Property and to consummate the transactions contemplated hereby in connection with Closing) are expressly conditioned on the satisfaction at or before the time of Closing is subject to satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in Section 22.a) shall have been true and correct on the date hereof and conditions precedent being fully satisfied as of the Closing (any one or more of which may be waived in writing in whole or in part by Buyer, at Buyer’s option):
(a) At Closing, Seller shall deliver possession of the Properties to Buyer free and clear of all tenancies and other occupancies except for the residents of the Facilities and vendor leases of space within a Facility for the purpose of providing services to residents, all of which Sellers represent are either disclosed in the documents provided in the data room prior to the extent expressly date of this Agreement, or referenced on Schedule 11(e)(ii) attached hereto;
(b) Sellers shall have timely delivered the items set forth in Section 10 above that Seller is obligated to deliver;
(c) Buyer shall have received from Title Insurer or any other title insurer approved by Buyer in its judgment and discretion, a current ALTA owner’s form of title insurance policy, or irrevocable and unconditional binder to issue the same, with extended coverage for each Real Property, dated, or updated to, the date of the Closing, insuring, or committing to insure, at its ordinary premium rates, Buyer’s good and marketable title in fee simple to each Property and otherwise in such form and with such endorsements as provided in the title commitment approved by Buyer pursuant to Section 6 hereof, subject only to the Permitted Exceptions;
(d) For each Property, Buyer shall have received a valid, permanent and unconditional certificate of occupancy (or the equivalent thereof) for the use and occupancy of such Property which shall not contain any contingencies or require any additional work to be completed;
(e) Between the date hereof and the Closing Date, there shall have been no event having a Material Adverse Effect with respect to the financial or physical condition of the Property or the business operated thereon;
(f) Provided that Buyer or its management agent has obtained an Operating License for each of the five licensed Facilities (as described in Schedule 1), no approval from any municipality in which each Property is located or any other governmental authority shall be required as a condition to the transfer of each Property to Buyer and to continue to operate the Property;
(g) No later than five (5) business days prior to the Closing Date, Sellers shall have obtained an estoppel certificate as to each restrictive covenant, declaration and/or reciprocal easement agreement of record, which estoppel certificate shall: (i) be executed by each party entitled to enforce such document; (ii) confirm that such document is in full force and effect, unmodified except as revealed by the Title Report/Commitment received by Buyer; (iii) confirm that there are no defaults by the Seller and/or the Property under such document; (iv) confirm that there are no outstanding sums owed by the Seller and/or the Property; (v) confirm that there are no outstanding construction or similar obligations of Seller and/or the Property; and (vi) be dated no earlier than thirty (30) days prior to Closing;
(h) The representations and warranties of Sellers contained in this Agreement shall have been true when made and shall be true in all material respects at and as of an earlier date, in which case as the date of such date Closing as if such representations and warranties were made at and as of such date)the Closing, except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respectsrespects with all covenants, agreements and conditions required by this Agreement to be performed or complied with by Seller prior to or at the Closing;
(iiii) Seller’s title Provided that Buyer or its management agent has obtained an Operating License for each of the five licensed Facilities (as described in Schedule 1), all Regulatory Approvals shall have been issued and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesobtained;
(ivj) With respect to Buyer’s obligation to purchase Tanglewood on the basis of assuming the Tanglewood Loan, the Lender shall have executed and delivered each and every of the Loan Assumption Documents to be executed by them, and all conditions to the extent effectiveness of the Loan Assumption Documents shall have been satisfied or waived in writing to the reasonable satisfaction of Buyer;
(k) No injunction, judgment, order, decree, ruling or charge shall be in effect under any action, suit or proceeding before any governmental authority, court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator that Seller becomes subject (a) prevents consummation of any of the transactions contemplated by this Agreement or (b) would cause any of the transactions contemplated by this Agreement to a Chapter 11 Proceeding be rescinded following consummation;
(l) Simultaneous with or prior to the Closing Datehereunder, (1each of the conditions precedent set forth on Schedule 13(l) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale OrderAdditional Conditions Precedent”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been deliveredsatisfied to the reasonable satisfaction of Buyer, or waived in writing by Buyer; and
(vim) Seller Sellers shall deliver have provided Buyer the Leased Premises evidence required by Section 1(f)(i) of this Agreement that the Tail Policy is in vacanteffect. If any of the foregoing conditions precedent (including, broom clean condition with all FF&Ewithout limitation, (including without limitation the Computer Additional Conditions Precedent) have not been satisfied as of Closing and Security Equipmentthe result is a material adverse effect upon Buyer, as specifically set forth reasonably determined by Buyer, then Buyer may either: (i) waive any unsatisfied conditions and proceed to Closing in Schedule II)accordance with the terms and provisions hereof with no deduction from or adjustment of the Purchase Price except for (a) adjustment equal to the amount required to satisfy and discharge of record at or before Closing of any and all liens, judgments or other encumbrances which can be removed by the payment of a fixed and ascertainable amount together with interest and penalties thereon, if any, and together with any additional title insurance costs or premiums imposed by Title Insurer by reason thereof, and (b) the cost of curing any failed condition precedent to the extent reducible to a liquidated sum; (ii) suspend the Closing Date on one or more occasions for a period of time as Buyer shall reasonably determine in order to allow for all of the foregoing conditions precedent to be satisfied, during which period Sellers and Buyer shall work cooperatively and with reasonable diligence to satisfy all of said conditions, or (iii) terminate this Agreement by delivering written notice thereof to Seller no later than Closing, which notice shall state with reasonable specificity the condition precedent that has not been satisfied, and upon which termination the ▇▇▇▇▇▇▇ Money shall be refunded to Buyer and Sellers shall reimburse Buyer for all title insurance company charges, survey charges, attorneys’ fees and other out-of-pocket costs incurred in connection with the transactions contemplated by this Agreement, such costs in the aggregate to not exceed $200,000, all obligations, liabilities and rights of the parties under this Agreement shall terminate; provided that Buyer’s termination of this Agreement pursuant to this subclause (iii) shall be effective if Seller fails to cure or cause the cure of said condition precedent within fifteen (15) business days following the date on which Seller receives Buyer’s notice of termination.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Griffin-American Healthcare REIT III, Inc.)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to --------------------------------- consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction or waiver of the following conditionsconditions on or before the Closing Date:
(ia) the representations and warranties set forth in Section 22.a) shall have been Article IV hereof and all other representations and warranties of Sellers set forth in this Agreement will be true and correct on the date hereof at and as of the Closing (except to the extent expressly Date as though then made as of an earlier date, in which case as of such date as if made at and as though the Closing Date were substituted for the date of such date), except where the failure of this Agreement throughout such representations and warranties (without taking into account any disclosures made by Sellers to Buyer pursuant to Section 4.25 hereof);
(b) Sellers will have performed and complied with all of the covenants and agreements required to be so true performed by them under this Agreement prior to the Closing;
(c) all governmental or third party filings, licenses, consents, authorizations, waivers and correct has approvals that are required to be made or obtained for the transfer to Buyer of the Purchased Assets and the operation of the Business by Buyer following the Closing will have been duly made and obtained (including the expiration or termination of all applicable waiting periods (and any extensions thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act) without conditions or requirements that are materially adverse to Buyer or the Business. In the event that the Sellers fail to obtain the landlord's written consent (the form of such consent to be approved by the Buyer, and its lender, at their sole and absolute discretion), together with the associated estoppel letters and subordination agreements, to the assignment to the Buyer of each Leased Real Property (the "Landlords' Consents") as of the Closing, and notwithstanding such ------------------- failure, the Buyer closes the transactions contemplated herein, the Sellers shall have thirty (30) days after the Closing to obtain all of the Landlords' Consents and the associated estoppel letters and subordination agreements; the Sellers hereby agree to use their best efforts to obtain such Landlords' Consents and associated estoppel letters and subordination agreements within such thirty (30) day period. In the event that any landlord refuses to consent to assign a lease (an "Unassigned Lease"), Buyer shall have no obligation or ---------------- liability with respect to such Unassigned Lease liability for such Unassigned Lease shall remain exclusively with Sellers, such Unassigned Lease shall be an Excluded Asset and liabilities associated with such Unassigned Lease shall be Excluded Liabilities. Notwithstanding the foregoing, Sellers shall deliver to the Buyer at the Closing Landlords' Consents, estoppel letters and subordination agreements, in the form attached as Exhibits hereto with respect to the facilities for which ▇▇. ▇▇▇▇ ▇. Moon or his Affiliates or family members are lessors and as set forth on Schedule 2.1(c) hereto; ---------------
(d) the purchase of the Purchased Assets by Buyer hereunder shall not had be prohibited by any applicable law or governmental regulation, shall not subject Buyer to any penalty, liability or other onerous condition under or pursuant to any applicable law or governmental regulation, and would not shall be permitted by laws and regulations of the jurisdictions to which Buyer is subject;
(e) no suit, action or other proceeding, or injunction or final judgment, order or decree relating thereto, will be pending or overtly threatened before any court or any governmental or regulatory body or authority in which it is sought to restrain or prohibit or to obtain material damages or other material relief (including rescission) in connection with the transactions contemplated hereby, or that is reasonably be expected likely to have a material adverse effect on the condition business, financial condition, operating results, assets, operations or business prospects of Acquired the Business or adversely affect the right of Buyer to own, operate or control the Purchased Assets as a whole or on the ability of Seller Business; no investigation that would be reasonably likely to consummate the transactions contemplated hereinresult in any such suit, action or proceeding shall be pending or overtly threatened and no such judgment, order or decree shall have been entered and not subsequently dismissed with prejudice or satisfied;
(iif) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer there shall have been delivered; and
no material adverse change in the assets, liabilities, condition (vi) Seller shall deliver financial or otherwise), operating results, status, business activities or prospects of the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation Business or the Computer and Security Equipment, as specifically set forth in Schedule II).Purchased Assets generally since the date of the Latest Balance Sheet;
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s obligation (a) The obligations of Buyer to consummate the transactions contemplated hereby in connection with the each Closing is are subject to the satisfaction or (or, if permitted by applicable Law, waiver by Buyer in writing) of the following conditionsconditions as of the applicable Closing Date:
(i) the (A) The representations and warranties set forth in Section 22.a) 3.04 and Section 3.26 shall have been be true and correct on in all respects at and as of the date hereof and such Closing Date as though made at and as of such Closing Date, (B) the other Seller Fundamental Representations shall be true and correct in all material respects at and as of the date hereof and such Closing Date as though made at and as of such Closing Date (except to the extent expressly made as of an earlier date, in which case only as of such date) and (C) all other representations and warranties contained in Article III of this Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein, other than with respect to Section 3.06(a)) at and as of the date hereof and such Closing Date as if though made at and as of such Closing Date (except to the extent expressly made as of an earlier date, in which case only as of such date), except except, in the case of this clause (C), where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein (other than with respect to Section 3.06(a))) has not had had, and would not reasonably be expected to have have, a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinMaterial Adverse Effect;
(ii) the Seller shall Group Members will have performed and complied with its in all material respects all of the covenants and agreements hereunder through required to be performed by them under this Agreement at or prior to the Closing in all material respectsapplicable Closing;
(iii) Seller’s title in and to there will not have been a Material Adverse Effect since the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesdate hereof;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court no Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated or entered an order, any Order or Law that is in a form effect and substance satisfactory to Buyer and Seller (that prevents the “Sale Order”), (A) approving performance of this Agreement and all or the consummation of any of the terms and conditions hereofTransactions, or makes unlawful the Transactions, and (B) approving and authorizing Seller to consummate no Legal Proceeding shall be pending or threatened that, if successful, would prevent the transactions contemplated herein, including performance of this Agreement or the assumption and assignment consummation of any of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying Transactions or amending make unlawful the Sale Order shall be in effect on the Closing DateTransactions;
(v) each delivery contemplated Stock Consideration (if applicable) shall be duly authorized for listing by Nasdaq, subject to official notice of issuance, to the extent required by the rules of Nasdaq; and
(b) Without limiting the conditions set forth in Section 11(a8.01(a), the obligations of Buyer to consummate the First Closing are subject to the satisfaction (or, if permitted by applicable Law, waiver by Buyer in writing) of the following conditions as of the First Closing Date:
(i) All deliveries pursuant to be delivered to Buyer Section 2.04(a) shall have been delivered.
(c) Without limiting the conditions set forth in Section 8.01(a), the obligations of Buyer to consummate the Second Closing are subject to the satisfaction (or, if permitted by applicable Law, waiver by Buyer in writing) of the following conditions as of the Second Closing Date:
(i) the First Commercial Milestone shall have been achieved on or before [**];
(ii) within one hundred eighty (180) days of the satisfaction of the condition in Section 8.01(c)(i), the Buyer shall have received financing to fund an amount of cash sufficient to satisfy the payment of the Second Closing Consideration on terms and conditions reasonably acceptable to Buyer;
(iii) the applicable waiting periods under the HSR Act (if applicable) will have expired or been terminated; and
(viiv) Seller all deliveries pursuant to Section 2.05(a) shall deliver have been delivered.
(d) Without limiting the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically conditions set forth in Schedule IISection 8.01(a), the obligations of Buyer to consummate the Third Closing are subject to the satisfaction (or, if permitted by applicable Law, waiver by Buyer in writing) of the following conditions as of the Third Closing Date:
(i) the Second Commercial Milestone shall have been achieved on or before [**];
(ii) within one hundred eighty (180) days of the satisfaction of the condition in Section 8.01(d)(i), the Buyer shall have received financing to fund an amount of cash sufficient to satisfy the payment of the Third Closing Consideration on terms and conditions reasonably acceptable to Buyer;
(iii) the applicable waiting periods under the HSR Act (if applicable) will have expired or been terminated; and
(iv) all deliveries pursuant to Section 2.06(a) shall have been delivered.
(e) Without limiting the conditions set forth in Section 8.01(a), the obligations of Buyer to consummate the effect the Fourth Closing are subject to the satisfaction (or, if permitted by applicable Law, waiver by Buyer in writing) of the following conditions as of the Fourth Closing Date:
(i) the Third Commercial Milestone shall have been achieved on or before [**];
(ii) Within one hundred eighty (180) days of the satisfaction of the condition in Section 8.01(e)(i), the Buyer shall have received financing to fund an amount of cash sufficient to satisfy the payment of the Fourth Closing Consideration on terms and conditions reasonably acceptable to Buyer;
(iii) the applicable waiting periods under the HSR Act (if applicable) will have expired or been terminated; and
(iv) all deliveries pursuant to Section 2.07(a) shall have been delivered.
Appears in 1 contract
Sources: Stock Purchase Agreement (Surgalign Holdings, Inc.)
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate the transactions contemplated hereby in connection with the Closing is 's obligations under this Agreement are subject to satisfaction the satisfaction, on or waiver of the following conditions:
(i) the representations and warranties set forth in Section 22.a) shall have been true and correct on the date hereof and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, of each of the following conditions, any of which may be waived in writing by Buyer:
(1a) the bankruptcy court shall Seller will have entered an order, complied with and performed in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving all material respects its obligations under this Agreement and the Related Agreements required to be complied with or performed prior to Closing;
(b) All representations and warranties of Seller in this Agreement and the Related Agreements will be true and correct in all material respects as of the terms date when given and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(vc) each delivery All consents, approvals and waivers required to consummate the transactions contemplated by Section 11(athis Agreement and the Related Agreements will have been obtained in writing by Seller and provided to Buyer without any penalty or condition which is adverse to Buyer. Buyer will have received evidence of the due authorization and execution of this Agreement by Seller in form and substance satisfactory to Buyer;
(d) There will not have been any material adverse change in the business, prospects or future business relating to be delivered the Purchased Assets, or any event which may, in the future, cause such a change or any pending or threatened material litigation or other proceeding relating to the Purchased Assets;
(e) Buyer shall have verified the average contract expiration date for all Merchant Contracts to be purchased by Buyer of at least forty-three (43) months with at least sixty (60) months successive renewal terms;
(f) Buyer's determination, in its sole judgment, that the cost of Twenty-Four Thousand and No/100 U.S. Dollars ($24,000.00) is a reasonable estimate for the 3DES and EPP network compliant upgrades to be performed that are the responsibility of Seller;
(g) Seller shall have completed at least forty percent (40%) of the necessary 3DES and EPP network compliant upgrades related to the Purchase Assets by the Closing Date;
(h) Buyer shall have verified transaction volumes, revenue amount shared, and all associated costs (cash, armored, maintenance, processing, etc.) for all ATMs as expressed by Seller;
(i) Seller's contract with CDR shall have been deliveredterminated on or prior to the Closing Date and Buyer's ability (through Seller, if necessary) to have the ATM locations related to the Purchased Assets processed by CDR on a month-to-month basis for a period of six (6) months with a processing cost no greater than current cost from CDR of eight cents ($0.075) per transaction to give Buyer time to transition the ATMs to another processor;
(j) Seller's contract with CDS shall have been terminated on or prior to the Closing Date and Buyer's ability (through Seller, if necessary) to have the ATM locations related to the Purchased Assets processed by CDS on a month-to-month basis for a period of six (6) months with a processing cost no greater than current cost from CDS of eight cents ($0.08) per transaction to give Buyer time to transition the ATMs to another processor;
(k) Seller's contract with EPS shall have been terminated on or prior to the Closing Date and Buyer's ability (through Seller, if necessary) to have the ATM locations related to the Purchased Assets processed by EPS on a month-to-month basis for a period of six (6) months with a processing cost no greater than current cost from EPS of twelve cents ($0.12) per transaction to give Buyer time to transition the ATMs to another processor;
(l) Employees and owners of Seller shall have executed five (5) years non-compete agreements relating to the Purchased Assets, in form and substance satisfactory to Buyer;
(m) Verification of all Purchased Assets are free and clear of all and any liens, commitments, obligations from all Parties and/or obligations to taxing or governmental authorities, in form and substance satisfactory to Buyer;
(n) Seller shall have reviewed and confirmed the assign-ability of all vendor contracts and network agreements and commitments including, but not limited to processors, distributors, maintenance and assets related to ancillary products sold and services provided by Seller, of which any and all penalties, early termination fees and any other expenses incurred as a result of the Purchased Assets shall be paid by Seller;
(o) Buyer shall have reviewed all Transferred Contracts and confirmed their assign-ability;
(p) Buyer shall have received such other documents and instruments as Buyer may reasonably request to effectuate the transactions contemplated herein and to vest in Buyer title to, and rights in the Purchased Assets; and
(viq) Seller Buyer shall deliver have received all of the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically items set forth in Schedule II)Sections 3.3(a) and (c) hereof.
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction or waiver of the following conditionsconditions at or prior to the Closing:
(a) In each case in this Section 3.1(a) without taking into account any deliveries of notices pursuant to Section 4.5 (but subject to the provisions of the final sentence of Section 4.5), (i) each of the representations and warranties set forth in Section 22.a) ARTICLE V hereof that are subject to materiality or Material Adverse Effect or similar qualifications shall have been be true and correct on the date hereof in all respects at and as of the Closing (except to Closing, with the extent expressly made as of an earlier date, in which case as of such date same effect as if made at and as of the Closing (other that such representations that are made as of a specified date, which shall be true and correct as of such date), except and (ii) each of the representations and warranties contained in ARTICLE V hereof that are not subject to materiality or Material Adverse Effect or similar qualifications shall be true and correct in all material respects at and as of the Closing, with the same effect as if made at and as of the Closing (other that such representations that are made as of a specified date, which shall be true and correct in all material respects as of such date), except, in the case of clauses (i) and (ii), where the failure aggregate failures of such representations and warranties to be so true and correct has in all material respects (or, with respect to representations and warranties subject to materiality or Material Adverse Effect or similar qualifications, to be so true and correct in all respects) have not had resulted, and would not reasonably be expected to result, individually or in the aggregate, in Losses in excess of $15,000,000;
(b) Each of Seller and the Company shall have a performed in all material adverse effect respects all of the covenants and agreements required to be performed by it hereunder prior to the Closing;
(c) Seller and the Company shall have received or obtained all third-party consents and approvals that are identified on the condition attached Schedule 3.1(c) (collectively, the “Third-Party Approvals”), in each case on terms and conditions reasonably satisfactory to Buyer;
(d) Buyer, Seller and the Company shall have received or obtained all Permits that are identified on Schedule 3.1(d), in each case on terms and conditions reasonably satisfactory to Buyer, and all applicable waiting periods under the HSR Act shall have expired or been terminated (collectively, the “Governmental Approvals”);
(i) No suit, action, investigation, audit or other proceeding shall be pending by or before any Governmental Entity of Acquired Assets as a whole competent jurisdiction wherein an unfavorable injunction, judgment, order, decree, decision or on ruling would reasonably be expected to (A) prevent the ability performance of Seller to consummate this Agreement or the consummation of any of the transactions contemplated hereinhereby or declare unlawful any of the transactions contemplated hereby, or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, and (ii) no order of any Governmental Entity of competent jurisdiction shall be in effect restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that prior to asserting the failure of condition (ii) Buyer shall not be entitled to rely on the failure of this condition to be satisfied if such order was instituted by Buyer or an Affiliate of Buyer;
(iif) Since the date of this Agreement, there shall have occurred no Change that has had, or would reasonably be expected to have, a Material Adverse Effect;
(g) Seller and certain of its affiliates identified on the signature pages thereto shall have executed a Transition Services Agreement substantially in form of Exhibit A attached hereto;
(h) Parent shall have executed a Guaranty in form of Exhibit B attached hereto;
(i) [Intentionally Reserved];
(j) Seller shall have performed delivered to Buyer a duly executed and complied with its covenants and agreements hereunder through acknowledged certificate in substantially the Closing in all material respectsform attached hereto as Exhibit C;
(iiik) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances[Intentionally Reserved];
(ivl) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court The Company and Breg LLC shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and hold all of the terms issued and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment outstanding equity securities of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been deliveredBreg Mexico; and
(vim) Seller and the Company shall deliver have delivered to Buyer (i) a certificate signed by an authorized officer of Seller and the Leased Premises Company, dated the date of the Closing, stating that the conditions specified in vacantSections 3.1(a) and 3.1(b) have been satisfied as of the Closing; (ii) copies of all Third-Party Approvals and Governmental Approvals; (iii) certified copies of the resolutions of Seller’s and the Company’s board of directors authorizing the execution, broom clean condition with all FF&Edelivery and performance of this Agreement and the other agreements contemplated hereby and the consummation of the transactions contemplated hereby and thereby; (iv) the resignations, (including without limitation the Computer and Security Equipmenteffective, as specifically of the Closing, of each director of the Company and its Subsidiaries; and (v) such other documents or instruments as are required to be delivered by Seller or the Company at the Closing pursuant to the terms hereof. For the avoidance of doubt, any condition specified in this Section 3.1 may be waived solely for purposes of this Article III by Buyer if such waiver is set forth in Schedule II)a writing duly executed by Buyer and delivered to Seller.
Appears in 1 contract
Sources: Stock Purchase Agreement (Orthofix International N V)
Conditions to Buyer’s Obligations. Buyer’s obligation 's obligations to consummate effect the transactions purchase and assumption transaction contemplated hereby in connection with by this Agreement will be subject to the satisfaction (or waiver by Buyer) prior to or on the Closing is subject to satisfaction or waiver Date of the following conditions:
(ia) the The representations and warranties set forth made by Seller in Section 22.a) shall have been this Agreement are true and correct in all material respects on the date hereof and as of the Closing (except to Date with the extent expressly made same effect as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of though such representations and warranties to be so true had been made or given on and correct has not had and would not reasonably be expected to have a material adverse effect on as of the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinClosing Date;
(iib) Seller shall have has performed and complied with its covenants and agreements hereunder through the Closing in all material respectsrespects with all of its obligations and agreements required to be performed prior to the Closing Date under this Agreement;
(iiic) Seller’s title in and Buyer has not terminated this Agreement pursuant to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesSection 5.08;
(ivd) No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the purchase and assumption transaction contemplated by this Agreement is in effect, and no proceeding by any bank regulatory authority or other governmental agency seeking any of the foregoing is pending. There has not been any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the extent that purchase and assumption transaction contemplated by this Agreement which makes the consummation of such transaction illegal;
(e) All necessary regulatory approvals, consents, authorizations and other approvals required by law for consummation of the purchase and assumption transaction contemplated by this Agreement have been obtained in a manner and form reasonably satisfactory to Buyer, and all waiting periods required by law have expired;
(f) Buyer has received all documents required to be received from Seller becomes subject to a Chapter 11 Proceeding on or prior to the Closing Date, including without limitation releases of any liens or encumbrances on the Assets (1) the bankruptcy court shall have entered an orderother than Permitted Exceptions and those liens or encumbrances accepted or waived by Buyer), all in a form and substance reasonably satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(vg) each delivery contemplated by Section 11(a) to be delivered to Buyer Sellers's external data processor shall have confirmed prior to the Closing Date that all steps necessary for the conversion of data pertaining to the business of the Branch Offices for migration to the data banks of Buyer's internal data systems, has been delivered; and
(vi) Seller shall deliver completed and that such conversion can take place not later than concurrently with the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)Closing.
