Conditions to Obligations to Close. 10.1 In addition to any other condition precedent or contingencies in favor of Purchaser as may be expressly set forth elsewhere in this Agreement, the obligations of Purchaser to consummate the transactions contemplated herein shall be subject to the fulfillment of the following conditions (the “Purchaser Conditions”), any of which may be waived by Purchaser in its sole and absolute discretion: (i) the representations and warranties of Seller made herein shall be true and correct in all material respects as of the date made and shall remain and be true and correct as of the Closing Date in all material respects as though such representations and warranties were made at and as of the Closing Date, (ii) Seller shall have delivered all of the documents and other items required pursuant to this Agreement and Seller shall have performed all of its covenants, agreements and obligations hereunder, and at Closing, Seller shall be the sole fee owner of the entirety of the Property; (iii) Seller shall have caused Tenant to execute and deliver the Lease in the form attached as Exhibit C-1, with any blanks completed, dates inserted and other changes (if any) which are mutually agreed upon by Seller and Purchaser, which Lease shall provide, inter alia, that (a) the Lease is a net lease, (b) the base annual rental payable under the Lease for the first lease year is not less than $3,375,418.99 (or $3,820,375,000.00, if the Battery Storage Property is included in the Property as provided in Section 2.4 above); (c) the base annual rental under the Lease shall increase by three percent (3%) annually, and (d) the Lease is for a twenty (20) year initial lease term, with three 10-year renewal options; (iv) Seller shall be solvent and not in receivership, and shall not have committed any act of bankruptcy or have made or suffered a fraudulent conveyance; (v) no action or proceeding shall be pending or contemplated by or against Seller under the federal bankruptcy code or any state law for the relief of debtors or for the enforcement of the rights of creditors, and no attachment, execution, lien, or levy shall have attached to, threatened to be attached to, or have been issued with respect to Seller’s interest in any of the Property or any portion thereof (other than liens in existence as of the Effective Date and/or which are included in Seller’s Required Removal Items under this Agreement); (vi) the environmental, legal and physical condition of the Property on the Closing Date shall not be or have been materially and adversely impacted, changed or altered in any manner from as it existed on the expiration of the Inspection Period (and expressly excluding any impacts, changes or alterations caused solely by the acts of Purchaser); (vii) if requested by Purchaser, Purchaser’s receipt, no later than five (5) business days prior to the Closing, of the Tenant Executed Estoppel (as hereinafter defined), the SNDA (as hereinafter defined), that are satisfactory or deemed satisfactory to Purchaser; (ix) the state of title to the Property shall be as provided herein, and there shall be an unconditional and irrevocable agreement by the Title Company to issue the Title Policy; (x) delivery of possession of the Property to Purchaser subject only to the Permitted Exceptions and to the rights of Tenant under the Lease, as tenant only; (xi) no order or injunction of any court or administrative agency of competent jurisdiction, nor any statute, rule, regulation or executive order, in effect as of the Closing shall restrain or prohibit the transfer of the Property in accordance with the terms of this Agreement; (xii) no action, suit or other proceeding shall be pending which shall have been brought by any person or entity (other than Seller, Purchaser or Tenant) to restrain, prohibit or change in any material respect the purchase and sale of the Property in accordance with the terms of this Agreement; and (xiii) all conditions precedent elsewhere set forth in this Agreement shall have been satisfied or waived. 10.2 In the event that any of the Purchaser Conditions shall not be satisfied as of the Closing Date, Seller may, at Seller’s option, adjourn the Closing Date on a one-time basis for a period not exceeding sixty (60) days to allow Seller additional time to satisfy Purchaser Conditions. Notwithstanding the foregoing, if Seller does not elect to adjourn the Closing Date as provided above or Seller adjourns the Closing Date but is still unable to satisfy Purchaser Conditions, then Purchaser shall have the right to either (i) terminate this Agreement by written notice to Seller on or before the Closing Date, in which event the Deposit shall be promptly returned to Purchaser and neither party shall have any further rights against the other except for obligations which expressly survive the termination of this Agreement, or (ii) on a one-time basis, adjourn the Closing Date for a period not exceeding thirty (30) days to allow Seller additional time to satisfy such Purchaser Conditions, or (iii) close on the purchase of the Property without any abatement or reduction of the Purchase Price or other liability on the part of Seller, or (iv) if the failure of any of the Purchaser Conditions to be satisfied is the result of an intentional act by Seller, seek to enforce the sale of the Property by maintaining an action for specific performance of this Agreement. Seller’s extension right under this Section 10 shall be concurrent with, and shall not be cumulative of, any right of extension exercised by Seller pursuant to Section 4.1.3 hereof. In any instance in which either Purchaser or Seller has the right to extend the Closing Date as set forth above in this paragraph, the Closing Date shall occur within five (5) business days following the date upon which the condition in question is satisfied, notwithstanding that the maximum number of days for such extension may be greater than the date which is five (5) business days following the satisfaction of such condition. 