Conditions. (a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement. (b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed. (c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions: (1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares; (2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and (3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Banc of California, Inc.), Securities Purchase Agreement (Banc of California, Inc.), Securities Purchase Agreement (Banc of California, Inc.)
Conditions. The Company’s interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) The obligation shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Investor Company hereunder to consummate the Closing extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be subject released of and discharged from such obligations to the condition that all representations extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company’s interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company’s interest in the Facilities shall be leased as a whole or in undivided part and warranties and other statements the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall be true and correct as of extend beyond the date of this Agreement and the maturity date of the Closing Bonds or (except those representations iii) the Company’s interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and warranties (b) in the event that by their terms speak specifically as the assignee, lessee, purchaser or other transferee shall assume the obligations of the date Company under Section 5.01 hereof for the remaining term of this Agreement or some other date shall be true and correct as Agreement, to the extent of such date)assignment, except for such failures to be so true and correct (without giving effect to any qualification as to materiality lease, sale, transfer or Material Adverse Effect contained therein) as would not haveother disposition, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed be released from and discharged of all liability in all material respects all respect of its such obligations hereunder theretofore to be performed the extent so assumed (without giving effect but only to any qualification as to materiality or Material Adverse Effect contained thereinsuch extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the condition Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that since such rights, interests, assets and/or properties so described constitute facilities for the date hereof no Material Adverse Effect shall have occurred generation, transmission and/or distribution of electric energy and be continuing with respect stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to either the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the Company or aggregate principal amount of the Bonds then Outstanding and (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to consummate time, and, to the Closing extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be subject released from and discharged of all liability in respect of such obligations. Anything herein to the condition contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that all representations and warranties and other statements the proposed assignment, lease or sale will not impair the validity under the Act of the Investor shall be true Bonds and correct as will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the date Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the date of Trustee the Closing (except those representations and warranties agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that by their terms speak specifically as of the date of this Agreement such element or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Actunit, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investorinterest therein, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively shall no longer be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities be part of the Company outstanding on Facilities for the date purposes of the Closing (after giving effect to the purchase this Agreement. For purposes of the Investor Shares contemplated hereby); and
(3) the conditions set forth in this Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.7.01:
Appears in 3 contracts
Sources: Loan Agreement (Unisource Energy Corp), Loan Agreement (Tucson Electric Power Co), Loan Agreement (Unisource Energy Corp)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) The obligation shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Investor Company hereunder to consummate the Closing extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be subject released of and discharged from such obligations to the condition that all representations extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and warranties and other statements the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall be true and correct as of extend beyond the date of this Agreement and the maturity date of the Closing Bonds or (except those representations iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and warranties (b) in the event that by their terms speak specifically as the assignee, lessee, purchaser or other transferee shall assume the obligations of the date Company under Section 5.01 hereof for the remaining term of this Agreement or some other date shall be true and correct as Agreement, to the extent of such date)assignment, except for such failures to be so true and correct (without giving effect to any qualification as to materiality lease, sale, transfer or Material Adverse Effect contained therein) as would not haveother disposition, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed be released from and discharged of all liability in all material respects all respect of its such obligations hereunder theretofore to be performed the extent so assumed (without giving effect but only to any qualification as to materiality or Material Adverse Effect contained thereinsuch extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the condition Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that since such rights, interests, assets and/or properties so described constitute facilities for the date hereof no Material Adverse Effect shall have occurred generation, transmission and/or distribution of electric energy and be continuing with respect stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to either the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the Company or aggregate principal amount of the Bonds then Outstanding and (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to consummate time, and, to the Closing extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be subject released from and discharged of all liability in respect of such obligations. Anything herein to the condition contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that all representations and warranties and other statements the proposed assignment, lease or sale will not impair the validity under the Act of the Investor shall be true Bonds and correct as will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the date Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the date of Trustee the Closing (except those representations and warranties agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that by their terms speak specifically as of the date of this Agreement such element or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Actunit, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investorinterest therein, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively shall no longer be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities be part of the Company outstanding on Facilities for the date purposes of the Closing (after giving effect to the purchase this Agreement. For purposes of the Investor Shares contemplated hereby); and
(3) the conditions set forth in this Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.7.01:
Appears in 3 contracts
Sources: Loan Agreement (Tucson Electric Power Co), Loan Agreement (Tucson Electric Power Co), Loan Agreement (Tucson Electric Power Co)
Conditions. (a) The obligation of Backstop Parties’ obligations to purchase any securities pursuant to the Investor to consummate Basic Commitment and/or the Closing shall be Backstop Commitment are subject to the condition that all representations following conditions: (i) the execution and warranties delivery of mutually satisfactory definitive documentation among BFE Corp. and other statements the Backstop Parties which incorporates the terms set forth herein (the “Definitive Agreements”); (ii) the satisfaction or waiver by the Backstop Parties of the Company shall be true and correct as of conditions to the date of this Agreement and the date of the Closing (except those 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 for such failures Backstop Parties’ obligations to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to consummate the transactions contemplated by the Branch Purchase Agreement.