Appears in 1 contract
Sources: Branch Purchase and Assumption Agreement (Ames National Corp)
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate make the transactions deliveries required of Buyer at the Closing, and to otherwise close the transaction contemplated hereby in connection with the Closing is herein, shall be subject to the satisfaction or waiver by Buyer of each of the following conditions:
(i) the representations and warranties set forth in Section 22.a) 4.2.1 Sellers shall have been true substantially performed or tendered performance of each and correct every covenant on Sellers’ part to be performed which, by its terms, is capable of performance before the date hereof and as of the Closing (except Closing.
4.2.2 Other than with respect to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties of the Sellers that cease to be so effective in accordance with Section 10.26, all representations and warranties of Sellers contained herein shall continue to be true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through at the Closing in all material respects;.
(iii) Seller’s title 4.2.3 Sellers shall have executed and be prepared to deliver to Buyer the Assignment of Contracts; the ▇▇▇▇ of Sale; and the Assignment of Intangible Property.
4.2.4 Sellers shall have delivered, or shall be prepared to deliver to Buyer at the Closing, all other documents required of Sellers to be delivered at the Closing.
4.2.5 No action, suit or other proceedings shall be pending before any court, tribunal or governmental authority seeking or threatening to restrain or prohibit the consummation of the transactions contemplated by this Agreement, or seeking to obtain substantial damages in respect thereof, or involving a claim that consummation of the transactions contemplated by this Agreement would result in the violation of any law, decree or regulation of any governmental authority having appropriate jurisdiction.
4.2.6 The Bankruptcy Court shall have entered the Procedures Order and the Approval Order in accordance with Section 8.1.1 below, which orders shall be reasonably satisfactory in form and substance to the Acquired Assets Buyer and neither Order shall be good, valid and marketable and free have been stayed as of all liens and encumbrances;the Closing Date.
(iv) 4.2.7 On or before 5 business days prior to the extent that Seller becomes subject date when bids are due (as contemplated in the Procedures Motion), the Buyer and Sellers shall have mutually agreed upon the form and content of the Transition Agreement.
4.2.8 On or before the Supply Agreement Date, the Buyer and Sellers shall have mutually agreed upon the form and content of the Supply Agreement.
4.2.9 On or before the Procedures Entry Date, Buyer shall have approved, in Buyer’s sole and absolute discretion, its due diligence investigations and inspections of the Property; provided, however, in no event shall Buyer have the right to a Chapter 11 Proceeding prior disapprove this condition or otherwise refuse to proceed with the transaction contemplated herein solely by reason of Buyer’s inability to obtain financing for its acquisition of the Property; provided, however, notwithstanding anything to the contrary herein, this condition shall conclusively be deemed waived unless Buyer delivers written notice to Sellers disapproving this condition on or before the Procedures Entry Date.
4.2.10 From the Execution Date to the Closing Date, (1) the bankruptcy court Sellers shall have entered an orderoperated the Business in the ordinary course consistent with the manner in which the Business has been operated since the filing of the Bankruptcy Case taking into account in all events the limitations imposed by bankruptcy law on the conduct and activities of those of the Debtor Sellers.
4.2.11 On or before 5 days prior to the date when bids are due (as contemplated in the Procedures Motion), in a Buyer and Sellers shall have mutually agreed upon the form and substance satisfactory content of Exhibits “A-1,” “A-2,”“B,” “C,”“D” and “E”and the various Schedules to be attached to this Agreement.
4.2.12 There shall have not occurred since the Execution Date any event, change, condition or matter that individually or in the aggregate results in or could reasonably be expected to result in, and the Sellers shall have no actual knowledge of, a planned or actual decrease by either Wal-Mart or Target that would result in more than 10% of the combined number of SKUs purchased or ordered by such customers as set forth on Exhibit “4.2.12” attached hereto and incorporated by reference.
4.2.13 The Closing Statement is provided to Buyer in accordance with Section 2.5.1 above and Seller (evidences that the “Sale Order”), (A) approving this Agreement and all sum of the terms Eligible Accounts Receivable and conditions hereof, Eligible Inventory is not less than $15,000,001.
4.2.14 The Sellers shall have incurred not less than $1.4 million to satisfy air freight charges for the shipment of product used in the Business and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered shipped to Wal-Mart and Target and Buyer shall have been delivered; andreceived evidence reasonably satisfactory to it of such incurrence.
(vi) Seller 4.2.15 Since the Execution Date, the Sellers shall deliver have not disposed of any excess and obsolete inventory, or a material amount of any other inventory, for below the Leased Premises Sellers’ cost therefor.
4.2.16 On or before the Procedures Entry Date, Sellers and Buyer shall have agreed in vacant, broom clean condition with all FF&E, (including without limitation writing upon the Computer form and Security Equipment, as specifically set forth in Schedule II)content of the Inventory Plan.
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate perform the transactions Transactions contemplated hereby in connection with to be performed on or before the Closing Date is subject to satisfaction satisfaction, or written waiver by Buyer, of each of the following conditions:
(a) (i) all of the representations and warranties set forth regarding the Companies in Section 22.a) Article IV shall have been be true and correct on in all respects both as of the date hereof and as of if made on the Closing Date (except to the extent expressly made those representations and warranties that address matters only as of an earlier a specified date, in the accuracy of which case shall be determined as of such that specified date as if made at and as of such datein all respects), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to not, in the aggregate, have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
Material Adverse Effect, (ii) Seller the Target shall have performed and complied in all material respects with all of its covenants and agreements hereunder through in this Agreement to be performed prior to or at the Closing and (iii) the Target shall have delivered to Buyer at the Closing a certificate, in form and substance reasonably satisfactory to Buyer, confirming satisfaction of the conditions in clauses (i) and (ii) above;
(b) (i) all of the representations and warranties of the Sellers in Article III shall be true and correct in all respects both as of the date hereof and as if made on the Closing Date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects), except where the failure of such representations and warranties to be so true and correct would not, in the aggregate, have a material adverse effect, (ii) Holdings, both in its capacity as a Seller and as Sellers’ Representative, shall have performed and complied in all material respectsrespects with all of its covenants and agreements in this Agreement to be performed by it prior to or at the Closing and (iii) Holdings shall have delivered to Buyer at the Closing a certificate, in form and substance reasonably satisfactory to Buyer, confirming satisfaction of the conditions in clauses (i) (with respect to Holdings only and not all other Sellers) and (ii) above;
(c) no injunction or restraining order shall have been issued by any Governmental Body, and be in effect, which restrains or prohibits any of the Transactions;
(d) from the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect;
(e) Competition Act Approval shall have been received; and
(f) each of the following documents must have been delivered to Buyer and dated as of the Closing Date (unless otherwise indicated):
(i) a certificate of the secretary or assistant secretary of the Target, in form and substance reasonably satisfactory to Buyer, certifying that (A) attached thereto are true, correct and complete copies of (1) the Target’s Organizational Documents, (2) resolutions duly adopted by the board of managers of the Target authorizing the performance of the Transactions and the execution and delivery of the Transaction Documents to which it is a party and (3) a certificate of good standing for the Target as of a recent date from the Delaware Secretary of State and (B) the resolutions referenced in subsection (A)(2) above are in full force and effect.
(ii) certification from Target certifying as to its non-foreign status as set forth in Treasury Regulation § 1445-2(b), signed under penalties of perjury, in form and substance reasonably satisfactory to Buyer.
(iii) Seller’s title an opinion from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ LLP in form and substance reasonably satisfactory to Buyer and subject to customary limitations and exceptions opining as to the Acquired Assets shall be goodTarget’s valid existence, valid authority, and marketable and free the enforceability of all liens and encumbrancesthis Agreement against the Target;
(iv) payoff letters with respect to the extent that Seller becomes subject to Repayment Indebtedness, dated as of the Closing Date or within a Chapter 11 Proceeding reasonable time prior to the Closing Date, (1) and all documentation necessary or desirable to obtain releases of all Encumbrances related to the bankruptcy court shall have entered an orderRepayment Indebtedness, including appropriate UCC termination statements and Personal Security Tax discharges, in a each case in form and substance reasonably satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) written resignations of the officers and directors or managers of the Companies listed on Schedule 7.1(f)(v) hereto;
(vi) a payoff letter for the amounts under the BlackArch Engagement Letter in form and substance reasonably satisfactory to Buyer;
(vii) evidence of termination of each delivery contemplated of the related party agreements identified on Schedule 6.9 hereto in form and substance reasonably satisfactory to Buyer;
(viii) the Indemnification Escrow Agreement, executed by Section 11(athe Sellers’ Representative and the Escrow Agent;
(ix) to be delivered the Working Capital Escrow Agreement, executed by the Sellers’ Representative and the Escrow Agent;
(x) the Transition Services Agreement, executed by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇;
(xi) an itemized list of the Estimated Transaction Costs and Estimated Indebtedness;
(xii) evidence reasonably satisfactory to Buyer that (A) a stockholder vote was solicited in conformance with Code § 280G, and the requisite stockholder approval was obtained with respect to any payments and/or benefits that were subject to the stockholder vote (the “280G Approval”) or (B) the 280G Approval was not obtained and as a consequence, pursuant to the 280G Waivers, the payments and/or benefits that were subject to the stockholder vote shall have been deliverednot be made or provided;
(xiii) Noncompete Agreements, executed by each of FdG Associates LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇; and
(vixiv) Seller shall deliver such other documents or instruments as Buyer may reasonably request and are reasonably necessary to consummate the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)Transactions.
Appears in 1 contract
Sources: Merger Agreement (American Tire Distributors Holdings, Inc.)
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate the transactions contemplated hereby in connection with purchase of the Closing Acquired Assets and the assumption of the Assumed Liabilities is subject to satisfaction or waiver by Buyer of the following conditions:
(i) the The representations and warranties of Sellers set forth in Section 22.a3.1, Section 3.2, Section 3.4, Section 3.9, (the “Seller Fundamental Representations”) shall have been be true and correct on in all respects as of the date hereof and as of the Closing (except to the extent expressly made Date, as of an earlier date, in which case as of such date as if though made at and as of the Closing Date, except to the extent any such dateSeller Fundamental Representations expressly relate to an earlier time (in which case such Seller Fundamental Representations shall be true and correct in all respects at and as of such earlier time), and (ii) all representations and warranties of the Sellers in this Agreement (other than the Seller Fundamental Representations) shall be true and correct, without regard to any qualifications as to “material”, “materiality”, or “Material Adverse Effect” (or any correlative terms), as of the date hereof and as of the Closing Date, as though made at and as of the Closing Date, except to the extent such representations and warranties expressly relate to an earlier time (in which case such representations and warranties shall be true and correct at and as of such earlier time), except where the failure of such representations and warranties to be so true and correct has not had had, and would not reasonably be expected to have have, individually or in the aggregate, a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinMaterial Adverse Effect;
(iib) Seller Sellers shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respectsrespects with the obligations and covenants required by this Agreement to be performed or complied with by Sellers at or prior to the Closing;
(iiic) Seller’s title Buyer shall have received a certificate, dated as of the Closing Date and executed by an executive officer authorized to sign on behalf of the Sellers, stating that the conditions specified in Section 7.1(a), and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesSection 7.1(a) have been satisfied;
(ivd) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court The Bankruptcy Court shall have entered an order, in a form the Sale Order and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(ve) each No material Decree shall be in effect that prohibits consummation of the transactions contemplated by this Agreement;
(f) Each delivery contemplated by Section 11(a2.5(b) to be delivered to Buyer shall have been delivered; and
(vig) Seller The Bankruptcy Court shall deliver have entered the Leased Premises Bidding Procedures Order, which Bidding Procedures Order shall include approval of the Break-Up Fee, and no order staying, reversing, modifying or amending the Bidding Procedures Order shall be in vacant, broom clean condition with all FF&E, (including without limitation effect on the Computer and Security Equipment, as specifically set forth in Schedule II)Closing Date.
Appears in 1 contract
Conditions to Buyer’s Obligations. The Close of Escrow and Buyer’s obligation to consummate the transactions transaction contemplated hereby in connection with the Closing is by this Agreement are subject to the satisfaction or waiver of the following conditions for Buyer’s benefit (or Buyer’s waiver thereof, it being agreed that Buyer may waive any or all of such conditions) on or prior to the Closing Date or on the dates designated below for the satisfaction of such conditions:
(ia) the All of Seller’s representations and warranties set forth in Section 22.a) contained herein shall have been be true and correct on in all material respects as of the date hereof of this Agreement and as of the Closing (except Date, subject to the extent expressly any qualifications hereafter made to any of Seller’s representations as of an earlier date, provided for in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinSection 11.1 hereof;
(iib) As of the Closing Date, Seller shall have performed its respective obligations hereunder and complied with its covenants and agreements hereunder through the Closing in all material respectsdeliveries to be made at Close of Escrow by Seller shall have been tendered;
(iiic) There shall exist no actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against Seller that would materially and adversely affect Seller’s title in and ability to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesperform its obligations under this Agreement;
(ivd) There shall exist no pending or threatened action, suit or proceeding with respect to Seller before or by any court or administrative agency which seeks to restrain or prohibit, or to obtain damages or a discovery order with respect to, this Agreement or the extent that consummation of the transaction contemplated hereby; and
(e) Subject to Section 4.4 above, Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying delivered or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) caused to be delivered to Buyer, the Required Estoppels. If, notwithstanding the nonsatisfaction of any such condition, the Close of Escrow occurs, there shall be no liability on the part of Seller for breaches of representations and warranties of which Buyer shall have been delivered; and
(vi) Seller shall deliver had knowledge as of the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)Close of Escrow.
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Real Estate Investment Trust II, Inc.)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction or waiver of the following conditionsconditions as of the Closing Date:
(ia) Each of the representations and warranties set forth of Sellers contained in Section 22.aArticle III and Article IV, (i) that is qualified as to or by materiality or Material Adverse Effect shall have been be true and correct on the date hereof and as of the Closing Date as if made anew as of such date (except to the extent any such representation and warranty expressly made as of relates to an earlier date, date (in which case as of such date earlier date)), except to the extent of changes or developments contemplated by the terms of this Agreement or caused by the transactions contemplated hereby and (ii) that is not qualified as to or by materiality or Material Adverse Effect shall be true and correct as of the Closing Date as if made at and anew as of such date (except to the extent any such representation and warranty expressly relates to an earlier date (in which case as of such earlier date)), except where to the extent of changes or developments contemplated by the terms of this Agreement or caused by the transactions contemplated hereby and except for any failure of any such representations representation and warranties warranty referred to in this clause (ii) to be so true and correct that has not had a Material Adverse Effect; provided, that the Seller Fundamental Representations shall be true and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing correct in all material respects;
(iiib) Seller’s title Sellers shall have performed in all material respects all of the covenants and agreements required to be performed by them under this Agreement at or prior to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesClosing;
(ivc) Each Seller shall have delivered to Buyer a certificate of Seller executed by a duly authorized officer of the extent that Seller becomes subject to a Chapter 11 Proceeding prior to applicable Seller, dated the Closing Date, stating that the preconditions specified in Section 2.02(a) and Section 2.02(b) have been satisfied;
(1d) Each Seller shall have delivered to Buyer a copy of a Stock Power, duly executed by the bankruptcy court applicable Seller;
(e) All conditions to the closing of the Contribution Agreement shall have been satisfied or waived by the party entitled thereto and each of the parties thereto (other than WPTI LP) shall have confirmed their willingness and intention to close the transactions contemplated by the Contribution Agreement simultaneously with the Closing (and Sellers hereby, on their own behalf and on behalf of the Acquired Company, consent to the transfer of the limited liability company interests in the External Manager contemplated by the Contribution Agreement and waive any rights of first refusal or conditions to such transfer set forth in the governing documents of the External Manager);
(f) AIMCO, the CPPIB and WPTI LP or their designated Affiliates shall have entered an orderinto, or shall contemporaneously with the Closing enter into, the Joint Venture Agreement;
(g) Sellers shall have delivered to Buyer the resignations of all directors of the Acquired Company and of the External Manager appointed by the Acquired Company; and
(h) Buyer shall have received from the Acquired Company (i) a properly executed statement, in a form and substance reasonably satisfactory to Buyer Buyer, conforming with the requirements of Treasury regulations sections 1.897-2(h) and Seller (the “Sale Order”1.1445 2(c)(3), (Acertifying that the Purchased Shares do not constitute “United States real property interests” under Section 897(c) approving this Agreement and all of the terms and conditions hereofCode, and (Bii) approving and authorizing Seller a form of notice to consummate the transactions contemplated herein, including IRS conforming with the assumption and assignment requirements of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule IITreasury regulations section 1.897-2(h)(2).
Appears in 1 contract
Sources: Stock Purchase Agreement
Conditions to Buyer’s Obligations. The Close of Escrow and Buyer’s obligation to consummate the transactions transaction contemplated hereby in connection with the Closing is by this Agreement are subject to the satisfaction or waiver of the following conditions for Buyer’s benefit (or Buyer’s waiver thereof, it being agreed that Buyer may waive any or all of such conditions) on or prior to the Closing Date or on the dates designated below for the satisfaction of such conditions:
(iA) the All of Seller’s representations and warranties set forth in Section 22.a) contained herein shall have been be true and correct on in all material respects as of the date hereof of this Agreement and as of the Closing (except Date, subject to the extent expressly any qualifications hereafter made to any of Seller’s representations as of an earlier date, provided for in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinSection 11.1 hereof;
(iiB) As of the Closing Date, Seller shall have performed its respective obligations hereunder and complied with its covenants and agreements hereunder through the Closing all deliveries (including, but not limited to, those listed in all material respectsSection 6.1) to be made at Close of Escrow by Seller shall have been tendered;
(iiiC) There shall exist no actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against Seller that would materially and adversely affect Seller’s title in and ability to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesperform its respective obligations under this Agreement;
(ivD) There shall exist no pending or threatened action, suit or proceeding with respect to Seller before or by any court or administrative agency which seeks to restrain or prohibit, or to obtain damages or a discovery order with respect to, this Agreement or the extent that Seller becomes subject consummation of the transaction contemplated hereby; and
(E) Subject to a Chapter 11 Proceeding Section 4.4 above, no less than three (3) business days prior to the Closing Date, (1) the bankruptcy court Seller shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying delivered or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) caused to be delivered to Buyer Buyer, Required Tenant Estoppel Certificates complying with the provisions of Section 4.4 above, which Required Tenant Estoppel Certificates shall have been delivered; and
(vi) Seller shall deliver be consistent with the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically information set forth in Schedule II)the Rent Rolls. If, notwithstanding the nonsatisfaction of any such condition, the Close of Escrow occurs, there shall be no liability on the part of Seller for breaches of representations and warranties of which Buyer had knowledge as of the Close of Escrow.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Armada Hoffler Properties, Inc.)
Conditions to Buyer’s Obligations. Following Buyer’s exercise of the Option in accordance with the terms and conditions of Section 1.2 hereof, the Close of Escrow and Buyer’s obligation to consummate the transactions transaction contemplated hereby in connection with the Closing is by this Agreement are subject to the satisfaction or waiver of the following conditions for Buyer’s benefit (or Buyer’s waiver thereof, it being agreed that Buyer may waive any or all of such conditions) on or prior to the Closing Date or on the dates designated below for the satisfaction of such conditions:
(ia) the All of Seller’s representations and warranties set forth in Section 22.a) contained herein shall have been be true and correct on in all material respects as of the date hereof of this Agreement and as of the Closing (except Date, subject to the extent expressly any qualifications hereafter made to any of Seller’s representations as of an earlier date, provided for in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinSection 11.1 hereof;
(iib) As of the Closing Date, Seller shall have performed its respective obligations hereunder and complied with its covenants and agreements hereunder through the Closing in all material respectsdeliveries to be made at Close of Escrow by Seller shall have been tendered;
(iiic) There shall exist no actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against Seller that would materially and adversely affect Seller’s title in and ability to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesperform its respective obligations under this Agreement;
(ivd) There shall exist no pending or threatened action, suit or proceeding with respect to Seller before or by any court or administrative agency which seeks to restrain or prohibit, or to obtain damages or a discovery order with respect to, this Agreement or the extent that Seller becomes subject consummation of the transaction contemplated hereby; and
(e) Subject to a Chapter 11 Proceeding Section 4.4 above, no less than three (3) business days prior to the Closing Date, (1) the bankruptcy court Seller shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying delivered or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) caused to be delivered to Buyer Buyer, Tenant Estoppel Certificates complying with the provisions of Section 4.4 above, which Tenant Estoppel Certificates shall have been delivered; and
(vi) Seller shall deliver be consistent with the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically information set forth in Schedule II)the Rent Rolls. If, notwithstanding the nonsatisfaction of any such condition, the Close of Escrow occurs, there shall be no liability on the part of Seller for breaches of representations and warranties of which Buyer had knowledge as of the Close of Escrow.
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate the transactions contemplated hereby in connection with the Closing is The obligations of Buyer under this Agreement are subject to the satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in Section 22.a) shall have been true and correct conditions on the date hereof and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, all or any of which may be waived in writing by Buyer:
(1a) All representations and warranties made by Seller and the bankruptcy court shall have entered an order, Shareholders in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and in any written statements delivered to Buyer under this Agreement shall be true and correct in all material respects as of the terms Effective Date and conditions hereofas of the Closing Date as though made on such dates. 4416103v.8
(b) Seller and the Shareholders shall have performed, satisfied and complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by them on or prior to the Closing Date.
(c) As of the Closing Date, there shall not have occurred any Seller Material Adverse Effect since the date of the Interim Financial Statements.
(d) Seller and the Shareholders shall have delivered to Buyer all documents required to be delivered by them, and all such documents shall have been properly executed by each of them, if applicable. Such documents shall include, without limitation:
(Bi) approving and authorizing A corporate good standing certificate for Seller from the State of Nebraska, dated no more than ten (10) days prior to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(vii) each delivery contemplated Evidence of maintenance of the insurance coverage required by Section 11(a) to be delivered to Buyer shall have been delivered6.7 of this Agreement; and
(viiii) Such other documents and instruments, each in a form reasonably satisfactory to Buyer and its counsel, as may be reasonably requested by Buyer in order to carry out the transaction contemplated by this Agreement and to vest good and marketable title in the Acquired Assets in Buyer, free and clear of all Liens.
(e) Seller shall deliver have executed and delivered to Buyer the Leased Premises B▇▇▇ of Sale in vacantthe form attached hereto as Exhibit A, broom clean condition dated and effective as of the Closing Date.
(f) Each Shareholder shall have executed and delivered to Buyer the Stock Rights and Restriction Agreement in the form attached hereto as Exhibit C, dated and effective as of the Closing Date.
(g) Seller and Shareholders shall have executed and delivered to Buyer the Security Agreement in the form attached hereto as Exhibit D, dated and effective as of the Closing Date.
(h) Seller shall have executed and delivered to Buyer a Proprietary Information Non-Competition and Non-Solicitation Agreement in the form attached hereto as Exhibit E-1 (the “Seller Non-Competition Agreement”), dated and effective as of the Closing Date.
(i) R▇▇▇ ▇▇▇▇ shall have executed and delivered to Buyer a Proprietary Information Non-Competition and Non-Solicitation Agreement in the form attached hereto as Exhibit E-2 (the “Z▇▇▇ Non-Competition Agreement”), dated and effective as of the Closing Date.
(j) C▇▇▇ ▇▇▇▇▇▇ shall have executed and delivered to Buyer a Proprietary Information Non-Competition and Non-Solicitation Agreement in the form attached hereto as Exhibit E-3 (the “W▇▇▇▇▇ Non-Competition Agreement” and collectively with the Seller Non-Competition Agreement and the Z▇▇▇ Non-Competition Agreement, the “Non-Competition Agreements”), dated and effective as of the Closing Date.
(k) [Reserved.] 4416103v.8
(l) Seller shall have delivered to Buyer an Assignment and Assumption of Lease and Landlord Consent, in the form attached hereto as Exhibit F and dated and effective as of the Closing Date, duly executed by Seller (the “Lease Assignment”).
(m) Complete Nutrition, Inc. shall have delivered to Buyer the Services Agreement in the form attached hereto as Exhibit G, dated and effective as of the Closing Date.
(n) Buyer shall have received payment and release letters, together with UCC-3 termination statements, from all FF&Eparties having financing statements filed against the Acquired Assets in form and substance satisfactory to Buyer.
(o) Buyer shall have received all approvals, consents and clearances from governmental authorities and others in connection with the transactions contemplated by this Agreement deemed necessary by Buyer, including transfer to or receipt by Buyer of all Licenses for Buyer to own and operate Seller’s Business after the Closing Date.
(including without limitation p) Buyer shall have received a certificate of an authorized officer of Seller certifying as of the Computer Effective Date and Security Equipment, as specifically of the Closing Date: (i) the accuracy of Seller’s and Shareholders’ representations and warranties as set forth in Schedule IIArticle IV hereof, and (ii) compliance with Seller’s and Shareholders’ covenants as set forth in this Agreement.