10.3 In addition to any other condition precedent or contingencies in favor of Seller as may be expressly set forth elsewhere in this Agreement, the obligations of Seller to consummate the transactions contemplated herein shall be subject to the fulfillment of the following conditions (the “Seller Conditions”), any of which may be waived by Seller in its sole and absolute discretion: (i) the representations and warranties of Purchaser made herein shall be true and correct in all material respects as of the date made and shall remain and be true and correct as of the Closing Date in all material respects as though such representations and warranties were made at and as of the Closing Date, (ii) Purchaser shall have delivered all of the documents and other items required pursuant to this Agreement and Purchaser shall have performed all of its covenants, agreements and obligations hereunder; (iii) Purchaser shall have executed and delivered the Lease; (iv) Purchaser shall be solvent and not in receivership, and shall not have committed any act of bankruptcy or have made or suffered a fraudulent conveyance; (v) no action or proceeding shall be pending or contemplated by or against Purchaser under the federal bankruptcy code or any state law for the relief of debtors or for the enforcement of the rights of creditors; (vi) no order or injunction of any court or administrative agency of competent jurisdiction, nor any statute, rule, regulation or executive order, in effect as of the Closing shall restrain or prohibit the transfer of the Property in accordance with the terms of this Agreement; (vii) no action, suit or other proceeding shall be pending which shall have been brought by any person or entity (other than Seller, Purchaser or Tenant) to restrain, prohibit or change in any material respect the purchase and sale of the Property in accordance with the terms of this Agreement; and (viii) all conditions precedent elsewhere set forth in this Agreement shall have been satisfied or waived. 10.4 In the event that any of the Seller Conditions shall not be satisfied as of the Closing Date, Purchaser may, at Purchaser’s option, adjourn the Closing Date on a one-time basis for a period not exceeding sixty (60) days to allow Purchaser additional time to satisfy Seller Conditions. Notwithstanding the foregoing, if Purchaser does not elect to adjourn the Closing Date as provided above or Purchaser adjourns the Closing Date but is still unable to satisfy Seller Conditions, then Seller shall have the right to either (i) terminate this Agreement by written notice to Purchaser on or before the Closing Date, in which event the Deposit shall be promptly returned to Purchaser and neither party shall have any further rights against the other except for obligations which expressly survive the termination of this Agreement, or (ii) on a one-time basis, adjourn the Closing Date for a period not exceeding thirty (30) days to allow Purchaser additional time to satisfy such Seller Conditions, or (iii) if the failure of any of the Seller Conditions to be satisfied is the result of an intentional act by Purchaser, Seller may exercise its remedies under Section 16.1 below. In any instance in which either Purchaser or Seller has the right to extend the Closing Date as set forth above in this paragraph, the Closing Date shall occur within five (5) business days following the date upon which the condition in question is satisfied, notwithstanding that the maximum number of days for such extension may be greater than the date which is five (5) business days following the satisfaction of such condition.
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Conditions to Obligations to Close. 10.1 In addition 8.1 Conditions to any other condition precedent or contingencies in favor Obligations of Purchaser as may be expressly set forth elsewhere in this Agreement, the BP Holdings and Nu Skin Enterprises. The obligations of Purchaser BP Holdings and Nu Skin Enterprises to consummate the transactions contemplated herein shall to be performed by them in connection with the Closing are subject to the fulfillment satisfaction of the following conditions (the “Purchaser Conditions”), any or all of which may be waived in writing by Purchaser BP Holdings and Nu Skin Enterprises, in its their sole and absolute discretion: (i) , prior to the Closing:
8.1.1 the representations and warranties of Seller made herein set forth in Section 5 above and Section 10 below that are qualified by materiality shall be true and correct in all material respects as of the date made at and shall remain and be true and correct as of the Closing Date and the representations and warranties set forth in Section 5 above and Section 10 below that are not qualified by materiality shall be true in all material respects as though such representations and warranties were made at and as of the Closing Date;
8.1.2 Big Planet, (ii) Seller shall Nu Skin USA, King, Doman, and Rick▇ ▇▇▇ll have delivered performed and complied with all of their respective covenants hereunder in all material respects through the Closing Date;
8.1.3 Big Planet, Nu Skin USA, King, Doman, and Rick▇ ▇▇▇ll have procured all of the documents third-party and other items required pursuant to this Agreement governmental consents and Seller shall have performed all of its covenants, agreements and obligations hereunder, and at Closing, Seller shall be the sole fee owner of the entirety of the Property; (iii) Seller shall have caused Tenant to execute and deliver the Lease in the form attached as Exhibit C-1, with any blanks completed, dates inserted and other changes (if any) which are mutually agreed upon by Seller and Purchaser, which Lease shall provide, inter alia, that (a) the Lease is a net lease, (b) the base annual rental payable under the Lease for the first lease year is not less than $3,375,418.99 (or $3,820,375,000.00, if the Battery Storage Property is included in the Property as provided approvals specified in Section 2.4 7 above); (c) the base annual rental under the Lease shall increase by three percent (3%) annually;