Definitive Agreements as may be agreed upon in the Definitive Documents; (biii) The obligation BFE Corp. shall be in compliance with its obligations under the Loan Agreement and all other transaction documents relating to the Bridge Loan in all material respects; (iv) there has not occurred any material adverse change, or any development involving a prospective material adverse change, since the date hereof in the condition, financial or otherwise, or in the earnings, business, operations or properties of BFE Corp. and its subsidiaries, taken as a whole (a “Material Adverse Change”); (v) there not having occurred after the date hereof at any time prior to the funding of the Company to consummate Basic Commitment and/or the Closing Backstop Commitment any material disruption or material adverse change in the financial, banking or capital markets that, in the commercially reasonable judgment of the Backstop Parties, would have a material adverse impact on the success of the Rights Offering; (vi) all required approvals and consents shall be subject to the condition that have been obtained; (vii) all representations and warranties and other statements of the Investor shall be made by BFE Corp. in this Letter Agreement being true and correct as of the date in all material respects; (viii) BFE Corp. shall be in compliance with all covenants and other provisions of this Letter Agreement in all material respects; (ix) the Cargill Acknowledgement Letter (as defined below) being in full force and the date of the Closing effect; (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(cx) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing Executive Management Waiver Agreements (as defined in the Branch Purchase Loan Agreement)) being in full force and effect; (xi) no actions, suits or proceedings shall be pending or threatened that challenge any Definitive Agreement, this Letter Agreement, the Loan Agreement, the Cargill Acknowledgement Letter or any related agreement; (xii) the Backstop Parties having been reasonably satisfied with (A) the Certificate of Designations setting forth the rights and preferences of the Series A Non-Voting Convertible Preferred Stock that reflects the terms set forth on Exhibit A hereto and other customary terms and provisions as determined by Greenlight in its reasonable discretion and (B) the amended and restated limited liability company agreement of the LLC setting forth the rights and preferences of the Preferred Membership Interests and, if applicable, the Class B Preferred Membership Interests, and other customary terms and provisions as determined by Greenlight in its reasonable discretion; (xiii) the receipt by the Backstop Parties of a legal opinion from Cravath, Swaine & ▇▇▇▇▇ LLP with respect to customary matters in a form satisfactory to Greenlight in its reasonable discretion; (xiv) BFE Corp. shall not have entered into any letter of intent, memorandum of understanding, agreement in principle or other agreement relating to any competing plan, proposal, offer or transaction with a third party other than Greenlight materially inconsistent with this Letter Agreement; and (xv) the Board of Directors of BFE Corp. shall have been satisfied or waivedadopted Section 16b-3 Resolutions related to the issuance to the Backstop Parties of Series A Non-Voting Convertible Preferred Stock, Preferred Membership Interests, Class B Preferred Membership Interests, Common Stock and warrants and the allocation among the Greenlight Parties, of the Backstop Commitment and any purchase of Class B Preferred Membership Interests, the form of which shall be satisfactory to Greenlight in its sole discretion.
Appears in 3 contracts
Sources: Rights Offering Letter Agreement (Greenlight Capital LLC), Rights Offering Letter Agreement (BioFuel Energy Corp.), Rights Offering Letter Agreement (BioFuel Energy Corp.)
Conditions. (a) The obligation Company, on its own initiative, shall not change the terms and conditions of any LBL Contract, other than for any changes that are required due to (i) changes in Applicable Law, (ii) the terms of the Investor LBL Contracts or (iii) the requirements of any Governmental Entity. If the Company’s liability under any of the LBL Contracts is changed because of changes made on or after the Inception Date in the terms and conditions of the LBL Contracts (including to consummate the Closing shall be subject any contract riders or endorsements thereto) that are required due to the condition that all representations reasons identified in clauses (i), (ii) or (iii) above, the Reinsurer will share in the change proportionately to the coinsurance share hereunder and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date Reinsurer will make all appropriate adjustments to amounts due each other under this Agreement. With respect to any change required due to the reasons identified in clauses (i) or (iii) above, the Company shall, to the extent practicable, prior to the effectiveness of any such change, promptly notify the Closing (except those 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 Reinsurer of such date)proposed change and afford the Reinsurer the opportunity, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementextent practicable, to object to such change under applicable administrative procedures (both formal and informal).