(q) Buyer shall have received a certificate of the Secretary of Seller certifying as of the Closing Date (A) true and complete copies of the Articles of Incorporation (and any amendments thereto) of Seller as in effect as of the Closing Date and certified as of a recent date by the Secretary of State of Nebraska, (B) a true and complete copy of the bylaws of Seller as in effect as of the Closing Date, (C) a certificate of each Secretary of State certifying the good standing of Seller in its state of formation and all states in which it is qualified to do business (or where by the nature of its business and activities, the failure to so qualify, individually or in the aggregate, would have a Seller Material Adverse Effect); (D) true and complete copies of the resolutions of the Board of Directors of Seller and the Shareholders authorizing the execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby, and (E) incumbency matters.
(r) Seller shall have delivered to Buyer, before the Closing Date, a detailed listing of the Fixed Assets to be included in the Acquired Assets as of the Closing Date, dated as of the most recent month ended before the Closing Date, which listing shall be certified as true and complete by Seller’s Chief Executive Officer and shall include each individually capitalized fixed asset included in the Acquired Assets, together with Seller’s original cost, in-service date, estimated useful life, and current net book value for each asset included thereon. Such listing shall reflect depreciation and amortization on a GAAP basis, and not on a federal income tax basis.
Appears in 1 contract
Conditions to Buyer’s Obligations. Each obligation of Buyer to be performed by or at the Closing, is, at the option of Buyer’s obligation to consummate the transactions contemplated hereby in connection with the Closing is , subject to satisfaction or waiver each of the following conditions:conditions set forth below.
(ia) the The representations and warranties set forth made by Seller in Section 22.a) this Agreement shall have been be true and correct accurate in all material respects on the date hereof and as of the Closing (except to with the extent expressly made same effect as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of though such representations and warranties have been given on and as of the Closing and Buyer shall have received a certificate, dated as of the Closing Date, signed by Seller to such effect. Seller shall also have performed or complied with, in all material respects, all of its obligations under this Agreement which are to be so true performed or complied with by it prior to or at Closing and correct has Buyer shall have received a certificate, dated as of the Closing Date, signed by Seller to such effect.
(b) There shall not had and would not reasonably be expected to have a material adverse effect on the condition Closing (i) any Order by any Governmental Body, (ii) any written threat thereof by any Governmental Body, which is evidenced by a writing from the threatening agency or (iii) any Proceeding, which in all reasonable likelihood, might prohibit or render illegal, the consummation of Acquired Assets as a whole the transaction contemplated herein or which seeks damages on account thereof.
(c) All agreements, documents, and instruments contemplated under this Agreement to be executed and delivered by Seller or its Affiliates shall have been duly executed by Seller or its Affiliates and shall be ready for delivery concurrently with the ability consummation of Seller to consummate the transactions contemplated herein;by this Agreement.
(iid) All required consents, approvals and waivers from any Governmental Body, including those under the HSR Act, shall have been received, or if applicable, the waiting period under the HSR Act applicable to the transactions contemplated hereby shall have expired or been terminated.
(e) The Assignment and Assumption Agreement substantially in the form of Exhibit I shall have been executed and delivered by Seller and Buyer.
(f) The Bill(s) of Sale substantially in the form of Exhibit J shall ▇▇▇▇ been executed and delivered by Seller to Buyer.
(g) Seller and Buyer shall execute and deliver to each other a Transition Services Agreement in substantially the form of Exhibit K-1; the Services Agreement (Long Term) in substantially the form of Exhibit K-2; and the Agreement for Anhydrous Ammonia Storage and Throughput Service in substantially the form of Exhibit Q.
(h) The Special Warranty Deeds substantially in the form of Exhibit L shall have been executed and delivered by Seller to Buyer.
(i) The Easements substantially in the form of Exhibit O shall have been executed and delivered by Seller to Buyer.
(j) No material and adverse change shall have occurred in the Business, and no Casualty Loss to the Assets which would have a Material Adverse Effect (as defined in Section 7.01), whether or not covered by insurance, shall have occurred since the Reference Balance Sheet Date, and Seller shall have delivered to Buyer a certificate dated as of the Closing Date, executed by Seller representing to Buyer such facts.
(k) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and delivered to the Acquired Assets shall be goodBuyer an accurate list, valid and marketable and free dated as of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, showing: (1i) all agreements, contracts and commitments of the bankruptcy court shall have typed listed on Exhibit F entered an order, in a form and substance satisfactory to Buyer and Seller (into since the “Sale Order”), (A) approving date of this Agreement and all of (including amendments, if any, to the terms and conditions hereofitems listed on Exhibit F), and (Bii) approving all other agreements, contracts and authorizing Seller commitments relating to consummate the transactions contemplated hereinBusiness or the Assets entered into since the date of this Agreement, including together with true, complete and accurate copies of all such documents (the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to "New Contracts"). Buyer shall have been delivered; and
the right and opportunity to review and approve the New Contracts. All of the New Contracts that are approved by Buyer shall be included in the Assets (viwith no addition or subtraction to or from the Purchase Price) and the future obligations of Seller thereunder shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer be assigned to and Security Equipment, as specifically set forth in Schedule II).assumed by Buyer pursuant to Section
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Kaneb Pipe Line Operating Partnership Lp)
Conditions to Buyer’s Obligations. Buyer’s obligation The obligations of Buyer to consummate the transactions contemplated hereby in connection with by this Agreement are subject to the satisfaction at or prior to the Closing is subject to satisfaction or waiver (and shall remain satisfied at and as of the Closing) of the following conditions:
, any or all of which may be waived by Buyer in its sole discretion in whole or in part: (i) each of the representations and warranties of Seller set forth in Section 22.a) shall have been 3 is true and correct on the date hereof and in all material respects as of the Closing (except to the extent expressly made as of an earlier dateDate, in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and or complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in respects with all agreements and covenants required by this Agreement to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding performed or complied with by it on or prior to the Closing Date, (1iii) the bankruptcy court Company shall have entered an order, in a form and substance provided evidence reasonably satisfactory to Buyer of the Company’s consent to the transfer of the Purchased Warrant, (iv) the Company shall have delivered to Buyer a new warrant having terms and conditions that are in substance identical to the original Seller Warrant (the “Sale OrderNew Buyer Warrant”), (A) approving this Agreement and all duly executed by the Company in the name of Buyer exercisable for 750,000 shares of Common Stock of the terms and conditions hereofCompany at an exercise price of $3.50, provided that such New Buyer Warrant shall contain language reasonably acceptable to Buyer limiting the ability of Buyer to exercise the New Buyer Warrant to the extent that such exercise would result in Buyer beneficially owning in excess of 9.99% of the Company’s outstanding Common Stock (after giving effect to such exercise), and (Bv) approving and authorizing Seller there shall not be any law in effect which would render the parties unable to consummate or perform the transactions contemplated hereinhereby or make such transactions illegal or prohibit, including the assumption restrict or delay such consummation or performance; and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order there shall not be in effect on any injunction or other order issued by a court of competent jurisdiction restraining or prohibiting the Closing Date;
(v) each delivery consummation or performance of the transactions contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)hereby.
Appears in 1 contract
Sources: Securities Purchase Agreement (Nomura Credit & Capital, Inc.)
Conditions to Buyer’s Obligations. All of Buyer’s obligations hereunder (including, without limitation, Buyer’s obligation to pay the Purchase Price, to accept title to the Property and to consummate the transactions contemplated hereby in connection with Closing) are expressly conditioned on the satisfaction at or before the time of Closing is subject to satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in Section 22.a) shall have been true and correct on the date hereof and conditions precedent being fully satisfied as of the Closing (any one or more of which may be waived in writing in whole or in part by Buyer, at Buyer’s option):
(a) At Closing, Seller shall deliver possession of the Property to Buyer free and clear of all tenancies and other occupancies except for the Master Lease and the Operating Subleases;
(b) Seller shall have timely delivered the items set forth in Section 10 above that Seller is obligated to deliver;
(c) Buyer shall have received from Title Insurer or any other title insurer approved by Buyer in its judgment and discretion, a current ALTA owner’s form of title insurance policy, or irrevocable and unconditional binder to issue the same, with extended coverage for the Real Property in the amount of the Purchase Price, dated, or updated to, the date of the Closing, insuring, or committing to insure, at its ordinary premium rates, Buyer’s good and marketable title in fee simple to the Real Property and otherwise in such form and with such endorsements as provided in the title commitment approved by Buyer pursuant to Section 6 hereof, subject only to the Permitted Exceptions;
(d) The Real Property shall have a valid, permanent and unconditional certificate of occupancy (or the equivalent thereof) for the use and occupancy of the Property (to the extent expressly required by applicable law) which shall not contain any contingencies or require any additional work to be completed, and Buyer shall have received a copy of such certificate;
(e) Each Operating Subtenant shall be in possession of the subpremises demised under each of the Operating Subleases, open for business to the public and paying full and unabated rent under the Master Lease;
(f) Between the date hereof and the applicable Closing Date, there shall have been no event having a Material Adverse Effect with respect to the financial or physical condition of the Property or the business operated thereon;
(g) The municipality in which the Property is located or any other relevant governmental authority has issued all certificates, permits and inspection and other approvals that may be required as a condition to the transfer of the Property to Buyer and to continue to operate the Property;
(h) No later than five (5) business days prior to the Closing Date, Seller shall have obtained an estoppel certificate as to each restrictive covenant, declaration and/or reciprocal easement agreement of record, which estoppel certificate shall: (i) be executed by each party entitled to enforce such document; (ii) confirm that such document is in full force and effect, unmodified except as revealed by the Title Report/Commitment received by Buyer; (iii) confirm that there are no defaults by the Seller and/or the Property under such document; (iv) confirm that there are no outstanding sums owed by the Seller and/or the Property; (v) confirm that there are no outstanding construction or similar obligations of Seller and/or the Property; and (vi) be dated no earlier than thirty (30) days prior to Closing;
(i) The representations and warranties of Seller contained in this Agreement shall have been true when made and shall be true in all material respects at and as of an earlier date, in which case as the date of such date Closing as if such representations and warranties were made at and as of such date)the Closing, except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respectsrespects with all covenants, agreements and conditions required by this Agreement to be performed or complied with by Seller prior to or at the Closing;
(iiij) Seller’s title in All Regulatory Approvals shall have been issued and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesobtained;
(k) With respect to the Final Closing, (i) Buyer shall have received an as-built ALTA survey certified to and/or as directed by Buyer, confirming that the Huntersville Improvements are legal conforming and comply with the approved site plan and any variance issued in connection with the construction and development of the Huntersville Property and do not encroach upon any easement or across the boundary line of the Huntersville Real Property; (ii) a certificate of occupancy shall have been issued permitting the lawful use, operation and occupancy of the Facility, (iii) all licenses, certifications and approval required for the operation of the Facility have been unconditionally issued, (iv) Seller shall have made all contributions, payments and/or reimbursements required by any governmental authority in connection with the construction and development of the Huntersville Property, including, without limitation, any tap fees and otherwise as required by any variance or site plan approval, and (v) Buyer shall have received the COO Notification on or before the first (1st) anniversary of the Effective Date of this Agreement, time being of the essence. If any of the foregoing conditions precedent have not been satisfied as of applicable Closing, Buyer may: (i) waive any unsatisfied conditions and proceed to Closing in accordance with the terms and provisions hereof with no deduction from or adjustment of the Purchase Price except for (a) adjustment equal to the amount required to satisfy and discharge of record at or before Closing of any and all liens (excluding Bonded Liens), judgments or other encumbrances which can be removed by the payment of a fixed and ascertainable amount together with interest and penalties thereon, if any, and together with any additional title insurance costs or premiums imposed by Title Insurer by reason thereof, and (b) the cost of curing any failed condition precedent to the extent that Seller becomes subject reducible to a Chapter 11 Proceeding prior to the Closing Date, liquidated sum; or (1ii) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving terminate this Agreement and all of by delivering written notice thereof to Seller no later than Closing, upon which termination the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller ▇▇▇▇▇▇▇ Money shall be refunded to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Griffin-American Healthcare REIT III, Inc.)
Conditions to Buyer’s Obligations. Buyer’s obligation obligations under this Agreement are subject to consummate the transactions contemplated hereby in connection with satisfaction or removal on the Closing is subject to satisfaction or waiver Date of each of the following conditions:, any or all of which may be removed only in writing by Buyer, except that they shall be deemed to have been removed at the consummation of the Closing.
(a) The representations and warranties of Seller contained in this Agreement shall be true in all material respects on the Closing Date as if made on that date.
(b) All covenants, agreements and obligations on the part of Seller to have been performed or complied with under this Agreement prior to the Closing Date shall have been performed and complied with.
(c) Buyer is satisfied in Buyer’s sole discretion with Buyer’s due diligence review of the Purchased Assets.
(d) Buyer or Buyer’s counsel or accountant will have reviewed the tax returns and financial statements of Seller and shall have determined in Buyer’s sole judgment and discretion that the same are satisfactory and acceptable to Buyer.
(e) Buyer shall have entered into an employment agreement with both ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ on terms satisfactory to Buyer.
(f) Buyer has reviewed the terms of all Customer Contracts and the terms thereof are satisfactory to Buyer in buyer’s sole judgment and discretion.
(g) Each Customer Contract has been properly assigned to Buyer pursuant to an assignment signed by Seller and the applicable customer effective as of Closing and which further provides that all future payments should be made to Buyer at ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇).
(h) Buyer and Seller shall have entered into a sublease of the lease agreement with respect to the Location (“Location Lease”) in the form attached hereto as Exhibit B, subject to obtaining the consent of the landlord to such assignment, whereby Seller will sublease the Location Lease from Buyer on the same terms and conditions set forth in the Location Lease, provided that Buyer at its election may waive the requirement that Seller obtain the consent of the landlord to such sublease as a condition precedent hereunder.
(i) On or before the representations and warranties set forth in Section 22.a) Closing Date, Buyer shall have been true obtained from the appropriate governmental authorities and correct agencies on terms satisfactory to Buyer any and all federal, state, municipal or other governmental licenses, permits and consents, necessary, in Buyer’s discretion, for Buyer to occupy, use and operate the date hereof Business as Buyer determines in its discretion.
(j) All of the Purchased Assets are and as of the Closing (except will be in good working order and repair, normal wear and tear excepted, and there shall have been no material adverse change to the extent expressly made as Purchased Assets since the date of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;this Agreement.
(iik) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding On or prior to the Closing Date, Buyer shall be satisfied in its sole discretion in all respects that no person other than Seller is claiming an interest in the Purchased Assets.
(1l) the bankruptcy court Seller shall have entered an order, in a form and substance satisfactory delivered to Buyer a receipt or certificate from the Tennessee Tax Commissioner showing all applicable taxes together with any interest and penalties, if any, owing with respect thereto have been paid through the date of such receipt or certificate in form acceptable to Buyer. Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller shall also have delivered to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller Buyer evidence satisfactory to Buyer, and (2) in its sole discretion, but acting reasonably, that Seller has no order stayingliability for contributions, reversing, modifying interest or amending the Sale Order shall be in effect on the Closing Date;penalties with respect to unemployment contributions.
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vim) Seller shall deliver have terminated all employees working for Seller in connection with the Leased Premises in vacant, broom clean condition Business and those employees of Seller that Buyer desires to hire have been properly terminated by Seller as of Closing and have agreed to work for Buyer on terms acceptable to Buyer. Seller shall comply with all FF&E, laws including but not limited to COBRA with respect to any persons terminated for whom Seller offered health insurance.
(including without limitation n) The transaction contemplated by this Agreement has been approved by the Computer and Security Equipment, as specifically set forth in Schedule II)Board of Directors of Buyer.
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with by this Agreement shall be subject to the fulfillment at or prior to the Closing is subject to satisfaction or waiver of each of the following conditions, unless waived by such Party at or prior to the Closing:
(i) the representations and warranties set forth in Section 22.a) Sellers shall have been true and correct delivered the certificates representing the POMI Shares, together with duly executed instruments of assignment separate from certificate to the Buyer, together with such other documents as may be necessary for the transfer of record ownership of the POMI Shares to the Buyer on the date hereof and as stock records of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinPOMI;
(ii) Seller The purchase of the sole outstanding share of Proportionate Voting Preferred Stock, par value $0.0001 per share, of POPT by Pacific Office Holding, Inc. shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respectsbeen consummated;
(iii) Seller’s title in and to the Acquired Assets Advisory Agreement shall be good, valid and marketable and free of all liens and encumbranceshave been terminated;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court Sellers shall have entered an order, in a form and substance satisfactory delivered to Buyer the resignations of all officers and Seller (directors of POMI that are requested by the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on effective as of the Closing Date;
(v) Each of the representations and warranties made by the Sellers in this Agreement that is qualified by reference to materiality or Material Adverse Effect shall be true and correct, and each delivery contemplated of the other representations and warranties made by Section 11(a) to the Sellers in this Agreement shall be delivered to Buyer shall have been deliveredtrue and correct in all material respects, in each case as of the date of this Agreement and at and as of the Closing Date as if made on that date (except in any case that representations and warranties that expressly speak as of a specified date or time need only be true and correct as of such specified date or time); and
(vi) Seller Since the date of this Agreement, no event, circumstance or change shall deliver have occurred, that individually or in the Leased Premises in vacantaggregate with one or more other events, broom clean condition circumstances or changes, have had or reasonably would be expected to have, a Material Adverse Effect with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)respect to POMI.
Appears in 1 contract
Sources: Stock Purchase Agreement (Pacific Office Properties Trust, Inc.)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction (or waiver Buyer's written waiver) of the following conditionsconditions as of the Closing Date:
(ia) the The representations and warranties set forth in Section 22.a) Articles III and IV shall have been be true and correct on the date hereof at and as of the Closing Date as though then made (except without giving effect to any materiality or Material Adverse Effect qualifiers contained in such representations and warranties and in the extent expressly made case of representations and warranties that address matters as of an earlier date, in particular dates which case as of such date as if made shall be true and correct at and as of such dateparticular dates), except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, have a Material Adverse Effect;
(b) The Company and the Sellers shall have performed in all respects the covenants and agreements under Section 6.01(b)(xii) and 6.01(c) and in all material respects all of the other covenants and agreements required to be performed by them under this Agreement at or prior to the Closing;
(c) The applicable waiting periods, if any, under the HSR Act shall have expired or been terminated;
(d) Since the date of this Agreement, there shall have been no Material Adverse Effect;
(e) Since the date of this Agreement, there has not had and been no new litigation commenced or, to the Company's knowledge, threatened, against the Company or its Subsidiaries other than which would not not, individually or in the aggregate, be reasonably be expected to have a material adverse effect on Material Adverse Effect;
(f) No statute, rule, regulation, judgment, decree, ruling, injunction or order shall have been enacted or entered and no action, suit or proceeding shall have been instituted which restrains, enjoins, prohibits, invalidates or otherwise prevents the condition consummation of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinhereby;
(g) All consents, approvals, filings, notices and waivers which are set forth on Section 2.01(g) of the Disclosure Schedules shall have been obtained;
(h) At or prior to the Closing, each Seller shall deliver to Buyer a certificate in the form of U.S. Treasury Regulations Section 1.1445-2(b)(2)(iv)(A) or (B), as the case may be, or, at the option of the Sellers, an affidavit, under penalties of perjury, stating that the Company is not and has not been a United States real property holding corporation, dated as of the Closing Date and in form and substance required under Treasury Regulation Section 1.897-2(h) so that Buyer is exempt from withholding any portion of the Purchase Price thereunder;
(i) The Wheelset Supply and Services Agreement dated November 9, 1999 shall be in full force and effect to the same extent such agreement was in effect prior to the Closing (subject to among other things, for the avoidance of doubt, the disclosures set forth in Section 2.01(i) of the Disclosure Schedules);
(j) The existing Employment Agreements with each of ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as amended and restated by the Employment Agreement Amendments, executed prior to the date hereof and the Employment Agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ executed prior to the date hereof, shall have been duly authorized and be in full force and effect against each of ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
(k) Buyer shall have received evidence reasonably satisfactory to it that the following agreements of the Company have been terminated in connection with the Closing: (i) the Advisory Services Agreement dated as of November 23, 2004 between the Company and Olympus Advisory Partners, Inc. and (ii) the Company Stockholders Agreement dated as of November 23, 2004 among the Company and the stockholders party thereto;
(l) Buyer shall have received, dated as of the Closing Date and addressed to Buyer, substantially in the form of Exhibit B attached hereto an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, legal counsel to Olympus Growth Fund IV, L.P. ("Olympus") and the Company; and
(m) The Company or the Seller Representative (on behalf of the Sellers), as the case may be, shall have delivered to Buyer each of the following:
(i) a certificate of the Company in a form reasonably satisfactory to Buyer, dated as of the Closing Date, stating that the preconditions specified in Sections 2.01(a) and (b), as they relate to the Company have been satisfied;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through a certificate of Olympus in a form reasonably satisfactory to Buyer, dated as of the Closing Date, stating that the preconditions specified in all material respectsSections 2.01(a) and (b), as they relate to Olympus have been satisfied;
(iii) Seller’s title a certificate of each Seller other than Olympus in a form reasonably satisfactory to Buyer, dated as of the Closing Date, stating that the preconditions specified in Sections 2.01(a) and (b), as they relate to such Seller have been satisfied, or, at the option of the Company, a certificate of the Company in a form reasonably satisfactory to Buyer, dated as of the Closing Date, stating that, to the Acquired Assets shall be goodCompany's knowledge, valid the preconditions specified in Sections 2.01(a) and marketable and free of all liens and encumbrances(b), as they relate to such Seller have been satisfied;
(iv) copies of customary payoff letters from all holders of Indebtedness for borrowed money to be paid at Closing as part of the extent that Seller becomes subject Indebtedness Payoff Amount in a form reasonably satisfactory to a Chapter 11 Proceeding prior Buyer (which payoff letters shall be attached to the Closing DatePayment Certificate), (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory provide to Buyer and Seller recordable lien releases simultaneously with the Closing;
(the “Sale Order”), (Av) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order fully executed Warrant Cancellation Agreements which shall be in effect on full force and effect;
(vi) the Holdback Agreement fully executed by Sellers and the Escrow Agent which shall be in full force and effect;
(vii) resignations effective as of the Closing Date from such officers and directors of the Company and its Subsidiaries as Buyer shall have requested in writing and delivered to the Company and the Seller Representative not less than five days prior to the Closing Date;
(vviii) each delivery contemplated a copy of the certificate of incorporation of the Company (certified by Section 11(athe Secretary of State of Delaware) to be delivered to Buyer shall have been deliveredand a certificate of good standing from the State of Delaware for the Company dated within fifteen days of the Closing Date; and
(viix) Seller certified copies of the resolutions duly adopted by the Company's board of directors authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby, and the consummation of the transactions contemplated hereby and thereby, including termination of the agreements and documents identified in Section 1.06 above.
(n) The Sellers and the Company shall deliver have delivered to Buyer such other documents as Buyer may reasonably request for the Leased Premises in vacantpurpose of facilitating the consummation or performance of any of the transactions contemplated by this Agreement, broom clean condition with including, without limitation, the Shares and appropriate stock powers. If the Closing occurs, all FF&E, (including without limitation the Computer and Security Equipment, as specifically closing conditions set forth in Schedule II)this Section 2.01 which have not been fully satisfied as of the Closing shall be deemed to have been fully waived by Buyer.
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Purchase Agreement is subject to the satisfaction or waiver of the following conditionsconditions at or before the Closing:
(iA) the The representations and warranties set forth of Seller and the Company contained in Section 22.a) 3.1 of this Purchase Agreement shall have been be true and correct on as of the date hereof of this Purchase Agreement and as of the Closing Date (except with respect to the effect of transactions contemplated or permitted by this Purchase Agreement and except to the extent expressly made as of an earlier date, in which case as of that such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has shall not had and would not reasonably be expected to have a material adverse effect on the condition Business Condition) and the representations and warranties of Acquired Assets Seller and the Company contained in Section 3.2 of this Purchase Agreement shall be true and correct as of the date of this Purchase Agreement and as of the Closing Date (except with respect to the effect of transactions contemplated or permitted by this Purchase Agreement and with respect to the effect of the passage of time upon dated material set forth in the Schedules (but only to the extent that such effect upon the Schedules does not constitute a whole or material adverse effect on the ability of Seller Company or the Company Subsidiaries) and except to consummate the transactions contemplated hereinextent that such failure shall not have a material adverse effect on the Business Condition);
(iiB) Seller and the Company shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respectsrespects with all agreements and covenants required by this Purchase Agreement to be performed or satisfied by Seller and/or the Company, and Seller and the Company shall have delivered to Buyer all documents, certificates, and instruments required to be delivered by Seller and/or the Company under the terms of this Purchase Agreement, including, without limitation, the documents referred to on Appendix B;
(iiiC) Seller’s title All corporate and other proceedings or actions required to be taken by Seller or the Company in and to connection with the Acquired Assets transactions contemplated by this Purchase Agreement shall be good, valid and marketable and free of all liens and encumbranceshave been taken;
(ivD) All material governmental approvals and authorizations necessary for consummation of the transactions contemplated by this Purchase Agreement shall have been duly issued or granted except for any failure which would not have a material adverse effect on the Business Condition, and the waiting period (and any extensions thereof) under the Hart-Scott-Rodino Act shall have expired or otherwise b▇▇▇ ▇▇▇▇▇▇▇▇▇▇;
(E) There shall not have been issued and in effect any injunction or similar legal order prohibiting or restraining consummation of any of the transactions contemplated in this Purchase Agreement;
(F) Since today's date, there shall not have been any change or changes in the Business Condition which individually or in the aggregate constitute a Material Event;
(G) Buyer shall have received an opinion of counsel for the Seller and the Company in customary from reasonably acceptable to Buyer;
(H) To the extent that Seller becomes subject any of the financial statements or information referred to a Chapter 11 Proceeding prior to in Section 7.5 is available on or before the Closing Date, (1) the bankruptcy court Seller shall have entered an order, in a form and substance satisfactory to Buyer and Seller (delivered the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller same to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(vI) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been deliveredreceived the resignations of the directors of the Company; and
(viJ) Seller To the extent that any of the financial books and records of the Company or any Company Subsidiary are in the possession of anyone other than the Company or a Company Subsidiary, such books and records shall deliver have been delivered to the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)Company or such Company Subsidiary.