8.1.4 no action, and (d) the Lease is for a twenty (20) year initial lease termsuit, with three 10-year renewal options; (iv) Seller shall be solvent and not in receivership, and shall not have committed any act of bankruptcy or have made or suffered a fraudulent conveyance; (v) no action or proceeding shall be pending or contemplated by or against Seller under the federal bankruptcy code or any state law for the relief of debtors or for the enforcement of the rights of creditorsor, and no attachment, execution, lien, or levy shall have attached toto Big Planet's Knowledge, threatened to be attached to, or have been issued with respect to Seller’s interest in any of the Property or any portion thereof (other than liens in existence as of the Effective Date and/or which are included in Seller’s Required Removal Items under this Agreement); (vi) the environmental, legal and physical condition of the Property on the Closing Date shall not be or have been materially and adversely impacted, changed or altered in any manner from as it existed on the expiration of the Inspection Period (and expressly excluding any impacts, changes or alterations caused solely by the acts of Purchaser); (vii) if requested by Purchaser, Purchaser’s receipt, no later than five (5) business days prior to the Closing, of the Tenant Executed Estoppel (as hereinafter defined), the SNDA (as hereinafter defined), that are satisfactory or deemed satisfactory to Purchaser; (ix) the state of title to the Property shall be as provided herein, and there shall be an unconditional and irrevocable agreement by the Title Company to issue the Title Policy; (x) delivery of possession of the Property to Purchaser subject only to the Permitted Exceptions and to the rights of Tenant under the Lease, as tenant only; (xi) no order or injunction of before any court or quasi-judicial or administrative agency of competent jurisdictionany federal, nor state, local, or foreign jurisdiction or before any statutearbitrator wherein an unfavorable injunction, rulejudgment, regulation or executive order, in effect as decree, ruling, or charge would (i) prevent consummation of the Closing shall restrain or prohibit the transfer of the Property in accordance with the terms of this Agreement; (xii) no action, suit or other proceeding shall be pending which shall have been brought by any person or entity (other than Seller, Purchaser or Tenant) to restrain, prohibit or change in any material respect the purchase and sale of the Property in accordance with the terms of this Agreement; and (xiii) all conditions precedent elsewhere set forth in this Agreement shall have been satisfied or waived.
10.2 In the event that any of the Purchaser Conditions shall not be satisfied as of the Closing Date, Seller may, at Seller’s option, adjourn the Closing Date on a one-time basis for a period not exceeding sixty (60) days to allow Seller additional time to satisfy Purchaser Conditions. Notwithstanding the foregoing, if Seller does not elect to adjourn the Closing Date as provided above or Seller adjourns the Closing Date but is still unable to satisfy Purchaser Conditions, then Purchaser shall have the right to either (i) terminate this Agreement transactions contemplated by written notice to Seller on or before the Closing Date, in which event the Deposit shall be promptly returned to Purchaser and neither party shall have any further rights against the other except for obligations which expressly survive the termination of this Agreement, or (ii) on a one-time basis, adjourn cause any of the Closing Date for a period not exceeding thirty (30) days transactions contemplated by this Agreement to allow Seller additional time to satisfy such Purchaser Conditionsbe rescinded following consummation, or (iii) close on the purchase except as disclosed in Section 8.1.4 of the Property without any abatement or reduction of Disclosure Schedule, affect adversely the Purchase Price or other liability on the part of Seller, or (iv) if the failure of any of the Purchaser Conditions to be satisfied is the result of an intentional act by Seller, seek to enforce the sale of the Property by maintaining an action for specific performance of this Agreement. Seller’s extension right under this Section 10 shall be concurrent with, and shall not be cumulative of, any right of extension exercised by Seller pursuant BP Holdings or Nu Skin Enterprises to Section 4.1.3 hereof. In any instance in which either Purchaser or Seller has operate the right to extend former business of Big Planet;
8.1.5 the Closing Date as set forth above in this paragraph, the Closing Date Reorganization shall occur within five (5) business days following the date upon which the condition in question is satisfied, notwithstanding that the maximum number of days for such extension may be greater than the date which is five (5) business days following the satisfaction of such condition.have been consummated;
10.3 In addition to any other condition precedent or contingencies in favor of Seller as may be expressly set forth elsewhere in this Agreement, the obligations of Seller to consummate 8.1.6 the transactions contemplated herein shall be subject to have been approved by the fulfillment Board of the following conditions (the “Seller Conditions”), any Directors and shareholders of which may be waived by Seller in its sole and absolute discretion: (i) the representations and warranties of Purchaser made herein shall be true and correct in all material respects as of the date made and shall remain and be true and correct as of the Closing Date in all material respects as though such representations and warranties were made at and as of the Closing Date, (ii) Purchaser Big Planet;
8.1.7 Big Planet shall have delivered all to BP Holdings and Nu Skin Enterprises a certificate to the effect that each of the documents conditions specified in Sections 8.1.1 through 8.1.6 above are satisfied in all respects;
8.1.8 all applicable waiting periods (and other items required pursuant to this Agreement and Purchaser any extensions thereof) under the Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇ shall have performed all of its covenants, agreements and obligations hereunder; (iii) Purchaser shall have executed and delivered the Lease; (iv) Purchaser shall be solvent and not in receivership, and shall not have committed any act of bankruptcy expired or have made or suffered a fraudulent conveyance; (v) no action or proceeding shall be pending or contemplated by or against Purchaser under the federal bankruptcy code or any state law for the relief of debtors or for the enforcement of the rights of creditors; (vi) no order or injunction of any court or administrative agency of competent jurisdiction, nor any statute, rule, regulation or executive order, in effect as of the Closing shall restrain or prohibit the transfer of the Property in accordance with the terms of this Agreement; (vii) no action, suit or other proceeding shall be pending which shall have otherwise been brought by any person or entity (other than Seller, Purchaser or Tenant) to restrain, prohibit or change in any material respect the purchase and sale of the Property in accordance with the terms of this Agreement; and (viii) all conditions precedent elsewhere set forth in this Agreement shall have been satisfied or waived.