(b) The obligation Except as otherwise set forth or contemplated herein, including in paragraph (a) above, no changes, amendments or modifications made on or after the Inception Date of the Company terms and conditions of the LBL Contracts (including to consummate the Closing any contract riders or endorsements thereto) shall be subject covered hereunder unless made by the Reinsurer pursuant to the condition that all representations and warranties and other statements Administrative Services Agreement or made or consented to by the Company with the prior written approval of the Investor shall be true and correct as Reinsurer. In the event that any such changes, amendments or modifications are made or consented to in any LBL Contract by the Company without the prior written approval of the date of Reinsurer, this Agreement and the date of the Closing (except those representations and warranties that will cover Reinsured Risks incurred 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate under such LBL Contract as if the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state approved changes, amendments or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have modifications had not been satisfied or waivedmade.
Appears in 3 contracts
Sources: Reinsurance Agreement, Reinsurance Agreement (Allstate Corp), Stock Purchase Agreement (Allstate Corp)
Conditions. The obligations of Buyer to consummate the transactions provided for hereby are subject, in the discretion of Buyer, to the satisfaction of each of the following conditions, on or prior to the Closing Date, any of which may be waived by Buyer:
(a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties in Article III and other statements of the Company Article IV shall be true and correct when made and at and as of the date of this Agreement Closing Date as if such representations and the date of the Closing warranties were made at such time (except that those representations and warranties that by their terms speak specifically which are made as of the date of this Agreement or some other a specific date shall be true and correct only as of such date);
(b) Seller, except for such failures to be so true IHC and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed and satisfied in all material respects all of its obligations hereunder theretofore agreements and covenants required hereby to be performed or satisfied by them prior to or at the Closing Date;
(c) all Consents from any Person, including without giving effect limitation those set forth on Schedule 3.7(b), and all filings, registrations and notifications necessary to any qualification as to materiality or Material Adverse Effect contained therein); and permit the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to consummation of the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of Ancillary Agreements shall have been obtained or made with no material adverse conditions being imposed;
(d) no Person that is not a party to this Agreement (or an Affiliate thereof) shall have obtained a Court Order which makes the Closing (except those representations and warranties that transactions contemplated by their terms speak specifically as of the date of this Agreement or some other date the Ancillary Agreements illegal or otherwise prohibited;
(e) there shall not have occurred any event, change or condition that, individually or in the aggregate, has had or could reasonably be true and correct as of such date); and expected to have a Material Adverse Effect;
(f) the condition that the Investor Company shall have performed all capital and surplus of its obligations hereunder theretofore to be performed.no less than $21,300,000 under GAAP;
(cg) First Standard shall have entered into the Reinsurance Treaties as described in Section 6.13;
(h) Buyer and its Affiliates and Seller and its Affiliates, as applicable, shall have entered into a service agreement or agreements in form and substance reasonably satisfactory to each of Buyer and Seller;
(i) The obligation holders (other than IHC and its Affiliates) of each a majority of the Investor and shares of common stock of Buyer present in person or by proxy at the Company to consummate the Closing Buyer's Stockholders Meeting shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit have approved the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharesby this Agreement;
(2j) the purchase by the Investor The Company shall own directly all of the Investor Shares outstanding shares of capital stock of RAS and RAS shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities own directly all of the Company would be aggregated with the Investor’s securities outstanding shares of the Company for purposes capital stock of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)First Standard Associates Corp.; and
(3k) Seller, IHC, the conditions set forth in Section 10 of the Branch Purchase AgreementCompany and its Subsidiaries, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement)applicable, shall have been satisfied or waiveddelivered the documents required to be delivered by them pursuant to Section 9.1(a), in form and content reasonably satisfactory to Buyer.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Independence Holding Co), Stock Purchase Agreement (Softnet Systems Inc), Stock Purchase Agreement (Madison Investors Corp)
Conditions. A. In addition to Purchaser’s absolute right to terminate this Contract for any reason at any time during the Review Period, the obligation of Purchaser under this Contract to purchase the Property from Seller is subject to the satisfaction of each of the following conditions on or prior to the Closing Date, any of which conditions may be waived in whole or in part by Purchaser by written waiver at or prior to the Closing Date:
1. Title to the Real Property shall be good and marketable as required herein, free and clear of all liens and encumbrances and subject to no exceptions other than the Permitted Exceptions and the Escrow Agent shall be prepared to issue an owner’s title insurance policy pursuant to the Title Commitment insuring the title to the Real Property subject only to the Permitted Exceptions in the amount of the Purchase Price. For purposes of determining whether this Condition has been satisfied, it shall be assumed that as of the Closing Date: (a) The obligation all of Purchaser’s “Requirements” set forth in the Investor Title Commitment have been satisfied; and (b) the Escrow Agent’s willingness to consummate issue such owner’s title insurance policy shall satisfy the requirement that title to the Real Property shall be good and marketable.