Appears in 1 contract
Sources: Share Purchase Agreement (PCD Inc)
Conditions to Buyer’s Obligations. All of Buyer’s obligations hereunder (including, without limitation, Buyer’s obligation to pay the Purchase Price, to accept title to the Property and Operating Assets and to consummate the transactions contemplated hereby in connection with Closing) are expressly conditioned on the satisfaction at or before the time of Closing is subject to satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in Section 22.a) shall have been true and correct on the date hereof and conditions precedent being fully satisfied as of the Closing (any one or more of which may be waived in writing in whole or in part by Buyer, at Buyer’s option):
(a) At Closing, Seller shall deliver possession of the Property to Buyer free and clear of all tenancies and other occupancies, subject to the Permitted Exceptions, except for the the Master Lease and the rights of residents and patients pursuant to admission or residency agreements assigned by Current Operator to Tenant in connection with the Operations Transfer;
(b) Seller Parties, Tenant and Guarantor shall have timely delivered the items set forth in Section 10 above that they are obligated to deliver;
(c) Buyer shall have received from Title Company or any other Title Company approved by Buyer in its judgment and discretion, a current ALTA owner’s form of title insurance policy, or irrevocable and unconditional binder to issue the same, with extended coverage for the Real Property in the amount of the Purchase Price, dated, or updated to, the date of the Closing, insuring, or committing to insure, at its ordinary premium rates, Buyer’s good and marketable title in fee simple to the Real Property and otherwise in such form and with such endorsements as provided in the title commitment approved by Buyer pursuant to Section 6 hereof, subject only to the Permitted Exceptions;
(d) The Real Property shall have a valid, permanent and unconditional certificate of occupancy (or the equivalent thereof) for the use and occupancy of the Property by Tenant (to the extent expressly made as of an earlier daterequired by applicable law) which shall not contain any contingencies or require any additional work to be completed, in which case as and Buyer shall have received a copy of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereincertificate;
(iie) Seller Tenant shall have performed be in possession of the premises demised under the Master Lease and complied with its covenants and agreements hereunder through open for business to the Closing in all material respectspublic;
(iiif) Seller’s title in Between the date hereof and the Closing Date, there shall have been no event having a Material Adverse Effect with respect to the Acquired Assets shall be goodProperty, valid and marketable and free of all liens and encumbrancesthe business operated thereon or the Operating Assets;
(ivg) The municipality in which the Property is located or any other relevant governmental authority issues all certificates, permits and inspection and other approvals that may be required as a condition to the extent that Seller becomes subject transfer of the Property to a Chapter 11 Proceeding Buyer and to continue to operate the Property;
(h) No later than five (5) Business Days prior to the Closing Date, Seller shall have obtained an estoppel certificate as to each restrictive covenant, declaration and/or reciprocal easement agreement of record, which estoppel certificate shall: (1i) be executed by each party entitled to enforce such document; (ii) confirm that such document is in full force and effect, unmodified except as revealed by the Title Report/Commitment received by Buyer; (iii) confirm that there are no defaults by the Seller and/or the Property under such document; (iv) confirm that there are no outstanding sums owed by the Seller and/or the Property; (v) confirm that there are no outstanding construction or similar obligations of Seller and/or the Property; and (vi) be dated no earlier than thirty (30) days prior to Closing;
(i) The representations and warranties of Seller Parties, Tenant and Guarantor contained in this Agreement shall have been true when made and shall be true at and as of the date of Closing as if such representations and warranties were made at and as of the Closing, and Seller Parties and Tenant shall have performed and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed or complied with by Seller Parties and Tenant prior to or at the Closing;
(j) All Regulatory Approvals shall have been issued and obtained;
(k) Seller shall have timely delivered the Representation Letter and the Audit Letter required by Section 33, and Buyer is reasonably satisfied with the results of said audit;
(l) [Buyer shall have received evidence reasonably satisfactory to it demonstrating that the average cumulative census per patient/resident days for all of the Facilities during the six (6) month period preceding Closing, calculated in the aggregate based upon a possible total of 660,285 annual patient days (which total is calculated by multiplying (i) the bankruptcy court number of 1,809 licensed beds currently in operation by (ii) 365 days) is not less than seventy percent (70%), as compared to the Current Census (defined in Section 11(d)(iv));]
(m) Buyer shall have entered an order, in a form and substance received evidence reasonably satisfactory to Buyer and Seller that the annualized Facility EBITDAR (as said term is defined in the “Sale Order”), (A) approving Master Lease attached as an exhibit to this Agreement and all of the terms and conditions hereofAgreement, and which definition imputes a five percent (B5%) approving and authorizing Seller to consummate management fee, among other assumptions) for all Facilities (computed in the transactions contemplated herein, including aggregate on a trailing basis for the assumption and assignment of the Leases by Seller to Buyer, and six (26) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Datemonth period preceding Closing) is not less than $10,700,000.00;
(vn) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have received evidence reasonably satisfactory to Buyer that the average cumulative revenue for all Facilities (computed on a trailing basis for the six (6) month period preceding Closing) deriving from Medicaid does not exceed seventy percent (70%);
(o) All documents required to complete the Operations Transfer have been deliveredexecuted and unconditionally delivered (subject only to completion of the Closing), and all actions required to complete the Operations Transfer have been unconditionally performed (subject only to completion of the Closing), including Tenant’s receipt of the Regulatory Approvals required for it to operate the Facilities as operated by Current Operators as of the Effective Date; and
(vip) Buyer shall have received the clearance certificates required by Section 17 of this Agreement. If any of the foregoing conditions precedent have not been satisfied as of Closing, Buyer may, in its sole and absolute discretion, either: (i) waive any unsatisfied conditions and proceed to Closing in accordance with the terms and provisions hereof with no deduction from or adjustment of the Purchase Price except for (a) other than the adjustment equal to the amount required to satisfy and discharge of record at or before Closing of any and all liens, judgments or other encumbrances which can be removed by the payment of a fixed and ascertainable amount together with interest and penalties thereon, if any, and together with any additional title insurance costs or premiums imposed by Title Company by reason thereof, and (b) the reasonable cost of curing any failed condition precedent to the extent reducible to a liquidated sum; (ii) suspend the Closing Date on one or more occasions for a period of time as Buyer shall reasonably determine in order to allow for all of the foregoing conditions precedent to be satisfied, during which period Seller, Current Operator and Buyer shall work cooperatively and with reasonable diligence to satisfy all of said conditions, or (iii) terminate this Agreement by delivering written notice thereof to Seller no later than Closing, upon which termination the Deposit shall be refunded to Buyer and, if the termination is the result of the failure of a condition in ▇▇▇▇▇▇▇ ▇▇(▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (o) and/or (p), above, Seller shall deliver reimburse Buyer for all reasonable and documented costs and expenses incurred by Buyer in connection with the Leased Premises in vacantnegotiation and performance of this Agreement and the proposed acquisition of the Property and the Operating Assets, broom clean condition with all FF&E, (including without limitation Buyer’s due diligence investigations of the Computer Property and Security EquipmentOperating Assets, as specifically set forth in Schedule II)title insurance company charges, survey charges, third-party diligence reports, attorneys’ fees and other out-of-pocket costs, all obligations, liabilities, and rights of the parties under this Agreement shall terminate.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Griffin-American Healthcare REIT IV, Inc.)
Conditions to Buyer’s Obligations. The Closing and Buyer’s obligation to consummate the transactions contemplated hereby in connection with the Closing is by this Agreement are subject to the satisfaction or waiver of the following conditions:conditions or Buyer’s written waiver thereof on or before the Closing Date. Buyer may waive in writing any or all of such conditions in its sole and absolute discretion.
(ia) Seller shall have made the deposits required in Section 6.
(b) Seller’s representations and warranties set forth in Section 22.a) herein shall have been be true and correct on the date hereof and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;Closing.
(iic) Seller shall have performed and complied with its covenants and agreements hereunder through all of the Closing in all material respects;obligations to be performed by Seller under the Agreement at or prior to Closing.
(iiid) Seller’s title Buyer shall have received a tenant estoppel certificate acceptable to Buyer in and its reasonable discretion from each of the following tenants (the “Estoppel Certificates”): (i) Publix related to the Acquired Assets Publix Lease, and (ii) ▇▇▇▇▇ Appliances, Inc. or an affiliate thereof (“▇▇ ▇▇▇▇▇”) related to that certain Lease dated July 9, 2007 (“▇▇ ▇▇▇▇▇ Lease”) affecting a portion of the Property. The Estoppel Certificates shall be good, valid deemed acceptable to and marketable and free approved by Buyer unless either or both of all liens and encumbrances;
the Estoppel Certificates: (iv1) discloses material adverse economic terms of the applicable lease that were not disclosed to Buyer (whether in the extent that Seller becomes subject applicable lease or any other document delivered to a Chapter 11 Proceeding Buyer) prior to the Closing Datedate of the delivery of such Estoppel Certificate to Buyer, (12) the bankruptcy court shall have entered an order, in alleges a form and substance satisfactory to Buyer and material default of Seller (as landlord) under the “Sale Order”)applicable lease, or (3) discloses a material dispute between the Seller (as landlord) and the tenant in connection with the applicable lease. Notwithstanding anything set forth in this Agreement to the contrary, Seller shall not be required to, and it shall not be a default by Seller under this Agreement if Seller does not: (A) approving this Agreement and deliver to Buyer estoppel certificates from any or all of the terms and conditions hereoftenants at the Property, and including, without limitation, Publix and/or ▇▇ ▇▇▇▇▇, or (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment update or refresh any of the Leases Estoppel Certificates delivered by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)Publix and/or ▇▇ ▇▇▇▇▇.
Appears in 1 contract
Sources: Purchase and Sale Agreement (TNP Strategic Retail Trust, Inc.)
Conditions to Buyer’s Obligations. Buyer’s obligation The obligations of Buyer to consummate the transactions contemplated hereby in connection with the Closing is are subject to satisfaction the fulfillment, prior to or waiver at the Closing, of each of the following conditions:conditions failing any of which the Buyer may in its sole discretion terminate this Agreement without incurring any liability whatsoever to any Person thereby (provided that all or any of which may be waived in whole or in part by Buyer):
(ia) the representations and warranties set forth of Seller contained in Section 22.a) this Agreement, and the statements contained in the Exhibits and Schedules, shall have been true and correct in all material respects when made and, except as contemplated or permitted herein or therein or except as consented to by Buyer in writing, shall continue to be true and correct in all material respects on the date hereof and as of the Closing (except to with the extent expressly made same effect as of an earlier date, in which case as of such date as if though made at the Closing and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing with, in all material respects, all agreements, obligations and conditions required by this Agreement to be performed or complied with by it prior to or at the Closing;
(iiib) Buyer shall have completed and been satisfied, in its sole discretion, with the results of its due diligence reviews regarding the Assets, the Business and the financial information provided by Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(ivc) no lawsuit, investigation, inquiry or other legal proceeding shall have been commenced, whether by a third party or any Governmental Authority, seeking to enjoin, delay or otherwise assert an adverse claim with respect to any of the transactions contemplated by this Agreement;
(d) no law shall have been enacted, introduced or announced which materially and adversely affect the Assets or the Business as a whole;
(e) Seller shall have delivered to Buyer a certificate, dated the Closing Date and executed by the President or a Vice President of Seller, certifying to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to fulfillment of the Closing Date, conditions set forth in Section 7.1(a);
(1f) the bankruptcy court Buyer shall have entered an orderreceived executed counterparts of the consents listed in Schedule 2.9, all of which consents shall be in a form and substance reasonably satisfactory to Buyer; ------------
(g) Seller shall have delivered to Buyer and Seller (the “Sale Order”), (A) approving copies of all resolutions of Seller's Board of Directors relating to this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated hereinhereby, including certified by the assumption Secretary (or an Assistant Secretary) of Seller as being in full force and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be . Seller shall have also delivered to Buyer shall have been delivereda certificate, dated the Closing Date and executed by the Secretary (or an Assistant Secretary) of Seller, certifying the titles, names and true signatures of each of the officers of Seller executing this Agreement and the other agreements, documents and instruments executed and delivered by Seller at or prior to the Closing in connection with this Agreement or the transactions contemplated hereby; and
(vih) no provision of any applicable law or regulation and no judgment, injunction, order or decree of any court or other Governmental Authority shall prohibit the consummation of the Closing.
(i) Buyer shall have received, properly executed, all Closing Deliveries of Seller shall deliver the Leased Premises referenced in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)Section 3.3 of this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Baldwin Technology Co Inc)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction or waiver of the following conditionsconditions as of the Closing Date:
(ia) the The representations and warranties set forth in Section 22.a) Article IV and Article V shall have been be true and correct on the date hereof at and as of the Closing Date as though then made and as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties (except to the extent expressly made other than those representations and warranties that address matters as of an earlier date, in particular dates which case as of such date as if made shall be true and correct at and as of such dateparticular dates), except where the failure of such representations and warranties to be so true and correct has not had (if read without regard to any materiality qualifiers contained therein, including Material Adverse Effect) would not, in the aggregate, have a Material Adverse Effect;
(b) The Company shall have performed in all material respects all of the covenants and agreements required to be performed by them under this Agreement at or prior to the Closing;
(c) The applicable waiting periods, if any, under the HSR Act shall have expired or have been terminated;
(d) No judgment, decree or order shall have been entered which would not prevent the performance of this Agreement or the consummation of any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement or cause such transactions to be rescinded, and no lawsuit, legal proceeding or claim shall be pending that would reasonably be expected to have a material adverse effect on succeed, and, if successful, would prevent the condition performance of Acquired Assets as a whole this Agreement or on the ability consummation of Seller to consummate any of the transactions contemplated hereinhereby, declare unlawful the transactions contemplated by this Agreement or cause such transactions to be rescinded;
(e) The financing contemplated by the Bank Commitment Letter will have been consummated on the terms and conditions contemplated therein (including any changes thereto contemplated by the Fee Letter) or upon terms and conditions which are substantially equivalent thereto;
(f) A certificate, duly completed and executed pursuant to Sections 1.897-2(h) and 1.1445-2(c) of the Treasury Regulations, issued by the Company certifying that the Shares and Options are not United States real property interests;
(g) The Company, its Subsidiaries and Affiliates shall have consummated the transactions contemplated by that certain Securities Purchase Agreement (the “Dairy Purchase Agreement”), dated October 1, 2003, by and among ▇▇▇▇▇▇▇ Foods, Inc., ▇▇▇▇▇▇▇ Foods of Delaware, Inc., Kohler Mix Specialties, Inc., M-Foods Dairy Holdings, LLC, Marathon Dairy, LLC and Suiza Dairy Group, Inc., without such agreement having been modified or waived in a manner adverse to the Company and its Subsidiaries;
(h) The Company or the Stockholder Representative (on behalf of the Stockholders), as the case may be, shall have delivered to Buyer each of the following:
(i) a certificate of the Company in the form set forth in Exhibit A, dated the Closing Date, stating that the preconditions specified in subsections (a) and (b) have been satisfied;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the payoff letters relating to the repayment of the Closing in Indebtedness pursuant to Section 2.04(b), together with UCC-3 termination statements or similar documents evidencing the termination of all material respectsliens, security interests, mortgages and other encumbrances held by the lenders under the Closing Indebtedness;
(iii) Seller’s title the stock certificates representing the Shares indicated on the Stockholders Schedule, in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbranceseach case duly endorsed for transfer or accompanied by duly executed stock powers or transfer documents;
(iv) a copy of the Certificate of Incorporation certified by the Secretary of State of Delaware and a certificate of good standing from Delaware and each jurisdiction in which the Company and each Subsidiary is duly qualified to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an ordertransact business, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”)each case, (A) approving this Agreement and all dated within ten days of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each certified copies of the resolutions duly adopted by the Company’s board of directors authorizing its execution, delivery and performance of this Agreement and the other agreements contemplated hereby to which it is a party, and the consummation of all transactions contemplated hereby and thereby;
(vi) certified copies of resolutions of the Stockholders of the Company unanimously approving the consummation of the transactions contemplated by Section 11(a) to be delivered to Buyer shall have been deliveredthis Agreement; and
(vivii) Seller shall deliver a certified copy of the Leased Premises in vacantCompany’s and each Subsidiary’s by-laws, broom clean condition with all FF&Eamendments thereto, dated within ten days prior to the Closing Date; and
(including without limitation i) The Company shall have received affirmative tenders and acceptances of payment for not less than eighty percent (80%) of the Computer aggregate principal amount of the outstanding 113/4% Senior Subordinated Notes pursuant to the Tender Offer;
(j) The Company shall have terminated those contracts and Security Equipmentagreements listed on the Terminated Contracts Schedule;
(k) The Company shall have received resignations effective as of the Closing Date from each director of the Company and each Subsidiary;
(l) The Company shall have received releases from each Stockholder and recipient of the Deferred Comp Amount, upon payment of the amounts due, in the form attached hereto as specifically Exhibit B; and
(m) There shall be no Dissent Shares. If the Closing occurs, all closing conditions set forth in Schedule II)this Section 3.01 which have not been fully satisfied as of the Closing shall be deemed to have been fully waived by Buyer.
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s obligation The obligations of Buyer to consummate the transactions contemplated hereby in connection with by this Agreement will be subject to the fulfillment at or prior to the Closing is subject to satisfaction or waiver of each of the following additional conditions:
(ia) the The representations and warranties of Seller and the Company set forth in Section 22.a) this Agreement shall have been in each case be true and correct in all respects (provided that representations and warranties qualified by materiality shall be read without such qualification), on and as the date hereof and on and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date)Date, except where the failure of such representations and warranties to be so true and correct has meet such standard does not had and would not reasonably be expected to have a material adverse effect Material Adverse Effect, and provided that those representations and warranties which expressly relate to a particular date shall be measured only on the condition and as of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;such particular date.
(iib) Seller and the Company shall have performed and complied with its in all material respects all covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and required to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding performed by them under this Agreement on or prior to the Closing Date.
(c) Between August 31, 2003 and the Closing Date, there shall not have occurred any Material Adverse Effect, or any development which could be reasonably likely to result in a Material Adverse Effect.
(d) All signatories other than Seller and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ from the Company’s bank accounts, lock box accounts and other accounts listed in Schedule 4.27 shall have resigned as an authorized signatory thereto.
(e) All consents, approvals, orders or authorizations of any Person (other than a Governmental Authority) listed on Schedule 4.03, including without limitation, the consents of (1) the bankruptcy court shall have entered an orderUnited Financial Group, in a form Inc. (with respect to Equipment Lease Nos. 102362, 102363, 102364, 102420 and substance satisfactory to Buyer and Seller (the “Sale Order”), (A102466) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order stayingUS Bancorp, reversing, modifying shall have been obtained in writing by Seller or amending the Sale Order Company to the reasonable satisfaction of Buyer.
(f) Seller shall be have provided evidence reasonably satisfactory to Buyer of the insurability of Seller under a “key man” life insurance policy in effect on the Closing Datea minimum amount of One Million Dollars ($1,000,000) with a financially sound and reputable insurer having an A-rating or better from Best’s Rating Service (or any successor organization);
(vg) each delivery contemplated Seller shall have provided evidence reasonably satisfactory to Buyer that the Company’s working capital as of the Closing Date is at least equal to the Company’s working capital set forth on the Company’s balance sheet at August 31, 2003 which was previously provided to Buyer, which working capital shall be determined based on, and in conjunction with, the Inventory Determination;
(h) The Inventory Determination shall have been conducted by Section 11(aSeller in a manner reasonably satisfactory to Buyer;
(i) Buyer shall have completed its investigation of the Business and Buyer shall be satisfied in its sole discretion with the condition of the Business and its future prospects;
(j) prior to be or at Closing, Seller shall have delivered to Buyer all closing documents as shall have been deliveredbe requested by Buyer in form and substance acceptable to Buyer’s counsel, including the documents described in Section 3.02; and
(vik) Seller shall deliver the Leased Premises have furnished a certification of nonforeign status in vacantaccordance with Treasury Regulations Section 1.1445-2(b)(2)(iv), broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, or as specifically set forth in Schedule II)otherwise required by Law.
Appears in 1 contract
Sources: Stock Purchase Agreement (Photonic Products Group Inc)
Conditions to Buyer’s Obligations. Buyer’s obligation The obligations of Buyer to consummate the transactions contemplated hereby in connection with by this Agreement shall be subject to the fulfillment on or prior to the Closing is subject to satisfaction or waiver Date of each of the following conditions:
(a) Seller shall have delivered to Buyer the following documents on or prior to the Closing Date:
(i) a schedule setting forth Seller's good faith determination as to the Accounts Receivable as of the Closing Date (which shall reflect all credits due to Franchisees which are known to Seller as of the Closing Date);
(ii) an executed assignment and assumption agreement substantially in the form attached as Exhibit D hereto, assigning all of --------- Seller's rights and obligations under the Franchise Agreements to Buyer (the "Franchise Assignment and Assumption Agreement");
(iii) an executed assignment substantially in the form attached as Exhibit E hereto, assigning the Proprietary Rights to Buyer (the --------- "Proprietary Rights Assignment Agreement");
(iv) one or more executed bills of sale substantially in the form attached as Exhibit F hereto, conveying in the aggregate all of the --------- Acquired Assets (the "Bills of Sale"); and
(v) all other documents, certificates and instruments reasonably requested by counsel for Buyer or which are necessary to effect the transfer and assignment to Buyer of all right, title and interest in and to the Acquired Assets or to effectuate and carry out all of the provisions of this Agreement.
(b) All representations and warranties set forth made by Seller contained in Section 22.a) this Agreement shall have been be true and correct in all material respects on the date hereof and as of the Closing (except to the extent expressly made Date as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of though such representations and warranties to be so true were made as of the Closing Date, and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have duly performed and or complied with its covenants and agreements hereunder through all of the Closing in all material respects;
(iii) Seller’s title in and obligations to be performed or complied with by it under the Acquired Assets shall be good, valid and marketable and free terms of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding this Agreement on or prior to the Closing Date, .
(1c) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer Rentrak and Seller (the “Sale Order”), (A) approving this Agreement and all hereby waive any non-compete or other restrictions that would prevent Buyer from hiring former employees of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;Seller.
(vd) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) provided a copy of a payoff letter from ▇▇▇▇▇ Fargo indicating the total amount required to repay in full all obligations of Seller to ▇▇▇▇▇ Fargo, and Buyer shall deliver have received reasonable assurances from ▇▇▇▇▇ Fargo that upon payment at Closing of the Leased Premises $800,000 portion of the Purchase Price, Seller will have repaid in vacant, broom clean condition with full all FF&E, (including without limitation sums owed by it to ▇▇▇▇▇ Fargo and ▇▇▇▇▇ Fargo will release all of its security interests and liens against the Computer and Security Equipment, as specifically set forth in Schedule II)Acquired Assets.