10.4 In the event that any of the Seller Conditions shall not be satisfied as of the Closing Date, Purchaser may, at Purchaser’s option, adjourn the Closing Date on a one-time basis for a period not exceeding sixty (60) days to allow Purchaser additional time to satisfy Seller Conditions. Notwithstanding the foregoing, if Purchaser does not elect to adjourn the Closing Date as provided above or Purchaser adjourns the Closing Date but is still unable to satisfy Seller Conditions, then Seller shall have the right to either (i) terminate this Agreement by written notice to Purchaser on or before the Closing Date, in which event the Deposit shall be promptly returned to Purchaser and neither party shall have any further rights against the other except for obligations which expressly survive the termination of this Agreement, or (ii) on a one-time basis, adjourn the Closing Date for a period not exceeding thirty (30) days to allow Purchaser additional time to satisfy such Seller Conditions, or (iii) if the failure of any of the Seller Conditions to be satisfied is the result of an intentional act by Purchaser, Seller may exercise its remedies under Section 16.1 below. In any instance in which either Purchaser or Seller has the right to extend the Closing Date as set forth above in this paragraph, the Closing Date shall occur within five (5) business days following the date upon which the condition in question is satisfied, notwithstanding that the maximum number of days for such extension may be greater than the date which is five (5) business days following the satisfaction of such condition.terminated;
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Conditions to Obligations to Close. 10.1 In addition 7.1 Conditions to any other condition precedent or contingencies in favor Obligations of Purchaser as may be expressly set forth elsewhere in this Agreement, the Merger Subs and Nu Skin Enterprises. The obligations of Purchaser each Merger Sub and Nu Skin Enterprises to consummate the transactions contemplated herein shall to be performed by them in connection with the respective Closing are subject to the fulfillment satisfaction of the following conditions (the “Purchaser Conditions”), any of which may be waived by Purchaser in its sole and absolute discretion: (i) conditions:
7.1.1 the representations and warranties of Seller made herein the Merged Entities set forth in Section 4 above and the representations and warranties of the Stockholders set forth in Section 9 below shall be true and correct in all material respects as of the date made and shall remain and be true and correct as of the Closing Date in all material respects as though such representations and warranties were made at and as of the Closing Date, (ii) Seller Dates of the respective Mergers;
7.1.2 such Merged Entity and the Stockholders shall have delivered performed and complied with all of its or their respective covenants hereunder in all material respects through the Closing Dates for the respective Mergers;
7.1.3 such Merged Entity shall have procured all of the documents Third-Party and other items required pursuant to this Agreement governmental consents and Seller shall have performed all of its covenants, agreements and obligations hereunder, and at Closing, Seller shall be the sole fee owner approvals specified in Section 6.2 above;
7.1.4 except as set forth in Section 7.1.4 of the entirety of the Property; (iii) Seller shall have caused Tenant to execute and deliver the Lease in the form attached as Exhibit C-1Merged Entities Disclosure Schedule, with any blanks completedno action, dates inserted and other changes (if any) which are mutually agreed upon by Seller and Purchasersuit, which Lease shall provide, inter alia, that (a) the Lease is a net lease, (b) the base annual rental payable under the Lease for the first lease year is not less than $3,375,418.99 (or $3,820,375,000.00, if the Battery Storage Property is included in the Property as provided in Section 2.4 above); (c) the base annual rental under the Lease shall increase by three percent (3%) annually, and (d) the Lease is for a twenty (20) year initial lease term, with three 10-year renewal options; (iv) Seller shall be solvent and not in receivership, and shall not have committed any act of bankruptcy or have made or suffered a fraudulent conveyance; (v) no action or proceeding shall be pending or contemplated by or against Seller under the federal bankruptcy code or any state law for the relief of debtors or for the enforcement of the rights of creditors, and no attachment, execution, lien, or levy shall have attached to, threatened to be attached to, or have been issued with respect to Seller’s interest in any of the Property or any portion thereof (other than liens in existence as of the Effective Date and/or which are included in Seller’s Required Removal Items under this Agreement); (vi) the environmental, legal and physical condition of the Property on the Closing Date shall not be or have been materially and adversely impacted, changed or altered in any manner from as it existed on the expiration of the Inspection Period (and expressly excluding any impacts, changes or alterations caused solely by the acts of Purchaser); (vii) if requested by Purchaser, Purchaser’s receipt, no later than five (5) business days prior to the Closing, of the Tenant Executed Estoppel (as hereinafter defined), the SNDA (as hereinafter defined), that are satisfactory or deemed satisfactory to Purchaser; (ix) the state of title to the Property shall be as provided herein, and there shall be an unconditional and irrevocable agreement by the Title Company to issue the Title Policy; (x) delivery of possession of the Property to Purchaser subject only to the Permitted Exceptions and to the rights of Tenant under the Lease, as tenant only; (xi) no order or injunction of before any court or quasi-judicial or administrative agency of competent jurisdictionany federal, nor state, local, or foreign jurisdiction or before any statutearbitrator wherein an unfavorable injunction, rulejudgment, regulation or executive order, in effect as decree, ruling, or charge would (i) prevent consummation of the Closing shall restrain or prohibit the transfer of the Property in accordance with the terms of this Agreement; (xii) no action, suit or other proceeding shall be pending which shall have been brought by any person or entity (other than Seller, Purchaser or Tenant) to restrain, prohibit or change in any material respect the purchase and sale of the Property in accordance with the terms of this Agreement; and (xiii) all conditions precedent elsewhere set forth in this Agreement shall have been satisfied or waived.
10.2 In the event that any of the Purchaser Conditions shall not be satisfied respective Merger, as of the Closing Date, Seller may, at Seller’s option, adjourn the Closing Date on a one-time basis for a period not exceeding sixty (60) days to allow Seller additional time to satisfy Purchaser Conditions. Notwithstanding the foregoing, if Seller does not elect to adjourn the Closing Date as provided above or Seller adjourns the Closing Date but is still unable to satisfy Purchaser Conditions, then Purchaser shall have the right to either (i) terminate this Agreement contemplated by written notice to Seller on or before the Closing Date, in which event the Deposit shall be promptly returned to Purchaser and neither party shall have any further rights against the other except for obligations which expressly survive the termination of this Agreement, or (ii) on a one-time basiscause the respective Merger, adjourn the Closing Date for a period not exceeding thirty (30) days as contemplated by this Agreement, to allow Seller additional time to satisfy such Purchaser Conditionsbe rescinded following consummation, or (iii) close on affect adversely the purchase right of the Property without any abatement respective Merger Sub or reduction of Nu Skin Enterprises to operate the Purchase Price or other liability on the part of Seller, or (iv) if the failure of any of the Purchaser Conditions to be satisfied is the result of an intentional act by Seller, seek to enforce the sale of the Property by maintaining an action for specific performance of this Agreement. Seller’s extension right under this Section 10 shall be concurrent with, and shall not be cumulative of, any right of extension exercised by Seller pursuant to Section 4.1.3 hereof. In any instance in which either Purchaser or Seller has the right to extend the Closing Date as set forth above in this paragraph, the Closing Date shall occur within five (5) former business days following the date upon which the condition in question is satisfied, notwithstanding that the maximum number of days for such extension may be greater than the date which is five (5) business days following the satisfaction of such condition.Merged Entity;
10.3 In addition to any other condition precedent or contingencies in favor of Seller as may be expressly set forth elsewhere in this Agreement, the obligations of Seller to consummate 7.1.5 the transactions contemplated herein shall be subject have been approved by the Board of Directors and stockholders of each of the Merged Entities;
7.1.6 each Merged Entity shall have delivered to the fulfillment respective Merger Sub and to Nu Skin Enterprises a certificate to the effect that each of the following conditions specified in Sections 7.1.1 through 7.1.5 above are satisfied in all respects;
7.1.7 all applicable waiting periods (the “Seller Conditions”and any extensions thereof), any if any, under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or otherwise been terminated;
7.1.8 each Merger Sub and Nu Skin Enterprises shall have received from counsel to the respective Merged Entity opinions in form and substance as set forth in Exhibit "F" attached hereto, addressed to the respective Merger Sub and Nu Skin Enterprises and dated as of which may the Closing Date of the respective Merger;
7.1.9 all actions to be waived taken by Seller each Merged Entity in its connection with the consummation of the respective Merger contemplated hereby and all certificates, opinions, instruments, and other documents required to effect such Merger will be satisfactory in form and substance to the respective Merger Sub and Nu Skin Enterprises; and
7.1.10 each Merger Sub and Nu Skin Enterprises shall have completed their due diligence investigation of the respective Merged Entity, and the information gathered in such investigation shall be satisfactory to such Merger Sub and Nu Skin Enterprises, in their sole and absolute discretion: (i) . Any Merger Sub or Nu Skin Enterprises may waive any condition specified in this Section 7.1 if it executes a writing so stating at or prior to the Closing Date of the respective Merger.