Appears in 1 contract
Conditions to Buyer’s Obligations. BuyerThe Close of Escrow and ▇▇▇▇▇’s obligation to consummate the transactions transaction contemplated hereby in connection with the Closing is by this Agreement are subject to the satisfaction or waiver of the following conditions for Buyer’s benefit (or Buyer’s waiver thereof, it being agreed that Buyer may waive any or all of such conditions) on or prior to the Closing Date or on the dates designated below for the satisfaction of such conditions:
(ia) the All of Seller’s representations and warranties set forth in Section 22.a) contained herein shall have been be true and correct on in all material respects as of the date hereof of this Agreement and as of the Closing (except Date, subject to the extent expressly any qualifications hereafter made to any of Seller’s representations as of an earlier date, provided for in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinSection 11.1 hereof;
(iib) As of the Closing Date, Seller shall have performed its respective obligations hereunder and complied with its covenants and agreements hereunder through the Closing in all material respectsdeliveries to be made at Close of Escrow by Seller shall have been tendered;
(iiic) There shall exist no actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against Seller that would materially and adversely affect Seller’s title in and ability to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesperform its respective obligations under this Agreement;
(ivd) There shall exist no pending or threatened action, suit or proceeding with respect to Seller before or by any court or administrative agency which seeks to restrain or prohibit, or to obtain damages or a discovery order with respect to, this Agreement or the consummation of the transaction contemplated hereby or with respect to the extent that Seller becomes subject Property;
(e) Subject to a Chapter 11 Proceeding Section 4.4 above, no less than three (3) business days prior to the Closing Date, (1) the bankruptcy court Seller shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying delivered or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) caused to be delivered to Buyer Buyer, Tenant Estoppel Certificates complying with the provisions of Section 4.4 above;
(f) The Title Company is in a position to issue the Title Policy as required under Section 4.2.3;
(g) Seller shall have been deliveredobtained any water certificates required in connection with recording the Deed; and
(vih) Seller has obtained (i) a “Bulk Sales Stop Order” (the “State Notice”) from the Illinois Department of Revenue (the “State”) under the provisions of 35 ILCS 5/902d (the Illinois Income Tax Act) and 35 ILCS 120/5j (the Retailers Occupation Tax Act) (collectively, the “Acts”) and, if available, a full release (the “State Release”) of claims from the State with respect to all debts owed by Seller under the Acts effective for all periods prior to the date set forth therein. If the State Release is not available, Seller may, at its option (in its sole and absolute discretion), in satisfaction of this condition, hold back in escrow with Escrow Holder the amount to be withheld as disclosed in the State Notice until ▇▇▇▇▇▇ receives the State Release, at which time the Escrow Holder shall deliver be authorized to pay to Seller the Leased Premises entire amount, if any, withheld.
(ii) Seller has obtained a notice (the “County Notice”) from the Cook County Department of Revenue (the “County”) under the provisions of Section 34-92 of the Cook County Uniform Penalties, Interest and Procedures Ordinance (the “County Ordinance”) and, if available, a certificate (the “County Release”) from the County stating that all taxes, interest, penalties or nontax debts owed by Seller under the County Ordinance effective for all periods prior to the Closing Date have been paid in vacantfull. If the County Release is not available, broom clean condition Seller may, at its option (in its sole and absolute discretion), in satisfaction of this condition, hold back in escrow with Escrow Holder the amount to be withheld as disclosed in the County Notice until Seller receives the County Release, at which time the Escrow Holder shall be authorized to pay to Seller the entire amount, if any, withheld.
(iii) Seller has obtained a notice of withholding (the “City Notice”, and together with the State Notice and County Notice, collectively, the “Withholding Notices”) from the City of Chicago Department of Revenue (“City”, and together with the State and County, collectively, the “Departments”) under the provisions of Section 3-4-140 of the City of Chicago Municipal Code (together with all FF&Eapplicable codes and regulations pertaining thereto, the “City Code”) and, if available, the City's form of full release (the "City Release", and together with the State Release and County Release, collectively, the “Bulk Sales Releases”) of claims from the City stating that all taxes, interest, penalties or nontax debts owed by Seller effective for all periods prior to the Closing Date have been paid in full. If the City Release is not available, Seller may, at its option (in its sole and absolute discretion), in satisfaction of this condition, hold back in escrow with Escrow Holder the amount to be withheld as disclosed in the City Notice until Seller receives the City Release, at which time the Escrow Holder shall be authorized to pay to Seller the entire amount, if any, withheld.
(iv) Notwithstanding anything stated to the contrary in Section 7.1(h):
(1) If, on or before the Closing Date, (including without limitation a) Seller has received responses from the Computer Departments as contemplated above (whether a Bulk Sales Release or Withholding Notice), and Security Equipment(b) there exists one or more Withholding Notices disclosing amounts to withheld (the “Required Withholding Amount”) not exceeding Fifty Thousand Dollars ($50,000.00) in the aggregate, as specifically then Seller, in satisfaction of the applicable condition set forth in Schedule IISections 7.1(h)(i), (ii) and/or (iii) above, shall hold back in escrow with Escrow Holder the Required Withholding Amount until Seller receives the applicable Bulk Sales Release, at which time Escrow Holder shall be authorized to pay to Seller the amount that was withheld subject to the receipt of the applicable Bulk Sales Release.
(2) If the State Release has been obtained by Seller by the Closing Date, but the County Notice and/or City Notice has not yet been issued, then Seller, in satisfaction of the conditions set forth in Sections 7.1(h)(ii) and/or (iii) above, as applicable, shall indemnify, defend and hold Buyer harmless from any claims asserted by the County and/or City with respect to debts owed by Seller under the County Ordinance and/or City Code, as applicable, up to an amount not exceeding Fifty Thousand Dollars ($50,000.00) in the aggregate.
(3) If the State Notice has been issued by the Closing Date which discloses a withholding amount (the “State Withholding Amount”) not exceeding Fifty Thousand Dollars ($50,000.00), but both the County Notice and City Notice have not yet been issued, then Seller, in satisfaction of the conditions set forth in Sections 7.1(h)(i), (ii) and (iii) above, shall hold back in escrow with Escrow Holder an amount equal to (not to exceed $50,000.00 in the aggregate) twice the amount of the State Withholding Amount, until Seller receives the applicable Bulk Sales Release, at which time the Escrow Holder shall be authorized to pay to Seller the amount that was withheld subject to the receipt of the applicable Bulk Sales Release, until all such amounts withheld in escrow have been disbursed.
(4) For avoidance of doubt, notwithstanding anything stated to the contrary in this Section 7.1(h), in no event shall Seller’s indemnity and withholding obligations provided for under this Section 7.1(h) exceed Fifty Thousand Dollars ($50,000.00) in the aggregate, unless otherwise elected by Seller in its sole and absolute discretion. If, notwithstanding the nonsatisfaction of any such condition, the Close of Escrow occurs, there shall be no liability on the part of Seller for breaches of representations and warranties of which Buyer had actual knowledge (limited to the knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇▇) as of the Close of Escrow.
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Growth & Income REIT, Inc.)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing is subject to satisfaction or waiver the fulfillment of all of the following conditionsconditions on or prior to the Closing Date:
(i) the representations a. Each and warranties set forth in Section 22.a) every representation and warranty made by Seller and Guarantor shall have been true and correct when made and shall be true and correct as if originally made on the date hereof and as of the Closing (except Date.
b. All of Seller’s Deliveries shall have been delivered or made available for delivery to Buyer, conditioned only upon the extent expressly made as delivery to Seller of an earlier dateBuyer’s Deliveries, in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability all other obligations of Seller to consummate be performed hereunder through, and including on, the Closing Date shall have been performed.
c. No suit, proceeding or investigation shall have been commenced or threatened by any governmental authority or private person on any grounds to restrain, enjoin or hinder, or to seek damages on account of, the consummation of the transactions contemplated herein;hereby.
(ii) d. The Seller shall have performed executed and complied delivered to Buyer a certificate as to compliance with its covenants the conditions set forth in Sections 8.2(a), (b) and agreements hereunder through (c).
e. Seller shall have obtained consents of the Closing in all material respects;
(iii) Seller’s title in and non-Seller parties to the Acquired Assets shall be good, valid and marketable and free assignments of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (following Assigned Contracts: 1) The landlord Commerce Center I, LLC for the bankruptcy court existing space lease dated August 14, 2008; 2) The licensor ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ under the technology licensing agreement dated November 9, 2010; and 3) The licensor Hemitek, L.L.C. for the patent license agreement executed on September 5, 2002; and 4) the Processing Services Agreement between Sterigenics and Seller dated March 26, 2009.
f. The Seller shall have negotiated and entered an orderinto a replacement supply agreement with Indica Chemical, Inc. in a form substantially the same as the form attached hereto as Exhibit D.
g. The Seller shall have negotiated and substance satisfactory entered into an Amendment to Buyer the Technology License Agreement between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ and Seller (the “Sale Order”)▇▇▇▇▇ Medical, (A) approving this Agreement and all a division of the terms and conditions hereofPSC Industries, and (B) approving and authorizing Seller to consummate the transactions contemplated hereinInc. dated November 9, including the assumption and assignment of the Leases by Seller to Buyer2010, and (2) no order staying, reversing, modifying or amending the Sale Order which Amendment shall be substantially in effect on the Closing Date;
(v) each delivery contemplated by same form as the form attached hereto as Exhibit E. Buyer may waive any condition specified in this Section 11(a) 8.2 if it executes a writing so stating at or prior to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)Closing.
Appears in 1 contract
Conditions to Buyer’s Obligations. The Close of Escrow and Buyer’s obligation to consummate the transactions transaction contemplated hereby in connection with the Closing is by this Agreement are subject to the satisfaction or waiver of the following conditions for Buyer’s benefit (or Buyer’s written waiver thereof, it being agreed that Buyer may waive any or all of such conditions) on or prior to the Closing Date or on the dates designated below for the satisfaction of such conditions:
(ia) the All of Seller’s representations and warranties set forth in Section 22.a) contained herein shall have been be true and correct on in all material respects as of the date hereof Effective Date and as of the Closing (except Date, subject to the extent expressly any qualifications hereafter made to any of Seller’s representations as of an earlier date, provided for in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinSection 11.1 hereof;
(iib) As of the Closing Date, Seller shall have performed its obligations hereunder and complied with its covenants and agreements hereunder through all deliveries to be made at the Closing in all material respectsClose of Escrow by Seller shall have been tendered;
(iiic) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free As of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) Title Company has irrevocably committed to issue the bankruptcy court shall have entered an order, in a form and substance satisfactory Title Policy to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be as provided in effect on the Closing DateSection 4.2.3 above;
(vd) each delivery contemplated by Section 11(a) to The Property shall be delivered to Buyer shall have been deliveredfree and clear of any leases or other rights of occupancy or possession; and
(vie) As no time on or before the Closing Date shall a bankruptcy or dissolution event have occurred with respect to Seller. If, notwithstanding the nonsatisfaction of any such condition, the Close of Escrow occurs, there shall be no liability on the part of Seller shall deliver for breaches of representations and warranties of which Buyer had actual knowledge as of the Leased Premises in vacant, broom clean condition Close of Escrow and nevertheless elected to proceed with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)Close of Escrow.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Banc of California, Inc.)
Conditions to Buyer’s Obligations. Buyer’s The obligation of --------------------------------- Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction or waiver of the following conditionsconditions as of the Closing Date:
(ia) the The representations and warranties set forth in Section 22.a) Article IV ---------- and the BC Merger Agreement shall have been be true and correct on at and as of the date hereof and at and as of the Closing Date (without giving any effect to any update or amendment to the schedules hereto between the date of this Agreement and the Closing Date and without giving effect to any materiality or Material Adverse Effect qualifications contained therein) with the same force and effect as though made at and as of the Closing Date (except to the extent expressly any representation or warranty is made as of an earlier a particular date, in which case as of case, such date as if made representation or warranty shall be true and correct at and as of such particular date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect Material Adverse Effect;
(b) The Company and the Representative shall have performed in all respects all of the covenants, obligations and other agreements required to be performed or complied with by it under this Agreement and the BC Merger Agreement at or prior to the Closing, except where any failure to perform any covenant, obligation or agreement would not have a Material Adverse Effect;
(c) No Material Adverse Effect shall have occurred except as such relates to any matter in existence on the condition date hereof and to the extent set forth specifically on any schedule attached hereto (without giving effect to any update or amendment to such schedules between the date of Acquired Assets as a whole this Agreement and the Closing Date);
(d) Each of the material clearances, consents, waivers and approvals or other authorizations of Governmental Entities listed on the ability Authorization Schedule and marked with an asterisk shall have been obtained ---------------------- or satisfied and the applicable waiting periods, if any, under the HSR Act shall have expired or have been terminated, in each case, subject to Section 11.02; -------------
(e) No judgment, decree or order shall have been entered which would prevent the performance of Seller to consummate this Agreement or the consummation of any material part of the transactions contemplated hereinhereby, declare void or unlawful the transactions contemplated by this Agreement or cause such transactions to be rescinded;
(f) The Company shall have delivered to Buyer each of the following:
(i) a certificate of the Company in the form set forth in Exhibit D, dated the Closing Date, stating that the preconditions --------- specified in subsections (a) and (b) have been satisfied;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the payoff letters relating to the repayment of the Closing in all material respects;Indebtedness pursuant to Section 2.06(d); ---------------
(iii) Seller’s title in a copy of the Certificate of Formation of the Company certified by the Secretary of State of the State of Delaware and to the Acquired Assets shall be good, valid and marketable and free a certificate of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an ordergood standing from Delaware, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all each case dated within ten days of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(iv) certified copies of the resolutions duly adopted by the Company's Board of Managers authorizing its execution, delivery and performance of this Agreement and the other agreements contemplated hereby to which it is a party, and the consummation of all transactions contemplated hereby and thereby;
(v) certified copies of the resolutions duly adopted by holders of the Class A Units authorizing the Company to execute, deliver and perform this Agreement and the other agreements contemplated hereby to which it is a party, and the consummation of all transactions contemplated hereby and thereby;
(vi) each delivery contemplated of the agreements ("Closing Agreements") in ------------------ substantially the forms attached as Exhibit E, duly executed by Section 11(a) to be delivered --------- the parties thereto (other than Buyer and the Company), together with evidence reasonably satisfactory to Buyer shall that the amendments to the charter documents referenced in Exhibit E of the Closing Agreements have been deliveredduly made; and
(vivii) Seller an escrow agreement (the "Escrow Agreement"), in ---------------- substantially the form attached as Exhibit F, duly executed by the --------- Representative and the Escrow Agent; and
(g) The Company shall deliver have terminated those Contracts listed on the Leased Premises Terminated Contracts Schedule and the Company shall have delivered to ----------------------------- Buyer (i) where such Contract relates to the Closing Indebtedness, the payoff letter referred to in vacantSection 3.01(f)(ii); (ii) where such Contract ------------------- relates to the payment of money other than as contemplated by clause (i), broom clean condition a release (the "Release") in substantially the form attached as Exhibit G, ------- --------- duly executed by the counterparty to such Contract; and (iii) in all other cases, evidence reasonably satisfactory to Buyer that such Contract has been so terminated with effect from Closing and without penalty to the Company or any Subsidiary. If the Closing occurs, all FF&E, (including without limitation the Computer and Security Equipment, as specifically closing conditions set forth in Schedule II)this Section 3.01 which have not been fully satisfied as of the Closing ------------ shall be deemed to have been fully waived by Buyer.
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer▇▇▇▇▇’s obligation to consummate pay the transactions contemplated hereby in connection with Purchase Price, accept title to the Properties and proceed to Closing is on the terms and conditions of this Agreement shall be subject to satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in Section 22.a) shall have been true and correct conditions precedent on the date hereof and as of the Closing Date:
(except a) Seller shall deliver (or cause to be delivered) to Buyer or Title Insurer, as applicable, on or before the extent expressly Closing Date the documents set forth in Section 10(a) above;
(b) Each of the representations and warranties of Seller contained in this Agreement shall have been true when made and shall be true in all material respects at and as of an earlier date, in which case as of such date the Closing Date as if such representations and warranties were made at and as of such date), except where the failure of such representations Closing; and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;respects with all covenants, agreements and conditions required by this Agreement to be performed or complied with by Seller prior to or at the Closing;
(iiic) SellerBuyer shall receive from the Title Insurer an ALTA owner’s policy of title insurance for each Property with extended coverage, or irrevocable and unconditional binder to issue the same, with extended coverage for each Real Property in the amount of the applicable Allocated Purchase Price, dated, or updated to, no earlier than the date of the Closing, insuring, or committing to insure, at its ordinary premium rates, Buyer’s good and marketable title in and fee simple to the Acquired Assets Real Property and otherwise in such form approved by Buyer pursuant to Section 6 hereof and subject only to the Permitted Exceptions (collectively, the “Title Policy”); and
(d) From the Effective Date until Closing, no material adverse change shall have occurred (i) with respect to the Properties or (ii) with respect to the Seller Entities or the Tenant that would impact their ability to perform their respective obligations under this Agreement or the Sierra Lease. Buyer may at any time or times, at its election, waive any of the conditions to its obligations under this Agreement, but any such waiver shall be goodeffective only if contained in a writing signed by Buyer. If all of the above conditions have not been satisfied, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding or waived in writing by ▇▇▇▇▇, on or prior to the Closing Date, (1) the bankruptcy court then Buyer shall have entered an orderthe right to terminate this Agreement. Upon any such termination by Buyer pursuant to the foregoing sentence, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller ▇▇▇▇▇▇▇ Money shall be refunded to Buyer, Seller shall reimburse Buyer for the Buyer Expenses, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to thereafter neither Buyer nor Seller shall have been delivered; and
(vi) Seller shall deliver any further rights, obligations or liabilities hereunder, except as otherwise set forth herein. If the Leased Premises in vacant, broom clean failure of any condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically precedent to Buyer’s obligations set forth in Schedule IIthis Section 13 arises as a result of a default by Seller under this Agreement, Buyer shall also have the remedies available to Buyer in Section 9(b)..
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate pay each Allocated Purchase Price, accept title to each Property and proceed to Closing on the transactions contemplated hereby in connection terms and conditions of this Agreement shall be subject to compliance by Seller with the Closing is subject to satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in Section 22.a) shall have been true and correct conditions precedent on the date hereof and as of the Closing Date:
(except a) Intentionally Deleted;
(b) Seller shall deliver to Buyer on or before the extent expressly Closing Date the documents set forth in Section 10 above;
(c) Each of the representations and warranties of Seller contained in this Agreement shall have been true when made and shall be true in all material respects at and as of an earlier date, in which case as of such date the Closing Date as if such representations and warranties were made at and as of such date)the Closing, except where the failure of such representations and warranties Seller shall have performed and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be so true performed or complied with by Seller prior to or at the Closing;
(d) Buyer shall receive from the Title Insurer current ALTA 2006 owner’s forms of title insurance policies, or irrevocable and correct has unconditional binder to issue the same, with extended coverage for the Real Property in the amount of the applicable Allocated Purchase Price allocated to each Property, dated, or updated to, the date of the Closing, insuring, or committing to insure, at its ordinary premium rates, Buyer’s good and marketable title in fee simple to the Real Property and otherwise in such form and with such endorsements as provided in the title commitment approved by Buyer pursuant to Section 6 hereof and subject only to the Permitted Exceptions (the “Title Policy”); and
(e) On or before the date that is ten (10) days prior to the expiration of the Examination Period, Seller shall have delivered to Buyer estoppel certificates in the form provided by Buyer (and reasonably acceptable to Seller) from any parties to declarations or reciprocal and/or operating easement agreements affecting any Property (collectively, the “Estoppels”). The Estoppels shall not had and show any default by Seller or any information that would not be reasonably be expected to have a material adverse effect on the condition ownership, use, occupancy or maintenance of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinapplicable Properties;
(iif) Seller Tenant’s credit rating shall have performed be rated no lower than BBB+ by Standard and complied with its covenants and agreements hereunder through the Closing in all material respects;Poor’s; and
(iiig) Seller’s title Receipt of a Clearance Letter or establishment of a Tax Escrow (each as defined in and Section 28), or the passage of fourteen (14) business days after the Division (as defined in Section 28) receives the Tax Notification (as defined in Section 28) without the Division responding in writing thereto. Buyer may at any time or times, at its election, waive any of the conditions to the Acquired Assets its obligations under this Agreement but any such waiver shall be goodeffective only if contained in a writing signed by Buyer. If all of the above conditions have not been satisfied, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding or waived in writing by Buyer, on or prior to the Closing DateDate with respect to any Property, (1) the bankruptcy court then Buyer shall have entered an orderthe right to either (A) terminate this Agreement in its entirety, in a form and substance satisfactory upon such termination the E▇▇▇▇▇▇ Money shall be refunded to Buyer and thereafter neither Buyer nor Seller shall have any further rights, obligations or liabilities hereunder, except as otherwise set forth herein, or (B) terminate this Agreement solely as to the “Sale Order”applicable Properties with respect to which any such condition has not been satisfied or waived, in which event the applicable Allocated E▇▇▇▇▇▇ Money shall be refunded to Buyer, the Purchase Price shall be reduced by the applicable Allocated Purchase Price, and neither Buyer nor Seller shall have any further rights, obligations or liabilities hereunder with respect to such Properties except as otherwise set forth herein. If the failure of any condition precedent to Buyer’s obligations set forth in this Section 13 arises as a result of a material default by Seller under this Agreement, Buyer shall also have the remedies available to Buyer in Section 9(b)(ii) or Section 9(b)(iv), subject, however, to the provisions of Section 9(c) and Section 9(d). Anything to the contrary notwithstanding, (i) if Seller has not complied with the conditions in Section 13(d), or (e) on and as of the Closing Date, then Seller shall not be in default under this Agreement for the failure of any such conditions and Buyer’s sole right shall be as set forth in (B) above; and (ii) if Seller has not complied with the condition in Section 13(f) on and as of the Closing Date, then Seller shall not be in default under this Agreement for the failure of such condition and Buyer’s sole right shall be as set forth in (A) approving this Agreement above, unless Seller’s credit rating is lower than BBB – by Standard and all Poor’s as of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to , in which event Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises remedies available to Buyer in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule IISection 9(b)(ii).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Valley National Bancorp)
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate pay the transactions contemplated hereby in connection with Purchase Price, accept title to the Property and proceed to Closing is on the terms and conditions of this Agreement shall be subject to satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in Section 22.a) shall have been true and correct conditions precedent on the date hereof and as of the Closing Date:
(except a) Seller shall deliver to Buyer on or before the extent expressly Closing Date the documents set forth in Section 10 above;
(b) Each of the representations and warranties of Seller contained in this Agreement shall have been true when made and shall be true in all material respects at and as of an earlier date, in which case as of such date the Closing Date as if such representations and warranties were made at and as of such date)the Closing, except where the failure of such representations and warranties Seller shall have performed and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be so true performed or complied with by Seller prior to or at the Closing;
(c) Buyer shall receive from the Title Insurer a current ALTA owner’s title insurance policy, or irrevocable and correct has unconditional binder to issue the same, with extended coverage for the Real Property in the amount of the Purchase Price, dated, or updated to, no earlier than the date of the Closing, insuring, or committing to insure, at its ordinary premium rates, Buyer’s good and marketable title in fee simple to the Real Property and otherwise in such form approved by Buyer pursuant to Section 6 hereof and subject only to the Permitted Exceptions (the “Title Policy”);
(d) On or before the date that is ten (10) days prior to the expiration of the Examination Period, Seller shall have delivered to Buyer estoppel certificates in the form provided by Buyer (and reasonably acceptable to Seller) from any parties to declarations or reciprocal and/or operating easement agreements affecting the Property (collectively, the “Estoppels”). The Estoppels shall not had and show any default by Seller or any information that would not be reasonably be expected to have a material adverse effect on the condition ownership, use, occupancy or maintenance of Acquired Assets as a whole the Property;
(e) From the Effective Date until Closing, no material adverse change shall have occurred with respect to the Property or on the Tenant; and
(i) The ability of Seller the Title Insurer to consummate the Closing of the transactions contemplated herein;
by this Agreement on the Closing Date; (ii) the availability of the applicable governmental or regulatory offices to record the Closing Documents (as applicable); (iii) the availability of national banking institutions to process wires from Buyer or Buyer’s lender to fund the Purchase Price; and (iv) no other condition existing as a result of a pandemic that prevents the Closing from occurring; provided, however, in the event this condition to Closing is not satisfied, (A) Buyer shall have the right, in its sole discretion, to extend the Closing Date, upon written notice to Seller, one or more times, from time to time, up to a maximum extension by Buyer pursuant to this Section 13(f) of sixty (60) days; and (B) Seller shall have performed and complied with the right, in its covenants and agreements hereunder through sole discretion, to extend the Closing in all material respects;
Date, upon written notice to Buyer, one or more times, from time to time, up to a maximum extension by Seller pursuant to this Section 13(f) of fifteen (iii15) days. Buyer’s and Seller’s title in and extension rights pursuant to the Acquired Assets preceding sentence shall be goodconcurrent, valid and marketable and free of all liens and encumbrances;
(iv) not consecutive, such that the maximum overall extension pursuant to the extent that Seller becomes subject preceding sentence shall be sixty (60) days (not seventy-five (75) days). Buyer may at any time or times, at its election, waive any of the conditions to its obligations under this Agreement but any such waiver shall be effective only if contained in a Chapter 11 Proceeding writing signed by Buyer. If all of the above conditions have not been satisfied, or waived in writing by Buyer, on or prior to the Closing Date, (1) the bankruptcy court then Buyer shall have entered an orderthe right to terminate this Agreement in its entirety, in a form and substance satisfactory upon such termination the ▇▇▇▇▇▇▇ Money shall be refunded to Buyer and thereafter neither Buyer nor Seller (shall have any further rights, obligations or liabilities hereunder, except as otherwise set forth herein. If the “Sale Order”), (A) approving this Agreement and all failure of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller any condition precedent to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically ’s obligations set forth in Schedule IIthis Section 13 arises as a result of a default by Seller under this Agreement, Buyer shall also have the remedies available to Buyer in Section 9(b).