7.2 Conditions to Obligations of the Merged Entities. The obligations of the Merged Entities to consummate the respective Merger, as contemplated in connection with the Closing of such Merger, is subject to satisfaction of the following conditions:
7.2.1 the representations and warranties of Purchaser made herein set forth in Section 5 above shall be true and correct in all material respects as of the date made and shall remain and be true and correct as of the Closing Date in all material respects as though such representations and warranties were made at and as of the Closing Date, (ii) Purchaser shall have delivered all Date of the documents respective Merger;
7.2.2 each Merger Sub and other items required pursuant to this Agreement and Purchaser Nu Skin Enterprises shall have performed and complied with all of its covenantstheir respective covenants hereunder in all material respects through the Closing Date of such Merger;
7.2.3 no action, agreements and obligations hereunder; (iii) Purchaser shall have executed and delivered the Lease; (iv) Purchaser shall be solvent and not in receivershipsuit, and shall not have committed any act of bankruptcy or have made or suffered a fraudulent conveyance; (v) no action or proceeding shall be pending or contemplated by or against Purchaser under the federal bankruptcy code or any state law for the relief of debtors or for the enforcement of the rights of creditors; (vi) no order or injunction of threatened before any court or quasi-judicial or administrative agency of competent jurisdictionany federal, nor state, local, or foreign jurisdiction or before any statutearbitrator wherein an unfavorable injunction, rulejudgment, regulation or executive order, in effect as of the Closing shall restrain decree, ruling, or prohibit the transfer of the Property in accordance with the terms of this Agreement; (vii) no action, suit or other proceeding shall be pending which shall have been brought by any person or entity (other than Seller, Purchaser or Tenant) to restrain, prohibit or change in any material respect the purchase and sale of the Property in accordance with the terms of this Agreement; and (viii) all conditions precedent elsewhere set forth in this Agreement shall have been satisfied or waived.
10.4 In the event that any of the Seller Conditions shall not be satisfied as of the Closing Date, Purchaser may, at Purchaser’s option, adjourn the Closing Date on a one-time basis for a period not exceeding sixty (60) days to allow Purchaser additional time to satisfy Seller Conditions. Notwithstanding the foregoing, if Purchaser does not elect to adjourn the Closing Date as provided above or Purchaser adjourns the Closing Date but is still unable to satisfy Seller Conditions, then Seller shall have the right to either charge would (i) terminate this Agreement prevent consummation of the respective Merger, as contemplated by written notice to Purchaser on or before the Closing Date, in which event the Deposit shall be promptly returned to Purchaser and neither party shall have any further rights against the other except for obligations which expressly survive the termination of this Agreement, or (ii) on cause such Merger to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
7.2.4 the Board of Directors and stockholders of each Merger Sub shall have approved the respective Merger, as contemplated in this Agreement;
7.2.5 each Merger Sub and Nu Skin Enterprises shall have delivered to the respective Merged Entity a one-time basiscertificate to the effect that each of the conditions specified in Section 7.2.1 through 7.2.4 above are satisfied in all respects;
7.2.6 each Merged Entity shall have received from counsel to the respective Merger Subs and Nu Skin Enterprises an opinion in form and substance as set forth in Exhibit "G" attached hereto, adjourn addressed to the respective Merged Entity and dated as of the Closing Date for a period not exceeding thirty (30) days to allow Purchaser additional time to satisfy such Seller Conditions, or (iii) if the failure of any of the Seller Conditions respective Merger;
7.2.7 all actions to be satisfied is taken by each of Nu Skin Enterprises and each Merger Sub in connection with the result consummation of an intentional act by Purchaserthe respective Merger contemplated hereby and all certificates, Seller opinions, instruments, and other documents required to effect such Merger will be satisfactory in form and substance to the respective Merged Entity; and
7.2.8 all applicable waiting periods (and any extensions thereof), if any, under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or otherwise been terminated. Each Merged Entity may exercise its remedies under waive any condition specified in this Section 16.1 below. In any instance in which either Purchaser 7.2 if it executes a writing so stating at or Seller has the right prior to extend the Closing Date as set forth above in this paragraph, of the Closing Date shall occur within five (5) business days following the date upon which the condition in question is satisfied, notwithstanding that the maximum number of days for such extension may be greater than the date which is five (5) business days following the satisfaction of such conditionrespective Merger.
Appears in 1 contract
Conditions to Obligations to Close. 10.1 In addition 8.1 Conditions to any other condition precedent or contingencies in favor Obligations of Purchaser as may be expressly set forth elsewhere in this Agreement, the BP Holdings and Nu Skin Enterprises. The obligations of Purchaser BP Holdings and Nu Skin Enterprises to consummate the transactions contemplated herein shall to be performed by them in connection with the Closing are subject to the fulfillment satisfaction of the following conditions (the “Purchaser Conditions”), any or all of which may be waived in writing by Purchaser BP Holdings and Nu Skin Enterprises, in its their sole and absolute discretion: (i) , prior to the Closing:
8.1.1 the representations and warranties of Seller made herein set forth in Section 5 above and Section 10 below that are qualified by materiality shall be true and correct in all material respects as of the date made at and shall remain and be true and correct as of the Closing Date and the representations and warranties set forth in Section 5 above and Section 10 below that are not qualified by materiality shall be true in all material respects as though such representations and warranties were made at and as of the Closing Date;
8.1.2 Big Planet, (ii) Seller Nu Skin USA, King, Doman, and Ricks shall have delivered p▇▇▇▇▇med and complied with all of their respective covenants hereunder in all material respects through the Closing Date;
8.1.3 Big Planet, Nu Skin USA, King, Doman, and Ricks shall have p▇▇▇▇▇ed all of the documents third-party and other items required pursuant to this Agreement governmental consents and Seller shall have performed all of its covenants, agreements and obligations hereunder, and at Closing, Seller shall be the sole fee owner of the entirety of the Property; (iii) Seller shall have caused Tenant to execute and deliver the Lease in the form attached as Exhibit C-1, with any blanks completed, dates inserted and other changes (if any) which are mutually agreed upon by Seller and Purchaser, which Lease shall provide, inter alia, that (a) the Lease is a net lease, (b) the base annual rental payable under the Lease for the first lease year is not less than $3,375,418.99 (or $3,820,375,000.00, if the Battery Storage Property is included in the Property as provided approvals specified in Section 2.4 7 above); (c) the base annual rental under the Lease shall increase by three percent (3%) annually;
8.1.4 no action, and (d) the Lease is for a twenty (20) year initial lease termsuit, with three 10-year renewal options; (iv) Seller shall be solvent and not in receivership, and shall not have committed any act of bankruptcy or have made or suffered a fraudulent conveyance; (v) no action or proceeding shall be pending or contemplated by or against Seller under the federal bankruptcy code or any state law for the relief of debtors or for the enforcement of the rights of creditorsor, and no attachment, execution, lien, or levy shall have attached toto Big Planet's Knowledge, threatened to be attached to, or have been issued with respect to Seller’s interest in any of the Property or any portion thereof (other than liens in existence as of the Effective Date and/or which are included in Seller’s Required Removal Items under this Agreement); (vi) the environmental, legal and physical condition of the Property on the Closing Date shall not be or have been materially and adversely impacted, changed or altered in any manner from as it existed on the expiration of the Inspection Period (and expressly excluding any impacts, changes or alterations caused solely by the acts of Purchaser); (vii) if requested by Purchaser, Purchaser’s receipt, no later than five (5) business days prior to the Closing, of the Tenant Executed Estoppel (as hereinafter defined), the SNDA (as hereinafter defined), that are satisfactory or deemed satisfactory to Purchaser; (ix) the state of title to the Property shall be as provided herein, and there shall be an unconditional and irrevocable agreement by the Title Company to issue the Title Policy; (x) delivery of possession of the Property to Purchaser subject only to the Permitted Exceptions and to the rights of Tenant under the Lease, as tenant only; (xi) no order or injunction of before any court or quasi-judicial or administrative agency of competent jurisdictionany federal, nor state, local, or foreign jurisdiction or before any statutearbitrator wherein an unfavorable injunction, rulejudgment, regulation or executive order, in effect as decree, ruling, or charge would (i) prevent consummation of the Closing shall restrain or prohibit the transfer of the Property in accordance with the terms of this Agreement; (xii) no action, suit or other proceeding shall be pending which shall have been brought by any person or entity (other than Seller, Purchaser or Tenant) to restrain, prohibit or change in any material respect the purchase and sale of the Property in accordance with the terms of this Agreement; and (xiii) all conditions precedent elsewhere set forth in this Agreement shall have been satisfied or waived.