Appears in 1 contract
Sources: Agreement for Purchase and Sale of Real Property (Big Lots Inc)
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate the transactions contemplated hereby in connection with purchase of the Closing Acquired Assets and the assumption of the Assumed Liabilities is subject to satisfaction or waiver by Buyer of the following conditions:
(i) the The representations and warranties of Sellers set forth in Section 22.a3.1, Section 3.2, Section 3.4(a) and Section 3.9 (the “Seller Fundamental Representations”) shall have been be true and correct on in all respects as of the date hereof and as of the Closing (except to the extent expressly made Date, as of an earlier date, in which case as of such date as if though made at and as of the Closing Date, except to the extent any such dateSeller Fundamental Representations expressly relate to an earlier time (in which case such Seller Fundamental Representations shall be true and correct in all respects at and as of such earlier time), and (ii) all representations and warranties of the Sellers in this Agreement (other than the Seller Fundamental Representations) shall be true and correct, without regard to any qualifications as to “material”, “materiality”, or “Material Adverse Effect” (or any correlative terms), as of the date hereof and as of the Closing Date, as though made at and as of the Closing Date, except to the extent such representations and warranties expressly relate to an earlier time (in which case such representations and warranties shall be true and correct at and as of such earlier time), except where the failure of such representations and warranties to be so true and correct has not had had, and would not reasonably be expected to have have, individually or in the aggregate, a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinMaterial Adverse Effect;
(iib) Seller Sellers shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respectsrespects with the obligations and covenants required by this Agreement to be performed or complied with by Sellers at or prior to the Closing;
(iiic) Seller’s title Buyer shall have received a certificate, dated as of the Closing Date and executed by an executive officer authorized to sign on behalf of the Sellers, stating that the conditions specified in Section 7.1(a), and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesSection 7.1(b) have been satisfied;
(ivd) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court The Bankruptcy Court shall have entered an order, in a form the Sale Order and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(ve) each No material Decree shall be in effect that prohibits consummation of the transactions contemplated by this Agreement; and
(f) Each delivery contemplated by Section 11(a2.5(b) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II).
Appears in 1 contract
Sources: Asset Purchase Agreement (Christopher & Banks Corp)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction or waiver of the following conditionsconditions as of the Closing Date:
(ia) the The representations and warranties set forth in Section 22.a) Article III and Article IV (other than those representations and warranties that address matters as of particular dates which shall have been remain true and correct on the date hereof as of such dates) shall be true and correct as of the Closing (except to the extent expressly Date as though then made as of an earlier date, in which case as of such date as if made at and as though the Closing Date were substituted for the date of this Agreement throughout such date)representations and warranties (without giving effect to materiality, Material Adverse Effect, or similar phrases in the representations and warranties) except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to not, in the aggregate, have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinMaterial Adverse Effect;
(iib) The Company and Seller shall have performed and complied with its in all material respects all of the covenants and agreements hereunder through required to be performed or complied with by them under this Agreement at or prior to the Closing;
(c) Reserved;
(d) No judgment, decree or order shall have been entered which would prevent the performance of this Agreement or the consummation of any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement or cause such transactions to be rescinded;
(e) Reserved;
(f) The Company or Seller, as the case may be, shall have delivered to Buyer each of the following:
(i) a certificate of the Company in the form set forth in Exhibit A, dated the Closing Date, stating that the preconditions specified in all material respectssubsections (a), (b) and (d), as they relate to the Company, have been satisfied;
(ii) a certificate of Seller in the form of Exhibit B, dated the Closing Date, stating that the preconditions specified in subsections (a), (b), and (d), as they relate to Seller, have been satisfied;
(iii) Seller’s title the stock certificates representing the Shares, in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbranceseach case duly endorsed for transfer or accompanied by duly executed stock powers or transfer documents;
(iv) all minute books, stock books, ledgers and registers, corporate seals, if any, and other corporate records relating to the extent that organization, ownership and maintenance of the Company, if not already located on the premises of the Company;
(v) resignations effective as of the Closing Date from such officers and directors of the Company as Buyer shall have requested in writing and delivered to Seller becomes subject to a Chapter 11 Proceeding not less than five days prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(vvi) a copy of the certificate of incorporation of the Company, certified by the Secretary of State of Delaware and a certificate of good standing from Delaware and each jurisdiction in which it is duly qualified to transact business, in each case, dated within ten days of the Closing Date;
(vii) certified copies of the resolutions duly adopted by the Company’s board of directors authorizing its execution, delivery and performance of this Agreement and the other agreements to which it is a party;
(viii) certified copies of the resolutions duly adopted by Seller’s board of directors authorizing its execution, delivery and performance of this Agreement and the other agreements to which it is a party;
(ix) a certified copy of the Company’s by-laws, with all amendments thereto;
(x) a certificate, duly completed and executed pursuant to Section 1.1445-2(b)(iv)(B) of the Treasury Regulations, issued by Seller certifying that Seller is not a foreign person within the meaning of Section 1445 of the Code;
(xi) evidence reasonably satisfactory to Buyer that all of the Company’s transaction costs, including out-of-pocket legal, accounting, investment banking and other expenses, including those in connection with the preparation, negotiation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, and all other such costs or expenses incidental to this Agreement and the transactions contemplated by Section 11(athis Agreement have been fully discharged prior to Closing, or such indebtedness shall be discharged at Closing out of the Closing Purchase Price;
(xii) evidence reasonably satisfactory to Buyer that the Company shall have discharged all of the Company’s indebtedness for borrowed money prior to Closing or that such indebtedness shall be discharged at Closing out of the Closing Purchase Price to be delivered to Buyer shall have been deliveredreceived hereunder; and
(vixiii) Seller UCC-3 termination statements or other evidence reasonably satisfactory to Buyer that Silicon Valley Bank has released each lien, security interest or other encumbrance on the Company assets.
(g) No federal, state, local or foreign law, statute, rule, regulation, executive order, decree, ruling, judgment, injunction, legal requirement, or other order (whether temporary, preliminary or permanent) shall deliver have been enacted, entered, promulgated or enforced by any Governmental Entity which prohibits, restrains or enjoins the Leased Premises in vacantconsummation of the transaction contemplated hereby; there shall be no pending suit, broom clean condition action or proceeding by any Governmental Entity seeking to restrain or prohibit the making or consummation of the transaction contemplated hereby or seeking to obtain material damages with all FF&E, (including without limitation respect thereto; and there shall be no failure of the Computer and Security Equipment, as specifically conditions set forth in Schedule IISection 7.1(b) or Section 7.2(e) of the Merger Agreement (unless each such failure has been waived by all necessary parties).
(h) Buyer shall have received commitments to provide debt financing in an amount not less than $26 million on commercially reasonable terms and conditions;
(i) The transactions contemplated by that certain Agreement and Plan of Merger (the “Merger Agreement”), dated as of May 14, 2007, by and among ▇▇▇▇▇▇▇ Education, Inc., Epsilon Acquisition Corp. and ▇▇▇▇▇▇▇▇.▇▇▇ shall have been consummated or shall be consummated simultaneously with the Closing; and
(j) There shall not have occurred a Material Adverse Effect. If the Closing occurs, all closing conditions set forth in this Section 2.01 which have not been fully satisfied as of the Closing shall be deemed to have been fully waived by Buyer.
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s obligation The obligations of Buyer and Purchaser to consummate the transactions contemplated hereby in connection with effect the Closing is shall be subject to satisfaction or waiver of the following conditionsadditional conditions which may be waived in writing by Buyer:
(ia) the The representations and warranties set forth of Sellers contained in Section 22.a) this Agreement shall have been be true and correct on the date hereof and in all material respects as of the date of this Agreement and on the Closing (except to Date with the extent expressly made same effect as of an earlier date, in which case as of such date as if though made at such time; Sellers and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller Bank shall have performed all obligations and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in respects with all covenants and conditions required by this Agreement to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding performed or complied with by them at or prior to the Closing Date, (1) the bankruptcy court ; and Sellers and Bank shall have entered an order, in a form and substance satisfactory delivered to Buyer and Seller Purchaser a certificate dated the Closing Date and signed in their respective names and on their respective behalf by their respective chief executive officer and principal financial officer to the foregoing effect to the best knowledge of such officers;
(b) Opinions of O'Melveny & ▇▇▇▇▇, counsel to Sellers and Bank, and of Sellers' in-house counsel, covering the “Sale Order”)matters contemplated by Exhibit C-1 and C-2, respectively, shall have been delivered to Buyer;
(Ac) approving During the period from the date of this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date, there shall not have been any material adverse change in Bank and the Bank Subsidiaries taken as a whole, or any injunctions, orders, judgments or decrees which are material to Bank and the Bank Subsidiaries taken as a whole and Buyer shall have received a certificate dated the Closing Date signed by the chief executive officer and the chief financial officer of Bank attesting to such fact to the best knowledge of such officers;
(vd) each delivery contemplated by Section 11(aIn connection with any Requisite Regulatory Approvals, no Buyer's Burdensome Conditions shall be imposed.
(e) to be Bank shall have duly authorized, executed, and delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation Purchaser the Computer and Security Equipment, ▇▇▇▇ of Sale dated as specifically set forth in Schedule II)of the Closing Date.
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer under this Agreement to consummate purchase the transactions contemplated hereby in connection with Properties from Sellers and the Closing Fort Washington Interest from Parent is subject to the satisfaction or waiver at Closing of each of the following conditions, any one of which may be waived in whole or in part by Buyer in writing at or prior to Closing:
(ia) All of the representations and warranties by Sellers and Parent set forth in Section 22.a) this Agreement shall have been be true and correct on the date hereof at and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of though such date as if representations and warranties were made at and as of such date)Closing, except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject any inaccuracy would not have a Material Adverse Effect on a Property or the Fort Washington Interest or Sellers’ or Parent’s ability to perform their respective obligations hereunder, and Sellers and Parent shall have performed, observed and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed on its part prior to or as of Closing, except to the extent that any failure to do so would not have a Chapter 11 Proceeding Material Adverse Effect or materially impair Sellers’ or Parent’s ability to perform their respective obligations hereunder.
(b) Not less than thirty (30) days prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller Date (the “Sale OrderEstoppel Delivery Date”), (A) approving this Agreement and all each Seller shall deliver to Buyer a duly executed, original, “clean” Estoppel Certificate from each of the terms and conditions hereofTenants occupying rentable building space in such Seller’s Property. At Buyer’s option, Seller shall initially utilize the estoppel form required by Buyer’s lender; provided, however, that if any of the Tenants refuse to execute such form, Seller shall obtain Estoppel Certificates in the form required under each of the Tenants’ respective Lease or, in the event there shall be no such form, in substantially the form attached hereto as Exhibit H. The Closing Date shall be extended one day for each day after the Estoppel Delivery Date that any Estoppel Certificate remains undelivered; provided, however, that the Closing Date shall not be extended past the Termination Date. As a condition to Closing, Sellers shall also be required to obtain from each Tenant a subordination, non-disturbance, and (Battornment agreement reasonably acceptable to Buyer’s lender. This Section 10.1(b) approving and authorizing Seller shall also apply to consummate Parent with respect to the transactions contemplated herein, including the assumption and assignment Tenant of the Leases property owned by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;Fort Washington Limited Partnership.
(vc) each delivery contemplated by Section 11(a) to be delivered to Buyer No assessments or charges for any public improvements shall have been delivered; andmade against the Properties after the expiration of the Due Diligence Period but prior to Closing which remain unpaid, no improvements to the Properties or any roads or facilities abutting the Properties shall have been made or ordered for which a lien, assessment or charge can be filed or made, except to the extent that the foregoing would not have a Material Adverse Effect on the Properties.
(vid) Sellers shall not have received any written notice after the expiration of the Due Diligence Period but before Closing from any insurance company which has issued a policy with respect to any Property or by any board of fire underwriters (or other body exercising similar functions) claiming any material defects or deficiencies or requesting the performance of any repairs, alterations or other work (in all instances costing in excess of Fifty Thousand Dollars ($50,000.00) or in excess of Ten Thousand Dollars ($10,000.00) with respect to any fire protection matters), and the applicable Seller will promptly notify Buyer of any such notice or requirement if such notice is received at any time prior to Closing. If a Seller shall deliver have received such a notice, Seller shall have a reasonable opportunity to cure any such defect or deficiency or perform such work, and the Leased Premises Closing Date for the Property in vacantquestion shall be extended to the extent reasonably necessary for Seller to do so.
(e) Sellers shall have fee simple title subject to the Permitted Exceptions to the Properties as required by this Agreement. Parent shall have good and marketable title to the Fort Washington Interest, broom clean condition with free and clear of Liens.
(f) Sellers shall have given the notices to Tenants required to fulfill any options or rights of first refusal to purchase any of the Properties subject to a Lease and a waiver of such rights by the tenant, either by written waiver or the failure of the Tenants to exercise said rights. With respect to each Property and the Fort Washington Interest, unless all FF&Ethe foregoing conditions contained in this Section 10.1 are satisfied within the time period specified, or if no time period is specified, prior to or at Closing, Buyer, at its election, may, either (i) extend the Closing Date for a period up to thirty (30) days until such conditions are satisfied, (including without limitation ii) waive in writing the Computer and Security Equipmentsatisfaction of any such conditions, in which event this Agreement shall be read with respect to such Property or the Fort Washington Interest as specifically set forth if such conditions no longer existed, or (iii) terminate this Agreement in Schedule IIaccordance with Section 13.1(c)(ii).
Appears in 1 contract
Sources: Contract of Purchase and Sale (Arc Corporate Realty Trust Inc)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction or (or, to the extent permitted by applicable Law, the waiver by Buyer in writing) of the following conditionsconditions as of the Closing Date:
(ia) the representations and warranties set forth in Section 22.a) Articles IV and V (other than those representations and warranties that address matters as of a particular date, which shall have been be true and correct on as of such particular date) shall be true and correct (without giving effect to any “material,” “materiality,” or “Material Adverse Effect” qualifications contained herein) at and as of the date hereof of this Agreement and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date)Date, except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to to, individually or in the aggregate, have a Material Adverse Effect;
(b) the Company and Seller shall have performed in all material adverse effect on respects all of the condition covenants and agreements required to be performed by them under this Agreement at or prior to the Closing;
(c) there shall not have occurred since the Most Recent Balance Sheet Date any event, change, condition, circumstance or state of Acquired Assets as facts that has had or would reasonably be expected to have, individually or in the aggregate, a whole Material Adverse Effect;
(d) no proceeding challenging or on the ability seeking to restrain or prohibit any of Seller to consummate the transactions contemplated hereinby this Agreement shall have been commenced by any Governmental Authority or any Person who is not a Party or an Affiliate thereof for the purpose of obtaining any order, decree, injunction, restraint or prohibition and be pending;
(e) Buyer shall have received payoff letters in customary form relating to the repayment of the Indebtedness as of the Closing Date together with UCC-3 termination statements and other terminations or releases necessary to terminate or release, as the case may be, all Liens relating to such Indebtedness and otherwise relating to the Company’s properties and assets (other than Permitted Liens);
(f) Seller shall have executed and delivered to Buyer a counterpart signature page to the Transitional Trademark License Agreement;
(g) Seller shall have executed and delivered to Buyer a counterpart signature page to the Transition Services Agreement; and
(h) Seller shall have delivered to Buyer each of the following:
(i) the certificate(s) representing the Securities, if any, in each case duly endorsed for transfer or accompanied by duly executed unit powers or similar transfer documents;
(ii) Seller resignations effective as of the Closing Date from all non-Business Employee officers of the Company as Buyer shall have performed requested in writing and complied with its covenants and agreements hereunder through delivered to Seller not less than three Business Days prior to the Closing in all material respectsDate;
(iii) Seller’s title evidence that all Intercompany Obligations owed by the Company has been repaid or otherwise extinguished in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesfull;
(iv) to a copy of each of the extent that Seller becomes subject to a Chapter 11 Proceeding prior to certificate of formation and the Closing Datecertificate of good standing of the Company, (1) certified by the bankruptcy court shall have entered an orderSecretary of State of the State of Delaware, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”)each case, (A) approving this Agreement and all dated within ten days of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery a certificate dated the Closing Date duly executed by an authorized officer of the Company (A) certifying as to an attached copy of the resolutions duly adopted by Seller as the managing member of the Company authorizing the Company to execute, deliver and perform this Agreement and the other agreements contemplated by hereby and to consummate all of the transactions contemplated hereby and thereby and stating that such resolutions have not been amended, modified, revoked or rescinded, and (B) stating that the conditions specified in subsections (a) and (b) of this Section 11(a) to be delivered to Buyer shall 3.2 have been deliveredsatisfied; and
(vi) a certificate, in form and substance as required under Section 1445(b)(2) of the Code and the Treasury Regulations thereunder, stating that Seller shall deliver is not a foreign person (as such term is defined in the Leased Premises in vacantCode). If the Closing occurs, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically closing conditions set forth in Schedule II)this Section 3.2 which have not been fully satisfied as of the Closing shall be deemed to have been fully and irrevocably waived by Buyer.
Appears in 1 contract
Conditions to Buyer’s Obligations. All of Buyer’s obligations hereunder (including, without limitation, Buyer’s obligation to pay the Purchase Price, to accept title to the Property and to consummate the transactions contemplated hereby in connection with Closing) are expressly conditioned on the satisfaction at or before the time of Closing is subject to satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in Section 22.a) shall have been true and correct on the date hereof and conditions precedent being fully satisfied as of the Closing (any one or more of which may be waived in writing in whole or in part by Buyer, at Buyer’s option):
(a) At Closing, Seller shall deliver possession of the Property to Buyer free and clear of all tenancies and other occupancies except for the Master Lease and the applicable Operating Sublease;
(b) Seller shall deliver to Buyer on or before the Closing the items set forth in Section 10 above that Seller is obligated to deliver;
(c) Buyer shall receive from the Title Insurer or any other title insurer approved by Buyer in its judgment and discretion, a current ALTA owner’s form of title insurance policy, or irrevocable and unconditional binder to issue the same, with extended coverage for the Real Property in the amount of the Purchase Price allocated pursuant to Exhibit A, dated, or updated to, the date of the Closing, insuring, or committing to insure, at its ordinary premium rates Buyer’s good and marketable title in fee simple to the Real Property and otherwise in such form and with such endorsements as provided in the title commitment approved by Buyer pursuant to Section 6 hereof and subject only to the Permitted Exceptions;
(d) The Real Property and Improvements shall have a valid, permanent and unconditional certificate of occupancy (or the equivalent thereof) for each location (to the extent expressly required by applicable law), and Buyer shall have received a copy of such certificate;
(e) The representations and warranties of Seller contained in this Agreement shall have been true when made and shall be true in all material respects at and as of an earlier date, in which case as the date of such date Closing as if such representations and warranties were made at and as of such date)the Closing, except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respectsrespects with all covenants, agreements and conditions required by this Agreement to be performed or complied with by Seller prior to or at the Closing.
(f) Each Operational Subtenant shall be in possession of the premises demised under the Operational Subleases, open for business to the public and paying full and unabated rent under the Operational Subleases;
(iiig) Seller’s title in Between the date hereof and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, there shall have been no material adverse change in the financial or physical condition of the Property or the business operated thereon; and
(1h) The municipality in which the Property is located issues all certificates, permits and inspection and other approvals that may be required as a condition to the transfer of the Property to Buyer. If any of the foregoing conditions precedent have not been satisfied as of Closing, Buyer may either: (i) waive any unsatisfied conditions and proceed to Closing in accordance with the terms and provisions hereof with no deduction from or adjustment of the Purchase Price except for (a) adjustment equal to the amount required to satisfy and discharge of record at or before Closing of any and all lien, judgment or other encumbrance which can be removed by the payment of a fixed and ascertainable amount together with interest and penalties thereon, if any, and together with any additional title insurance costs or premiums imposed by Title Insurer by reason thereof, and (b) the bankruptcy court cost of curing any failed condition precedent to the extent reducible to a liquidated sum; (ii) terminate this Agreement by delivering written notice thereof to Seller no later than Closing, upon which termination the ▇▇▇▇▇▇▇ Money shall have entered an order, in a form and substance satisfactory be refunded to Buyer and Seller (the “Sale Order”)shall reimburse Buyer for all title insurance company charges, (A) approving this Agreement survey charges, attorneys’ fees and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate other out-of-pocket costs incurred in connection with the transactions contemplated hereinby this Agreement, including the assumption all obligations, liabilities and assignment rights of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order parties under this Agreement shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)terminate.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing is by this Agreement will be subject to the satisfaction or waiver of the following conditions, any of which may be waived by Buyer:
(a) The representations and warranties made by Seller in this Agreement are true and correct as of the Closing Date, except for (i) representations and warranties made as of a specified date, which will be true and correct in all material respects as of the specified date, and (ii) breaches and inaccuracies that do not have, individually or in the aggregate, a Material Adverse Effect;
(b) Seller has performed and complied with all covenants and agreements required by this Agreement to be performed by Seller prior to or at the Closing, except for breaches that do not have, individually or in the aggregate, a Material Adverse Effect;
(c) Seller has delivered to Buyer the documents required by Section 6.2;
(d) Seller has delivered to Buyer the Transition Services Agreement, substantially in the form attached hereto as Exhibit C.
(e) If applicable, all waiting periods under the HSR Act have expired or been terminated;
(f) No Order is in effect forbidding or enjoining the consummation of the transactions contemplated hereby;
(g) Seller, or an Affiliate of Seller, and the Company shall have entered into a Lease Agreement substantially in the forms attached hereto as Exhibit D, pursuant to which Seller or such Affiliate will lease to the Company the real property and improvements currently used by the Company in La Mirada, California, Sacramento, California and San Leandro, California, each for a period of three years from the Closing Date (collectively, the "LEASE AGREEMENTS");
(h) Since the date hereof to the Closing, no event or circumstance has occurred that has had a Material Adverse Effect;
(i) The guarantee by the representations and warranties set forth in Section 22.a) shall have Company of Seller's Credit Agreement dated June 12, 1998 has been true and correct on the date hereof and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been deliveredreleased; and
(vij) Seller shall deliver has delivered to Buyer the Leased Premises Technology License and Transfer Agreement, substantially in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, form attached hereto as specifically set forth in Schedule II).Exhibit E.
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s 's obligation to consummate make the transactions contemplated hereby in connection with --------------------------------- deliveries required of Buyer at the Closing is shall be subject to the satisfaction or waiver by Buyer of each of the following conditions:
(i) the 4.2.1 All representations and warranties set forth in Section 22.a) of Seller contained herein shall have been continue to be true and correct on the date hereof and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respects;
(iii) Seller’s title in , all covenants and obligations to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) to the extent that performed by Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Dateshall have been performed in all material respects and Seller shall have certified the foregoing to Buyer in writing.
4.2.2 Seller shall have executed and delivered to Buyer the Working Capital Escrow Agreement, (1) the bankruptcy court Assignment Agreement, the ▇▇▇▇ of Sale, the Intangible Property ▇▇▇▇ of Sale and each other document reasonably requested by Buyer pursuant to Section 1.3.
4.2.3 All applicable waiting periods relating to the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired or been terminated and any proceedings that may have been filed or instituted thereunder shall have been satisfactorily concluded.
4.2.4 No action, suit or other proceedings shall be pending before any court, tribunal or governmental authority seeking or threatening to restrain or prohibit the consummation of the transactions contemplated by this Agreement, or seeking to obtain substantial damages in respect thereof, or involving a claim that consummation thereof would result in the violation of any law, decree or regulation of any governmental authority having appropriate jurisdiction.
4.2.5 The Bankruptcy Court shall have entered an order, the Procedure Order in a form accordance with Section 8.4.1 below and substance satisfactory to Buyer the Approval Order in accordance with Section 8.4.2 below and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Approval Order shall be in effect on not have been stayed, modified, terminated or rescinded as of the Closing Date;.
(v) each delivery 4.2.6 The transactions contemplated by Section 11(a) to be delivered to Buyer this Agreement shall have been delivered; and
(vi) Seller shall deliver consummated by the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)Outside Date.
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s obligation The obligations of Buyer to consummate the transactions contemplated hereby in connection with the Closing is Transaction shall be subject to the satisfaction or waiver of each of the following conditions, any of which may be waived in writing by Buyer:
(i) For purposes of this Section 6.2(i), the accuracy of the representations and warranties of the Old Mutual Parties set forth in this Agreement shall be assessed as of the date of this Agreement and shall be assessed as of the Closing Date with the same effect as though all such representations and warranties had been made again on and as of the Closing Date (provided that the accuracy of the representations and warranties that speak as of a specific date shall be assessed only as of such date). The representations and warranties set forth in Sections 2.3(a), 2.5, 3.1 and 3.3(a), shall be true and correct. The representations and warranties of the Old Mutual Parties set forth in Articles II, III and VIII of this Agreement (other than the representations and warranties set forth in Section 22.aSections 2.3(a), 2.5, 3.1 and 3.3(a)) shall have been be true and correct on except for such inaccuracies which do not, and are not reasonably likely to, individually or in the date hereof and as aggregate, result in a Company Material Adverse Effect; provided that for purposes of the Closing (except to the extent expressly made as of an earlier datethis sentence, in which case as of such date as if made at and as of such date), except where the failure of such those representations and warranties that are qualified by references to "material," "Company Material Adverse Effect" or variations thereof shall be so true and correct has deemed not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereininclude such qualifications;
(ii) Seller Each of the Old Mutual Parties, as applicable, shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respectsrespects with all agreements, covenants, obligations and conditions required by this Agreement to be performed or complied with by them at or prior to the Closing;
(iii) Seller’s title The Old Mutual Parties shall have delivered to Buyer a certificate, dated as of the Closing Date signed on behalf of the Company by its Chief Executive Officer and signed on behalf of Holdings by an appropriate senior officer thereof confirming the satisfaction of the conditions contained in paragraphs (i) and to the Acquired Assets shall be good, valid and marketable and free (ii) of all liens and encumbrancesthis Section 6.2;
(iv) to No employee of the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1Company listed on Exhibit 6.2(iv) the bankruptcy court who has entered into an Employment Agreement shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereofrepudiated his Employment Agreement, and (B) approving and authorizing Seller died or become permanently disabled or (C) taken or failed to consummate take any action that would constitute "Cause" under his Employment Agreement had such action been taken immediately following the transactions contemplated herein, including the assumption and assignment effective time of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Datesuch Employment Agreement;
(vi) each delivery contemplated by Section 11(aThe Closing Wrap Account Revenue Run-Rate shall not be less than 90% of the Base Wrap Account Revenue Run-Rate; and (ii) to the Closing Other Account Revenue Run-Rate shall not be delivered to Buyer shall have been delivered; andless than 70% of the Base Other Account Revenue Run Rate;
(vi) Seller Buyer shall deliver have received an opinion dated the Leased Premises Closing Date of Weil, Gotshal & Manges LLP, counsel to Holdings, substantially in vacantthe form attach▇▇ ▇▇▇eto as Exhibit B; and The board of trustees of PBHG Funds shall have considered and shall have taken action upon the approval of the Interim Sub-Advisory Agreement, broom clean condition with all FF&E, (including without limitation the Computer Permanent Sub-Advisory Agreement and Security Equipment, as specifically set forth in Schedule II)the PBF Reorganization.
Appears in 1 contract
Conditions to Buyer’s Obligations. The Close of Escrow and Buyer’s obligation to consummate the transactions transaction contemplated hereby in connection with the Closing is by this Agreement are subject to the satisfaction or waiver of the following conditions for Buyer’s benefit (or Buyer’s waiver thereof, it being agreed that Buyer may waive any or all of such conditions) on or prior to the Closing Date or on the dates designated below for the satisfaction of such conditions:
(ia) the All of Seller’s representations and warranties set forth in Section 22.a) contained herein shall have been be true and correct on in all material respects as of the date hereof of this Agreement and as of the Closing (except Date, subject to the extent expressly any qualifications hereafter made to any of Seller’s representations as of an earlier date, provided for in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinSection 11.1 hereof;
(iib) As of the Closing Date, Seller shall have performed its respective obligations hereunder and complied with its covenants and agreements hereunder through the Closing in all material respectsdeliveries to be made at Close of Escrow by Seller shall have been tendered;
(iiic) There shall exist no actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against Seller that would materially and adversely affect Seller’s title in and ability to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesperform its respective obligations under this Agreement;
(ivd) There shall exist no pending or threatened action, suit or proceeding with respect to Seller before or by any court or administrative agency which seeks to restrain or prohibit, or to obtain damages or a discovery order with respect to, this Agreement or the consummation of the transaction contemplated hereby or with respect to the extent that Seller becomes subject Property;
(e) Subject to a Chapter 11 Proceeding Section 4.4 above, no less than three (3) business days prior to the Closing Date, (1) the bankruptcy court Seller shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying delivered or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) caused to be delivered to Buyer shall have been deliveredBuyer, Tenant Estoppel Certificates complying with the provisions of Section 4.4 above; and
(vif) The Title Company is in a position to issue the Title Policy as required under Section 4.2.3. If, notwithstanding the nonsatisfaction of any such condition, the Close of Escrow occurs, there shall be no liability on the part of Seller shall deliver for breaches of representations and warranties of which Buyer had actual knowledge (limited to the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation knowledge of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇) as of the Computer and Security Equipment, as specifically set forth in Schedule II)Close of Escrow.
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Real Estate Investment Trust, Inc.)
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate the transactions contemplated hereby in connection with the Closing is The obligations of Buyer under this Agreement are subject to the satisfaction or waiver of the following conditionsconditions on or prior to the Closing Date, all or any of which may be waived in writing by Buyer:
(ia) the All representations and warranties set forth made by Sellers and the Signatory Owners in Section 22.a) this Agreement and in any written statements delivered to Buyer under this Agreement shall have been be true and correct on in all material respects as of the date hereof and as of the Closing (Date as though made on such dates, except to the extent expressly made as that (i) Buyer provided Sellers after the date hereof with a written consent to the taking of an earlier date, in the action which case as of such date as if made at and as of such date), except where caused the failure of such representations and warranties representation or warranty to cease to be so true and correct has in all material respects or (ii) the change which renders such representation and warranty not had true and would correct is not reasonably adverse in any respect to Buyer, any Facility or the Assets.
(b) Sellers and Signatory Owners shall have performed, satisfied and complied with all obligations and covenants required by this Agreement to be expected performed or complied with by them on or prior to the Closing Date.
(c) There shall not have a material adverse effect on the condition of Acquired Assets as a whole occurred any Seller Material Adverse Effect or on the ability of Seller Buyer Material Adverse Effect.
(d) No suit, action or proceeding shall be pending or threatened by any third party or by or before any Governmental Authority in which it is sought to consummate restrain or prohibit or to obtain damages or other relief in connection with this Agreement or the transactions contemplated hereinthereby.
(e) The Title Company or, as applicable the Sellers’ Title Company, shall have issued the Title Insurance, insuring Buyer’s title to all of the Real Property, in accordance with the requirements of Section 1.11 hereof over all Title Objections other than those that have been cured to Buyer’s satisfaction.
(f) Sellers and the Signatory Owners shall have delivered to Buyer all documents required to be delivered by them, and all such documents shall have been properly executed by each of them, if applicable. Such documents shall include, without limitation:
(i) Good standing certificates for each Seller from the Secretary of State where such Seller has been organized, formed or incorporated, as applicable, dated no more than ten (10) days prior to the Closing Date;
(ii) Seller shall have performed A certificate signed by the secretary or other authorized officer of Sellers and complied with its covenants and agreements hereunder through dated as of the Closing Date, certifying (A) that the Board of Managers or other managing body and the Seller Owners have adopted resolutions to authorize the transactions contemplated by this Agreement, and (B) a specimen signature of an officer duly authorized thereby to execute the Acquisition Agreements and such other documents to be delivered in all material respectsconnection with Closing on behalf of Sellers;
(iii) Seller’s title in Insurance binders showing purchase of tail coverage for any Seller professional and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesgeneral liability insurance carried on a claims-made basis;
(iv) Quitclaim deeds in a form reasonably acceptable to the extent that Seller becomes subject Buyer conveying to a Chapter 11 Proceeding Buyer (or such nominee as Buyer shall designate by notice to Sellers at least three (3) days prior to the Closing Date, in form sufficient for recording and/or filing, as the case may be) good and clear record, marketable and insurable fee simple title to the Owned Real Property described in attached Schedule 1.1(a), free and clear of any and all Liens (1except for Permitted Exceptions);
(v) An opinion of Posternak, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, counsel to Sellers, substantially in the bankruptcy court shall have entered an order, in a form and containing the substance satisfactory of Exhibit A attached hereto;
(vi) A tax clearance certificate for each Seller from the Massachusetts and Maine Departments of Revenue and, where applicable, a corporate excise tax lien waiver from the Massachusetts and Maine Departments of Revenue;
(vii) All master keys to Buyer all locks on the Real Property; such instruments as are necessary to transfer the account in which the Credits are deposited to Buyer; true and Seller (correct copies of all books and records pertaining to the “Sale Order”), (A) approving this Agreement Assets and the Facilities; the original copies of the Assigned Contracts; and all documents in the possession of Seller pertaining to the residents or patients of the terms and conditions hereofFacilities;
(viii) Any other documents, and (B) approving and authorizing Seller settlement statements, owner’s affidavits, mechanic’s lien affidavits, officer’s certificates or instruments as reasonably may be required by Buyer, Buyer’s lender or the Title Company to consummate the transactions contemplated hereinhereby;
(ix) Estoppel certificates, including (A) in form and substance reasonably satisfactory to Buyer and Buyer’s lender, from the assumption and assignment landlord of the Leases Facility located in Natick, Massachusetts and (B) in the form the landlord is obligated to deliver for the Facility located in Waltham, Massachusetts;
(x) Subordination, non-disturbance and attornment agreements, in form and substance reasonably satisfactory to Buyer and Buyer’s lender, from all mortgagees and lessors having an interest in the Real Property located in Natick, Massachusetts or Waltham, Massachusetts;
(xi) Final water and sewer readings for the Real Property within five (5) days before Closing;
(xii) Such other documents and instruments, each in a form reasonably satisfactory to Buyer and its counsel, as may be reasonably requested by Seller Buyer in order to carry out the transactions contemplated by this Agreement and to vest good and clear, marketable title in the Assets and the Facilities in Buyer, free and clear of all Liens other than Permitted Exceptions;
(2xiii) no order stayingA non-foreign affidavit as required by the Foreign Investors in Real Property Tax Act, reversingas amended (Section 1445 of the Code), modifying in the form of Exhibit B, executed by each entity or amending individual comprising Sellers;
(xiv) A certification by each entity comprising the Sale Order shall be Sellers that all representations and warranties made by such Sellers hereunder are true and correct in effect on all material respects as of the Closing Date;
(vxv) Notices to each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been deliveredof the tenants at the Real Property; and
(vixvi) Updated rent roll showing the status of each of the tenant leases at the Real Property.
(g) Sellers shall have executed and delivered to Buyer the various Assignment and Assumption and ▇▇▇▇ of Sale agreements in the forms attached hereto as Exhibit C1 and Exhibit C2, dated and effective as of the Closing Date.
(h) Sellers shall have delivered duly executed copies of all Third Party Consents, excepting only Best Efforts Consents and Commercially Reasonable Efforts Consents, in the form attached as Exhibit H hereto or otherwise in form and substance reasonably satisfactory to Buyer, effective as of the Closing Date.
(i) Buyer shall have received all Governmental Approvals and consents by Governmental Authorities to the transfer or reissuance to Buyer of all DONs and all Licenses for the Facilities in form and substance reasonably satisfactory to Buyer.
(j) Buyer shall have received payment and release letters, together with UCC-3 termination statements, from all parties having financing statements filed against any of the Assets in form and substance satisfactory to Buyer, including but not limited to those listed in attached Schedule 2.23 except with respect to those provisions of the Assigned Personal Property Leases and Assigned Real Property Leases that are not leasehold mortgages.
(k) With respect to each of the Facilities that is the subject of a Master Lease with HCR, Buyer shall have entered into a new Master Lease and/or other agreements or arrangements, in form and substance reasonably satisfactory to Buyer, dated and effective as of the Closing Date.
(l) With respect to each of the Facilities that is the subject of a Master Lease between a Seller and HCPI, Buyer shall deliver have entered into a new Master Lease and/or other agreements or arrangements (which may include HCPI’s consent to the Leased Premises applicable Seller’s assignment of each such lease to Buyer and the assumption of each such lease by Buyer), in vacantform and substance reasonably satisfactory to Buyer, broom clean dated and effective as of the Closing Date.
(m) With respect to each of the Facilities located in Waltham, Massachusetts or Natick, Massachusetts, Buyer shall, to the extent required under the applicable lease agreement, have received a Landlord’s Consent to Assignment and Assumption of Lease executed by the applicable Seller and the landlord for such Facility, assigning to Buyer such Seller’s existing lease for that Facility that it currently leases from such landlord, in form and substance reasonably satisfactory to Buyer and Buyer’s lender, dated and effective as of the Closing Date.
(n) Buyer (i) shall have received all other required approvals, consents and clearances from Governmental Authorities in connection with the transactions contemplated by this Agreement, including receipt by Buyer of all licenses, permits, consents and approvals for Buyer to own and operate the Facilities, and (ii) has, and has been given, no reason to believe that the Facilities will not be eligible to continue their participation in the Medicare and Medicaid programs, and (iii) shall have been notified that any waiting period required under the HSR Act shall have expired.
(o) Sellers shall have executed and delivered to Buyer, for submission by Buyer to the appropriate authorities, (i) upon receipt of Medicare CHOW Approval, notifications to Sellers’ Medicare fiscal intermediary and state Medicaid program terminating electronic reimbursement to Sellers with respect to the Facilities for services provided after the Closing, (ii) upon receipt of Medicare CHOW Approval, CMS Form 855A prepared by Buyer, duly completed to report the change of ownership of the Facilities, and (iii) a notification to the healthcare licensing authority of each state where any Facility is located, relinquishing the relevant Seller’s license to operate such Facility and enclosing the original of such license, to the extent applicable.
(p) Sellers and the Escrow Agent shall have entered into the Escrow Agreement.
(q) Sellers shall have delivered full possession of the Real Property, free of all tenants and occupants except as expressly permitted hereunder, in the same condition as it now is, reasonable wear and tear excepted.
(r) Sellers shall have delivered the executed assignments of the Specialty Medical Agreements and the Health Care Staffing Agreements identified on Schedule 2.20.
(s) Each Signatory Owner and other Seller consultant or employee listed on Schedule 6.2(h) hereto, shall have entered into a consulting agreement in the form attached as Exhibit F hereto, with such other terms, if any, as are set forth on Schedule 6.2(h) or have otherwise been agreed in writing between Buyer and Seller contemporaneous with the execution hereof.
(t) Buyer shall have received such other documents and instruments, each in a form reasonably satisfactory to Buyer and its counsel, as may be reasonably requested by Buyer in order to carry out the transactions contemplated by this Agreement.
(u) The Real Property located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, specifically Parcels A, B-1 and B as shown on that certain Plan of Land in Agawam, Massachusetts prepared by ▇▇▇▇▇ & ▇▇▇▇ surveyors dated January 17, 2005 and recorded with the Hampden Registry of Deeds at Book 336, Page 125, as described in Schedule 1.1(a) and Schedule 1.1(b), shall comply with all FF&Eapplicable zoning and subdivision requirements. The Real Property located at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (including without limitation the Computer and Security Equipment▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, as specifically set forth described in Schedule II)1.1(b) shall comply with all applicable zoning and subdivision requirements.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Kindred Healthcare, Inc)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate purchase the transactions contemplated hereby in connection with the Shares at Closing is subject to the satisfaction (or waiver by Buyer) at or prior to Closing of each of the following conditions:
(ia) Each representation and warranty made by the representations and warranties set forth Sellers in Section 22.a) 4 below shall have been be true and correct on the date hereof and as of the Closing as though made as of Closing (except to the extent other than any representation or warranty that is expressly made as of an earlier a particular date, in which case as of such date as if made at shall be true and correct as of such date).
(b) All covenants, except where the failure of such representations agreements and warranties conditions contained in this Agreement to be so true performed or complied with by the Sellers at or prior to Closing shall have been performed or complied with by the Sellers.
(c) The Sellers shall have delivered to Buyer: (i) wire transfer instructions for each Seller for the payment of the Purchase Price to be paid by Buyer at Closing; and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) duly completed and executed copies of Internal Revenue Service Form W-9 for each Seller certifying such Seller is not subject to backup withholding in connection with the payment by Buyer of the Purchase Price pursuant to this Agreement.
(d) The Chief Financial Officer of Buyer shall have performed delivered to the Independent Committee a written certification that, after giving effect to the Repurchase Transaction: (i) the actual, current value of the assets of Buyer will exceed the total amount of Buyer’s total liabilities by an amount greater than Buyer’s capital as defined in the Delaware General Corporation Law; (ii) Buyer will be able to pay its liabilities as they become absolute and complied with its covenants and agreements hereunder through the Closing in all material respects;
mature; (iii) Seller’s Buyer will not have an unreasonably small amount of capital for the business in which it is engaged or intends to engage; and (iv) Buyer will be able to continue as a going concern.
(e) The Independent Committee shall have received an opinion from a nationally recognized investment banking or financial advisory firm regarding the fairness of the Per Share Purchase Price to be paid by Buyer (which opinion has not been withdrawn prior to Closing), in a form acceptable to the Independent Committee.
(f) The Sellers shall have delivered to Buyer all right, title and interest in and to the Acquired Assets shall be goodShares, valid free and marketable and free clear of all liens liens, claims, security interests and other encumbrances;
(iv) , pursuant to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II1.3(b).
Appears in 1 contract
Sources: Share Repurchase Agreement (Primoris Services Corp)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction or waiver of the following conditionsconditions on or prior to the Closing Date:
(ia) the The representations and warranties set forth in Section 22.a) Article V hereof that are subject to materiality or Material Adverse Effect qualifications shall have been be true and correct on in all respects as of the date hereof and at and as of the Closing (except and the representations and warranties contained in Article V hereof that are not subject to the extent expressly made materiality or Material Adverse Effect qualifications shall be true and correct in all material respects as of an earlier date, in which case as of such the date as if made hereof and at and as of such date)the Closing, except where in each case as though then made and as though the failure Closing Date was substituted for the date of this Agreement throughout such representations and warranties warranties, and each Seller and the Company shall have performed in all material respects all of the covenants and agreements required to be so true performed by such Persons hereunder prior to the Closing;
(b) Sellers and correct has not had the Company shall have received or obtained all material third-party consents and would not reasonably be expected to have a material adverse effect on approvals that are necessary (i) for the condition consummation of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinhereby;(ii) to prevent a breach of or default under, or a termination, modification or acceleration of, any material instrument, contract, lease, license or other agreement on the attached Restrictions Schedule and/or (iii) to prevent the occurrence of a Material Adverse Effect (collectively, the “Third-Party Approvals”). In addition, Sellers shall have delivered to Buyer all Third-party Approvals prior to the Closing;
(c) Sellers and the Company shall have received or obtained all material governmental and regulatory consents, Permits, approvals and authorizations that are necessary (i) for the consummation of the transactions contemplated hereby or (ii) Seller for Buyer to own the Equity Interests following the Closing (collectively, the “Governmental Approvals”). In addition, Sellers shall have performed and complied with its covenants and agreements hereunder through delivered to Buyer the Closing in all material respectsGovernment Approvals prior to the Closing;
(d) No suit, action or other proceeding shall be pending or threatened before any court or governmental or regulatory official, body or authority or any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (i) prevent the performance of this Agreement or the consummation of any of the transactions contemplated hereby or declare unlawful any of the transactions contemplated hereby; (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation and/or (iii) Seller’s title result in and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesa Material Adverse Effect;
(ive) The Company and Sellers shall have obtained and delivered to Buyer a letter of consent from each lessor of the Leased Realty and/or party to any Material Contract listed on the Required Approvals Schedule, for which a consent of assignment is necessary according to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to terms of such lease and/or contract;
(f) All of the Closing Date, (1) agreements listed on the bankruptcy court Termination Schedule attached hereto shall have entered an orderbeen terminated with no further liability on the part of the Company and the Sellers’ and the Company’s Loan Agreement with Silicon Valley Bank (“SVB”), as amended, Security Agreement with SVB, as amended, Pledge Agreement, as amended, and all other agreements with SVB shall be further amended or modified to remove the Company as a party thereto and to have any and all Liens, Encumbrances and/or any other security interests against the Company, its assets and/or its securities removed;
(g) The Company shall have received a resignation from each member of the board of directors and each officer of the Company who is not going to serve as a director or officer, as the case may be, of the Company and/or who has been requested in writing to be removed from such positions by the Buyer, immediately following the purchase of the Equity Interests by Buyer, in a form and substance reasonably satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order each such resignation shall be in full force and effect as of the time of the Closing on the Closing Date;
(h) Each of Sellers and the Company shall have executed and delivered a transition services agreement substantially in the form attached hereto as Exhibit C (the “Transition Services Agreement”), and the Transition Services Agreement shall be in full force and effect as of the Closing;
(i) Each of Sellers, the Company and the Escrow Agent shall have executed and delivered the Escrow Agreement and the Escrow Agreement shall be in full force and effect as of the Closing;
(j) Each of Sellers, the Company and the Escrow Agent shall have executed and delivered the Deposit Escrow Agreement and the Deposit Escrow Agreement shall be in full force and effect as of the Closing and the Deposit Escrowed Funds shall have been wired to, and placed into the Deposit Escrow Account by the Escrow Agent;
(k) Holders of a majority of Sellers’ and the Company’s issued and outstanding common stock shall have approved the transactions contemplated hereby (or such greater majority as may be required to lawfully approve such transactions) (the “Stockholder Approvals” and such approval of GlobalOptions Group’s stockholders, the “GlobalOptions Group Stockholder Approval”) and the Sellers and the Company have obtained the approval of their respective boards of directors for the transactions contemplated hereby (the “Other Approvals”);
(l) Buyer shall have received from Sellers Uniform Commercial Code, tax lien, bankruptcy and pending suit and judgment searches related to the Company and its assets and properties, from the states of Delaware, Virginia, Kansas and New York dated not more than seven (7) days prior to the Closing Date, together with evidence that all Encumbrances arising from, or related to, the Property or the Business, as the case may be, have been released.
(m) At the Closing, Sellers shall have delivered to Buyer: (i) a certificate signed by the Chief Executive Officer or the Chief Financial Officer of each of Sellers and the Company, dated as of the Closing Date, stating that the conditions specified in subsections (a) through (i) above have been satisfied as of the Closing; (ii) a certificate executed by the Chief Executive Officers or the Chief Financial Officers of each of Sellers and the Company setting forth their good faith and best estimate of the Closing Net Working Capital; (iii) copies of all Third-Party Approvals and Governmental Approvals (except those waived by the Buyer); (iv) certified copies of the resolutions of Sellers’ and the Company’s boards of directors and stockholders authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby and the consummation of the transactions contemplated hereby and thereby; (v) good standing certificates for Sellers, the Company from their respective jurisdictions of formation and each delivery contemplated by Section 11(ajurisdiction in which the Company is qualified to do business as foreign companies, in each case dated as of a recent date prior to the Closing Date; and (vi) such other documents or instruments as are required to be delivered by Sellers or the Company at the Closing pursuant to the terms hereof or that Buyer shall have been deliveredreasonably requests prior to the Closing Date to effect the transactions contemplated hereby; and
(vin) Seller All proceedings to be taken by Sellers and the Company in connection with the consummation of the transactions contemplated hereby and all certificates, instruments and other documents required to effect the transactions contemplated hereby reasonably requested by Buyer shall deliver the Leased Premises be reasonably satisfactory in vacant, broom clean form and substance to Buyer and its counsel. Any condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically specified in this Section 3.1 may be waived by Buyer if such waiver is set forth in Schedule IIa writing duly executed by Buyer.
(o) Buyer shall have received an opinion of Sellers’ counsel, dated as of Closing Date, substantially in the form attached hereto as Exhibit D (the “Opinion of Sellers’ Counsel”).
(p) No Material Adverse Effect has occurred since the date of this Agreement.
(q) The Company shall have entered into valid employment agreements and/or consulting agreements containing terms and conditions acceptable to Buyer with ▇▇▇▇▇ ▇▇▇▇▇▇ and the other individual identified on the Key Employee Schedule attached hereto.
(r) The Company shall have delivered to Buyer an unaudited income statement for the period commencing on January 1, 2010 through the full month prior to the Closing, which reports total revenues and net income in amounts at least 85% of the amounts set forth on the projections attached hereto as Exhibit E (the “2010 Unaudited Financial Statements”). Such unaudited income statement shall (A) present fairly the operating results of the Company as of the date thereof and for the periods therein indicated; (B) reflect the consistent application of accounting principles throughout the periods indicated; and (C) be prepared in accordance with the books and records of the Company and GAAP, subject to the same categories of exclusions from GAAP set forth in the Exclusions From GAAP Schedule for the unaudited June 30, 2010 statement of operations.
(s) All intercompany debts, liabilities, and/or obligations owed by the Company to either or both of the Sellers has been converted, prior to the Closing, into equity in a manner reasonably acceptable to the Buyer. The Company shall receive a general release from the Sellers in a form reasonably acceptable to the Buyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (GlobalOptions Group, Inc.)