10.2 In the event that any of the Purchaser Conditions shall not be satisfied as of the Closing Date, Seller may, at Seller’s option, adjourn the Closing Date on a one-time basis for a period not exceeding sixty (60) days to allow Seller additional time to satisfy Purchaser Conditions. Notwithstanding the foregoing, if Seller does not elect to adjourn the Closing Date as provided above or Seller adjourns the Closing Date but is still unable to satisfy Purchaser Conditions, then Purchaser shall have the right to either (i) terminate this Agreement transactions contemplated by written notice to Seller on or before the Closing Date, in which event the Deposit shall be promptly returned to Purchaser and neither party shall have any further rights against the other except for obligations which expressly survive the termination of this Agreement, or (ii) on a one-time basis, adjourn cause any of the Closing Date for a period not exceeding thirty (30) days transactions contemplated by this Agreement to allow Seller additional time to satisfy such Purchaser Conditionsbe rescinded following consummation, or (iii) close on the purchase except as disclosed in Section 8.1.4 of the Property without any abatement or reduction of Disclosure Schedule, affect adversely the Purchase Price or other liability on the part of Seller, or (iv) if the failure of any of the Purchaser Conditions to be satisfied is the result of an intentional act by Seller, seek to enforce the sale of the Property by maintaining an action for specific performance of this Agreement. Seller’s extension right under this Section 10 shall be concurrent with, and shall not be cumulative of, any right of extension exercised by Seller pursuant BP Holdings or Nu Skin Enterprises to Section 4.1.3 hereof. In any instance in which either Purchaser or Seller has operate the right to extend former business of Big Planet;
8.1.5 the Closing Date as set forth above in this paragraph, the Closing Date Reorganization shall occur within five (5) business days following the date upon which the condition in question is satisfied, notwithstanding that the maximum number of days for such extension may be greater than the date which is five (5) business days following the satisfaction of such condition.have been consummated;
10.3 In addition to any other condition precedent or contingencies in favor of Seller as may be expressly set forth elsewhere in this Agreement, the obligations of Seller to consummate 8.1.6 the transactions contemplated herein shall be subject to have been approved by the fulfillment Board of the following conditions (the “Seller Conditions”), any Directors and shareholders of which may be waived by Seller in its sole and absolute discretion: (i) the representations and warranties of Purchaser made herein shall be true and correct in all material respects as of the date made and shall remain and be true and correct as of the Closing Date in all material respects as though such representations and warranties were made at and as of the Closing Date, (ii) Purchaser Big Planet;
8.1.7 Big Planet shall have delivered all to BP Holdings and Nu Skin Enterprises a certificate to the effect that each of the documents conditions specified in Sections 8.1.1 through 8.1.6 above are satisfied in all respects;
8.1.8 all applicable waiting periods (and other items required pursuant to this Agreement and Purchaser shall have performed all of its covenants, agreements and obligations hereunder; (iiiany extensions thereof) Purchaser shall have executed and delivered the Lease; (iv) Purchaser shall be solvent and not in receivership, and shall not have committed any act of bankruptcy or have made or suffered a fraudulent conveyance; (v) no action or proceeding shall be pending or contemplated by or against Purchaser under the federal bankruptcy code Hart-Scott-Rodino ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇xpired or any state law for the relief of debtors or for the enforcement of the rights of creditors; (vi) no order or injunction of any court or administrative agency of competent jurisdiction, nor any statute, rule, regulation or executive order, in effect as of the Closing shall restrain or prohibit the transfer of the Property in accordance with the terms of this Agreement; (vii) no action, suit or other proceeding shall be pending which shall have otherwise been brought by any person or entity (other than Seller, Purchaser or Tenant) to restrain, prohibit or change in any material respect the purchase and sale of the Property in accordance with the terms of this Agreement; and (viii) all conditions precedent elsewhere set forth in this Agreement shall have been satisfied or waived.
10.4 In the event that any of the Seller Conditions shall not be satisfied as of the Closing Date, Purchaser may, at Purchaser’s option, adjourn the Closing Date on a one-time basis for a period not exceeding sixty (60) days to allow Purchaser additional time to satisfy Seller Conditions. Notwithstanding the foregoing, if Purchaser does not elect to adjourn the Closing Date as provided above or Purchaser adjourns the Closing Date but is still unable to satisfy Seller Conditions, then Seller shall have the right to either (i) terminate this Agreement by written notice to Purchaser on or before the Closing Date, in which event the Deposit shall be promptly returned to Purchaser and neither party shall have any further rights against the other except for obligations which expressly survive the termination of this Agreement, or (ii) on a one-time basis, adjourn the Closing Date for a period not exceeding thirty (30) days to allow Purchaser additional time to satisfy such Seller Conditions, or (iii) if the failure of any of the Seller Conditions to be satisfied is the result of an intentional act by Purchaser, Seller may exercise its remedies under Section 16.1 below. In any instance in which either Purchaser or Seller has the right to extend the Closing Date as set forth above in this paragraph, the Closing Date shall occur within five (5) business days following the date upon which the condition in question is satisfied, notwithstanding that the maximum number of days for such extension may be greater than the date which is five (5) business days following the satisfaction of such condition.terminated;
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