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing by this Agreement is subject to the satisfaction or waiver of the following conditionsconditions on or before the Closing Date:
(ia) the The representations and warranties set forth in Section 22.a) Article 5 hereof and otherwise in this Agreement shall have been be true and correct on the date hereof in all material respects at and as of the Closing (Date as though then made, except to the extent expressly that any such representation or warranty made as of an earlier date, in which case as of such a specified date as if made at (other than the date hereof) shall only need to have been true on and as of such date), except where ;
(b) Seller shall have performed in all material respects all of the failure of such representations covenants and warranties agreements required to be so true performed and correct has not had complied with by it under this Agreement prior to the Closing;
(c) On the Closing Date, Seller shall have delivered to Buyer the following:
(1) the ▇▇▇▇ of Sale and would not such other instruments of conveyance, transfer, assignment and delivery as Buyer shall have reasonably be expected requested pursuant to have Article 4 hereof conveying and assigning the Acquired Assets;
(2) to the extent in its possession, the Location Contracts listed in Schedule 1 to this Agreement;
(3) a material adverse effect on certified copy of the condition resolutions of Acquired Assets as a whole or on the ability board of directors and sole shareholder of Seller to consummate authorizing the execution, delivery and performance of the Agreement and all documents, instruments and transactions contemplated herein;
(ii4) Seller shall have performed and complied with its covenants and agreements hereunder through a certificate dated not more than fifteen (15) business days prior to the Closing from the Secretary of State of the State of Delaware to the effect that Seller is in good standing;
(5) evidence of the release of all outstanding liens affecting the Acquired Assets, including but not limited to the lien of Cornell Capital, Inc. and any federal, state or local tax liens;
(6) closing certificates pursuant to which the Seller represents and warrants to Buyer that its representations and warranties to Buyer are true and correct in all material respects as of the Closing Date as if then originally made and that all covenants required by the terms hereof to be performed by the Seller on or before the Closing Date, to the extent not waived by the Buyer in writing, have been so performed in all material respects;
(iii7) Seller’s title in and undertaking to protect the confidential proprietary information relating to the Acquired Assets shall be good, valid upon request of Buyer and marketable at Buyer’s sole cost and free expense (including the cost of all liens Seller’s personnel involved in such matter) and encumbranceswithout Seller incurring any expense in respect thereof;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form 8) all other documents and substance satisfactory to Buyer instruments as may be reasonably necessary and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller required to consummate the transactions contemplated hereinby this Agreement, including including, but not limited to assignment certificates as requested on a case by case basis.
(d) Buyer shall have entered into an agreement with Coinmach, in form and substance reasonably satisfactory to Buyer;
(e) Key Provider Obligations shall have been resolved to the assumption reasonable satisfaction of Buyer and assignment Seller. Key Provider Obligations shall mean the amounts that must be paid to CLEC and LEC service providers, TU LLC, Inc, and Coinmach, Intera, Inc. Markcom, Inc. and similar service providers, (and any other key service provider identified on Schedule 9.1(e)) in order for the provider to recognize the transfer of the Leases by Seller Telephones being transferred to Buyer, Buyer and (2) no order staying, reversing, modifying or amending to agree to continue to provide service to the Sale Order shall be in effect on Telephones after the Closing Date. To the extent that the amount of Key Provider Obligations can not be fixed prior to Closing, Seller shall promptly pay any outstanding Key Provider Obligations after Closing in accordance with the Transition Services Agreement and Exhibit E.
(f) Buyer and Seller shall enter into a transition services agreement in a mutually acceptable form (the “Transition Services Agreement”);
(vg) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) and Seller shall deliver enter into an Agency Agreement in a mutually acceptable form (the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II“Agency Agreement”).
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s BUYER will have no obligation to purchase the Property and consummate the transactions contemplated hereby in connection with the Closing is subject to satisfaction or waiver unless each of the following conditionsconditions precedent has been satisfied or waived by BUYER as of the Expected Closing Date:
1. Title Company shall issue or be unconditionally and irrevocably committed to issue to BUYER the Title Policy (as defined below);
2. SELLER and Escrow Holder, respectively, shall have performed all of their covenants and obligations set forth in this Agreement;
3. BUYER shall not have terminated this Agreement pursuant to the contingencies set forth in Paragraph 8; and If any of the conditions precedent in favor of BUYER set forth in Section 16(c)(i) are neither satisfied nor waived by BUYER by the Expected Closing Date, then, BUYER (at its option) may terminate this Agreement by giving a notice of termination to SELLER as and to the extent provided in Paragraph 10. In the case any such termination, (i) the representations and warranties set forth in Section 22.a) escrow shall have been true and correct on the date hereof and as of the Closing (except to the extent expressly made as of an earlier dateterminate, in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(ii) Seller shall BUYER will have performed and complied with its covenants and agreements hereunder through no further obligation to purchase the Closing in all material respects;
Property from Seller, (iii) Seller’s title in Seller will have no further obligation to sell the Property to BUYER, and to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrances;
(iv) the Parties will have no further obligation to one another, except as otherwise expressly provided herein. In the event of such a termination, the Deposit (exclusive of the Independent Consideration) shall be returned to BUYER. Notwithstanding anything to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an ordercontrary contained herein, in the event of a form and substance satisfactory to Buyer and Seller (failure of any condition precedent specified in this Paragraph 16(c)(i) that is caused by a default hereunder on the “Sale Order”)part of SELLER, (A) approving then in lieu of terminating this Agreement and all of the terms and conditions hereofescrow pursuant to this Paragraph, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order then BUYER shall be in effect on entitled to exercise its rights pursuant to the Closing Date;
(v) each delivery contemplated by Section 11(a) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule IIprovisions of Paragraph 22(c).
Appears in 1 contract
Sources: Purchase and Sale Agreement
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate the transactions contemplated hereby in connection with the Closing is subject to satisfaction or waiver of the following conditions:
(a) (i) the Seller Fundamental Reps shall have been true and correct in all respects (except for immaterial defects) as of the date hereof and at and as of the Closing Date as though made on the Closing Date; and (ii) the representations and warranties of ODP and Seller set forth in Section 22.aArticle III (other than those referenced in clause (i) above) shall have been true and correct on in all respects as of the date hereof and at and as of the Closing Date as though made on the Closing Date (except to the extent expressly made as of such representations and warranties relate to an earlier date, in which case as of such date as if made at representations and warranties shall be so true and correct on and as of such earlier date), except in the case of clause (ii), where the failure of such representations and warranties to be so true and correct has not had and (without giving effect to any materiality or similar qualifications contained therein) would not not, individually or in the aggregate, materially adversely affect or be reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on materially adversely affect the ability of Seller or its Affiliates to consummate the transactions contemplated hereinby this Agreement or the Related Agreements on a timely basis (excluding any effects or changes arising from or related to the breach of the Agreement by the Buyer or its Affiliates);
(iib) the Seller shall have performed and complied with its covenants and other agreements hereunder through required to be performed by Seller at or prior to the Closing in all material respects;
(iiic) Seller’s title in (i) all applicable waiting periods (and any extensions thereof) under the Antitrust Law shall have expired or otherwise been terminated (or the antitrust clearance shall have been received prior to such expiration or termination), and (ii) Buyer shall have received evidence of each of the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesforegoing reasonably satisfactory to it;
(iv) to the extent that Seller becomes subject to a Chapter 11 Proceeding prior to the Closing Date, (1) the bankruptcy court shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2d) no order staying, reversing, modifying or amending the Sale Order Decree shall be in effect on which prohibits consummation of any of the Closing Datetransactions contemplated by this Agreement or the Related Agreements;
(ve) each delivery contemplated by Section 11(a2.4(a) to be delivered to Buyer shall have been delivered; and
(vif) Seller Gigante’s Shareholders’ Approval shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)have been received.
Appears in 1 contract
Conditions to Buyer’s Obligations. The Close of Escrow and Buyer’s obligation to consummate the transactions transaction contemplated hereby in connection with the Closing is by this Agreement are subject to the satisfaction or waiver of the following conditions for Buyer’s benefit (or Buyer’s waiver thereof, it being agreed that Buyer may waive any or all of such conditions) on or prior to the Closing Date or on the dates designated below for the satisfaction of such conditions:
(ia) the All of Seller’s representations and warranties set forth in Section 22.a) contained herein shall have been be true and correct on in all material respects as of the date hereof of this Agreement and as of the Closing (except Date, subject to the extent expressly any qualifications hereafter made to any of Seller’s representations as of an earlier date, provided for in which case as of such date as if made at and as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinSection 11.1 hereof;
(iib) As of the Closing Date, Seller shall have performed its respective obligations hereunder and complied with its covenants and agreements hereunder through the Closing in all material respectsdeliveries to be made at Close of Escrow by Seller shall have been tendered;
(iiic) Seller’s title in and to There shall exist no actions, suits, arbitrations, claims, attachments, proceedings, assignments for the Acquired Assets shall be goodbenefit of creditors, valid and marketable and free of all liens and encumbrancesinsolvency, bankruptcy, reorganization or other proceedings, pending or threatened against Seller or against the Property Owners that are not covered by insurance;
(ivd) There shall exist no pending or threatened action, suit or proceeding with respect to Seller or the extent that Seller becomes subject Property Owners before or by any court or administrative agency which seeks to restrain or prohibit, or to obtain damages or a Chapter 11 Proceeding discovery order with respect to, this Agreement or the consummation of the transaction contemplated hereby;
(e) Subject to Section 4.4 above, no less than three (3) business days prior to the Closing DateDate (as the same may be extended under the terms of this Agreement), (1) the bankruptcy court Seller shall have entered an order, in a form and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying delivered or amending the Sale Order shall be in effect on the Closing Date;
(v) each delivery contemplated by Section 11(a) caused to be delivered to Buyer Buyer, Tenant Estoppel Certificates complying with the provisions of Section 4.4 above, which Tenant Estoppel Certificates shall have been deliveredbe consistent with the information set forth in the Rent Rolls; and
(vif) As of the Closing Date, there shall have been no material adverse changes since the expiration of the Due Diligence Period in the condition of the Property (including, but not limited to, the Leases (except for any amendments to the Leases provided for under this Agreement and except for the expiration of any Lease pursuant to the express terms of any Lease), except any changes in the condition of the Property covered by the provisions of Section 5.4 herein.
(g) The Title Company shall be irrevocably committed to issue the Title Policy to the Property Owners effective as of the Closing Date, subject only to the Permitted Exceptions and without additional premium to Buyer. If, notwithstanding the nonsatisfaction of any such condition, the Close of Escrow occurs, there shall be no liability on the part of Seller shall deliver for breaches of representations and warranties of which Buyer had knowledge as of the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II)Close of Escrow.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (KBS Real Estate Investment Trust II, Inc.)
Conditions to Buyer’s Obligations. Buyer’s obligation to consummate the transactions contemplated hereby in connection with purchase of the Closing Acquired Assets and the assumption of the Assumed Liabilities is subject to satisfaction or waiver by Buyer of the following conditions:
(a) (i) the The representations and warranties of Sellers set forth in Section 22.a3.1, Section 3.2, Section 3.4(a), Section 3.9 and Section 3.16 (the “Seller Fundamental Representations”) shall have been be true and correct on in all respects as of the date hereof and as of the Closing (except to the extent expressly made Date, as of an earlier date, in which case as of such date as if though made at and as of the Closing Date, except to the extent any such dateSeller Fundamental Representations expressly relate to an earlier time (in which case such Seller Fundamental Representations shall be true and correct in all respects at and as of such earlier time), and (ii) all representations and warranties of the Sellers in this Agreement (other than the Seller Fundamental Representations) shall be true and correct, without regard to any qualifications as to “material”, “materiality”, or “Material Adverse Effect” (or any correlative terms), as of the date hereof and as of the Closing Date, as though made at and as of the Closing Date, except to the extent such representations and warranties expressly relate to an earlier time (in which case such representations and warranties shall be true and correct at and as of such earlier time), except where the failure of such representations and warranties to be so true and correct has not had had, and would not reasonably be expected to have have, individually or in the aggregate, a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinMaterial Adverse Effect;
(iib) Seller Sellers shall have performed and complied with its covenants and agreements hereunder through the Closing in all material respectsrespects with the obligations and covenants required by this Agreement to be performed or complied with by Sellers at or prior to the Closing;
(iiic) Seller’s title in and Since the date of this Agreement, there shall not have occurred any event, change, occurrence or effect that, individually or together with all other events, changes, occurrences or effects, has had, or would reasonably be expected to the Acquired Assets shall be goodhave, valid and marketable and free of all liens and encumbrancesa Material Adverse Effect;
(ivd) to the extent that Seller becomes subject to Buyer shall have received a Chapter 11 Proceeding prior to certificate, dated as of the Closing DateDate and executed by an executive officer authorized to sign on behalf of the Sellers, stating that the conditions specified in Section 7.1(a), Section 7.1(b), and Section 7.1(c) have been satisfied;
(1e) the bankruptcy court The Bankruptcy Court shall have entered an order, in a form the Sale Order and substance satisfactory to Buyer and Seller (the “Sale Order”), (A) approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date;
(vf) each Any waiting period applicable to the consummation of the transaction contemplated by this Agreement under the HSR Act shall have expired or been terminated [and all other regulatory approvals required to be obtained prior to the Closing in order to consummate the transactions contemplated by this Agreement15 shall have been obtained or any applicable waiting period shall have expired or been terminated];
(g) No material Decree shall be in effect that prohibits consummation of the transactions contemplated by this Agreement; and
(h) Each delivery contemplated by Section 11(a2.5(b) to be delivered to Buyer shall have been delivered; and
(vi) Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer and Security Equipment, as specifically set forth in Schedule II).
Appears in 1 contract
Sources: Asset Purchase Agreement
Conditions to Buyer’s Obligations. Buyer’s obligation The obligations of Buyer to consummate the transactions contemplated hereby in connection with the Closing is by this Agreement are subject to the satisfaction or (or, if permitted by applicable Law, waiver by Buyer in writing) of the following conditionsconditions as of the Closing Date:
(ia) As certified in a closing certificate delivered by the representations and warranties set forth in Section 22.a) Seller Representative at the Closing (the “Seller Closing Certificate”), the Fundamental Representations shall have been be true and correct on in all material respects at and as of the date hereof and the Closing Date as though made at and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case only as of such date) and (ii) all other representations and warranties of the Company contained in Article III of this Agreement shall be true and correct in all material respects (in the case of any representation or warrant not qualified by “materiality” or “Material Adverse Effect”) as of the date hereof and the Closing Date as if though made at and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case only as of such date), except where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated herein;
(iib) Seller shall Sellers and the Company will have performed and complied with its in all material respects all of the covenants and agreements hereunder through required to be performed by it under this Agreement at or prior to the Closing in all material respectsClosing;
(iiic) Seller’s title in and No judgment, decree or order will have been entered that prevents the performance of this Agreement or the consummation of any of the transactions contemplated hereby, declares unlawful the transactions contemplated by this Agreement or causes such transactions to the Acquired Assets shall be good, valid and marketable and free of all liens and encumbrancesrescinded;
(ivd) There will not have been a Company Material Adverse Effect since the date hereof;
(e) The Company will have delivered to Buyer a certificate of an authorized officer of the extent that Seller becomes subject to a Chapter 11 Proceeding prior to Company in his or her capacity as such, dated as of the Closing Date, (1) stating that the bankruptcy court shall have entered an order, conditions specified in a form and substance satisfactory to Buyer and Seller (the “Sale Order”Section 7.01(a), (ASection 7.01(b) approving this Agreement and all of the terms and conditions hereof, and (BSection 7.01(d) approving and authorizing Seller to consummate the transactions contemplated herein, including the assumption and assignment of the Leases by Seller to Buyer, and (2) no order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Datehave been satisfied;
(vf) each delivery contemplated by Section 11(aThe Company will have delivered a fully executed ▇▇▇▇▇ Employment Agreement Termination;
(g) to be delivered to Buyer Sellers shall have been delivereddelivered each of the Required Consents; and
(vih) Each Seller shall deliver the Leased Premises in vacant, broom clean condition with all FF&E, (including without limitation the Computer have executed and Security Equipment, as specifically set forth in Schedule II)delivered any Transaction Document to which such Seller is a party.
Appears in 1 contract
Conditions to Buyer’s Obligations. Buyer’s The obligation of Buyer to consummate the transactions contemplated hereby in connection with the Closing is subject to the satisfaction or waiver of each of the following conditionsadditional conditions as of immediately prior to the Closing:
(i) Each of the representations and warranties set forth of Seller and the Seller Subs contained in Article 4 of this Agreement, taken together, excluding for purposes of this Section 22.a2B(i) any reference to any materiality, “Enterprise G▇▇▇▇ ▇▇▇▇▇▇▇▇ Adverse Effect” or similar standard or qualifier, shall have been be true and correct on as of the date hereof and as of the Closing Date as if made anew as of such date (except to the extent any such representation and warranty expressly made as of relates to an earlier date, date (in which case such representation and warranty shall be true and correct as of such date as if made at and as of such earlier date)), except where to the failure extent of changes or developments after the date of this Agreement contemplated by the terms of this Agreement, and except for failures of such representations and warranties to be so true and correct has as have not had and would not reasonably be expected to have a material adverse effect on have, individually or in the condition of Acquired Assets as a whole or on the ability of Seller to consummate the transactions contemplated hereinaggregate, an Enterprise G▇▇▇▇ ▇▇▇▇▇▇▇▇ Adverse Effect;
(ii) Seller shall have performed and complied with its Each of the covenants and agreements hereunder through of Seller and the Seller Subs to be complied with and/or performed as of or prior to the Closing under this Agreement and the Ancillary Agreements shall have been performed in all material respects;
(iii) Seller’s title Seller shall have delivered to Buyer a certificate in the form of Exhibit A attached hereto dated as of the Closing Date and signed by a senior executive officer of Seller on behalf of Seller and the Seller Subs certifying as to the Acquired Assets shall be good, valid fulfillment of the conditions in Section 2B(i) and marketable and free of all liens and encumbrancesSection 2B(ii);
(iv) All Liens (other than Permitted Encumbrances) on the Purchased Assets shall have been released effective as of the Closing and evidence of the release of such Liens effective as of the Closing, in customary form, from the Persons required to deliver such release(s) shall have been delivered to Buyer;
(v) The Adjustment Escrow Agreement in substantially the form of Exhibit B attached hereto (the “Adjustment Escrow Agreement”) shall have been executed by the Escrow Agent and Seller and shall have been delivered to Buyer;
(vi) The Indemnity Escrow Agreement in substantially the form of Exhibit C attached hereto (the “Indemnity Escrow Agreement”) shall have been executed by the Escrow Agent and Seller and shall have been delivered to Buyer;
(vii) The Real Estate Sublease Agreements in substantially the form of Exhibit D and Exhibit E attached hereto (the “Subleases”) shall have been executed by Seller and delivered to Buyer;
(viii) The Transition Services Agreement in substantially the form of Exhibit F attached hereto (the “TSA”) shall have been executed by Seller and shall have been delivered to Buyer;
(ix) The License Agreement in substantially the form of Exhibit G attached hereto (the “License Agreement”) shall have been executed by Seller and shall have been delivered to Buyer;
(x) All notices set forth on Section 2B(x) of the Seller Disclosure Letter required to be given prior to the Closing to, and all consents, approvals, authorizations, waivers and amendments set forth on Section 2B(x) of the Seller Disclosure Letter required to be obtained prior to the Closing from, any Person in connection with the consummation of the transactions contemplated by this Agreement shall have been given or obtained, as the case may be;
(xi) No event, change, effect or development shall have occurred after the date of this Agreement and be continuing that, individually or in the aggregate, has had or would reasonably be expected to have an Enterprise G▇▇▇▇ ▇▇▇▇▇▇▇▇ Adverse Effect;
(xii) Buyer shall have received the Debt Financing or Alternative Financing on terms not materially less favorable to Buyer than those set forth in the Debt Commitment Letter (as may be modified by the exercise of any “market flex” provisions to which the Debt Commitment Letter may subject (which “market flex” provisions (if any) were provided by Buyer to Seller prior to the date of this Agreement)); provided that the condition in this Section 2B(xii) shall be deemed satisfied if a reason the Buyer did not receive such Debt Financing for the transactions contemplated hereby was (a) the failure of funding pursuant to the Equity Commitment Letter when required thereby or the failure of any equity funding condition of similar effect in the Debt Commitment Letter, (b) the failure to deliver documents by Buyer, the Equity Sponsors or any of their respective Affiliates at the Closing, (c) the failure to pay costs, fees, expenses and other compensation contemplated by the Debt Commitment Letter or related letters (including the confidential fee letter attached to the Debt Commitment Letter, which shall not be attached to this Agreement or in any manner be required to be disclosed to Seller or its Affiliates (the “Fee Letter”)) payable by Buyer (or other borrower thereunder), the Equity Sponsors or any of their respective Affiliates to the lead arrangers, other lenders and administrative agents or any other Person, (d) a breach in any material respect by Buyer (or other borrower thereunder), the Equity Sponsors or any of their respective Affiliates under the Debt Commitment Letter or related letters (including the Fee Letter), or (e) as a result of the DevShed Full Contribution (as defined in the Debt Commitment Letter) or the DevShed 75% Contribution (as defined in the Debt Commitment Letter) having occurred and the conditions in the Debt Commitment Letter not having been satisfied as a result of a fact, event or circumstance involving DevShed); provided further that, notwithstanding the immediately foregoing proviso, this Section 2B(xii) shall continue to be a condition precedent to the Closing to the extent that the failure to satisfy conditions to the Debt Financing or Alternative Financing resulted from (x) a breach or breaches by Seller becomes subject that would cause the failure of the conditions set forth in Section 2B(i) or Section 2B(ii) or (y) the occurrence of any event that would cause the failure of the condition set forth in Section 2B(xi);
(xiii) The mutual release in substantially the form of Exhibit H attached hereto (the “Mutual Release”) shall have been executed by Seller and delivered to a Chapter 11 Proceeding prior Buyer;
(xiv) Buyer shall have received, in form and substance reasonably satisfactory to Buyer, an opinion, dated as of the Closing Date, from counsel for Seller and the Sellers Subs solely with respect to matters agreed between counsel for Buyer and counsel for Seller and the Seller Subs on or prior to the date of this Agreement, and subject to assumptions, reasoning, analysis, qualifications and exclusions discussed and substantively agreed between counsel for Buyer and counsel for Seller and the Seller Subs on or prior to the date of this Agreement;
(1xv) the bankruptcy court Seller shall have entered an order, in a form and substance satisfactory delivered to Buyer and Seller (certified copies of the “Sale Order”), resolutions or written consents of (A) the board of directors of Seller and each Seller Sub authorizing Seller and each Seller Sub to enter into this Agreement and the Ancillary Agreements to which it is a party and (B) Seller, in its capacity as (directly or indirectly) sole shareholder of each of the Seller Subs, approving this Agreement and all of the terms and conditions hereof, and (B) approving and authorizing Seller to consummate the transactions contemplated hereinhereby;
(xvi) Seller shall have delivered to Buyer a short-form certificate of good standing of Seller, including certified by the assumption and assignment Secretary of the Leases by Seller State of Seller’s jurisdiction of incorporation as of a reasonable date (not to Buyer, and (2exceed 15 Business Days) no order staying, reversing, modifying or amending the Sale Order shall be in effect on prior to the Closing Date;
(vxvii) each delivery contemplated by Section 11(a) to be delivered to Buyer Seller shall have been delivereddelivered a certificate to Buyer, dated as of the Closing Date and signed by an authorized officer of Seller on behalf of Seller, certifying that Seller is not a foreign person in form and substance consistent with Section 1445 of the Code and the Treasury Regulations thereunder; and
(vixviii) Seller shall deliver have delivered to Buyer, with respect to the Leased Premises Enterprise Group, an audited Statement of Net Assets Sold at each of, and an audited Statement of Revenues and Expenses for the 12 month period ended as of each of, December 31, 2006 and December 31, 2005, together with an accompanying opinion of G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (the “GT Audit Report”) and the GT Audit Report shall not, from the perspective of the Enterprise Group and taking the financial statements included in vacantthe GT Audit Report as a whole, broom clean materially adversely deviate from the Preliminary Audit Report; provided that the condition specified in this Section 2B(xviii) shall automatically be deemed satisfied on the 14th calendar day after delivery of the GT Audit Report to Buyer unless prior to such 14th calendar day, Buyer has terminated this Agreement in accordance with all FF&EArticle 6 hereof; provided further that, in no event shall the GT Audit Report be deemed to materially adversely deviate from the Preliminary Audit Report for purposes of this Section 2B(xviii) or Section 6A(v) as a result of any change in the property, plant and equipment line (including without limitation or any resulting change in the Computer and Security Equipment, as specifically set forth depreciation expense). Any condition specified in Schedule II)this Section 2B may be waived prior to Closing only by a written instrument signed by Buyer.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Ziff Davis Holdings Inc)