2. Seller shall have performed, observed and complied with all covenants, agreements and conditions required by this Contract to be performed by, observed and complied with on its part either on or prior to the Closing shall be subject to the condition that all Date.
3. All of Seller’s representations and warranties and other statements of the Company contained herein shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement Closing Date and the date Seller will deliver to Purchaser at Closing a certificate to that effect.
4. The physical condition of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares Property shall not (i) require have materially changed since the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedEffective Date.
Appears in 3 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement, Purchase and Sale Agreement (Wheeler Real Estate Investment Trust, Inc.)
Conditions. 3.1 Completion of the Subscription shall be conditional upon the following conditions having been satisfied:
(a) The obligation the passing of an ordinary resolution by the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements independent shareholders of the Company shall be true and correct as at the general meeting of the date of this Agreement Company for approving the Specific Mandate and the date allotment and issue of the Closing New Shares by the Company in accordance with the Applicable Law (except those representations and warranties that by their terms speak specifically as including the GEM Listing Rules);
(b) the Listing Committee of the date Hong Kong Stock Exchange granting approval for the listing of, and permission to deal in, the New Shares on the Hong Kong Stock Exchange and such approval and permission remaining in full force and effect;
(c) the passing of this Agreement or some other date shall be true and correct as an ordinary resolution by the shareholders of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in at the general meeting of the Company for approving the increase of authorised share capital of the Company to HK$65,000,000 divided into 650,000,000 shares of HK$0.1 each;
(d) all material respects necessary governmental approvals, consents, filings and reports for the completion of the Subscription having been obtained or duly filed (as applicable) by the Company;
(e) all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); necessary governmental, shareholders’ and the condition that since third parties’ approvals, consents, filings and reports for the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either completion of the Subscription having been obtained or duly filed (xas applicable) by the Company or Subscriber; and
(yf) the Company after giving effect to the transactions contemplated by the Branch Purchase Acquisition Agreement having become unconditional in accordance with its terms (other than any condition relating to this Agreement having become unconditional).
3.2 The Company shall use all reasonable efforts to achieve satisfaction of the Conditions (a), (b), (c), (d) and (f) as soon as possible before the Long Stop Date, and the Subscriber shall use all reasonable efforts to achieve satisfaction of the Condition (e) as soon as possible before the Long Stop Date.
3.3 The conditions specified in clause 3.1 above are not capable of being waived by any of the parties hereto.
3.4 In the event that Completion does not take place by the Long Stop Date, the parties shall then consult each other and discuss a later date for the satisfaction of the Conditions and the Completion as the parties may agree in writing. In the event that the parties cannot agree to a later date, either party shall be entitled to terminate this Agreement by written notice to the other party and this Agreement and all rights and obligations of the parties hereunder shall cease and terminate save for accrued rights and obligations of the parties under this Agreement.
(b) The obligation 3.5 Each of the Company Parties shall, at the request of the relevant governmental authorities referred to consummate in clause 3.1 (the Closing Approval Authorities), furnish such information, supply such documents and do all such acts and things as may reasonably be required by such Approval Authorities in connection with the fulfillment of the Conditions in respect of such party, and each party shall be subject responsible for its own fees in relation thereto. At the request of a party, the other party shall update such party of the progress of the application for the approvals or consents from the Approval Authorities in relation to the condition that all representations and warranties and other statements of the Investor shall be true and correct Subscription as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically soon as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedpossible.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 2 contracts
Sources: Subscription Agreement (BIT Mining LTD), Subscription Agreement
Conditions. (a) The obligation respective obligations of the Investor parties to consummate the Closing shall be Subject Share Purchase are subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of fulfillment, prior to or concurrently with the Closing (except those representations and warranties that by their terms speak specifically as hereinafter defined), of each of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures following conditions:
(i) Any waiting period applicable to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; Subject Share Purchase under the condition that the Company HSR Act shall have performed in all material respects all of its obligations hereunder theretofore to be performed expired or been terminated; and
(without giving effect to any qualification as to materiality ii) No statute, rule, regulation, order, writ, injunction, judgment or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect decree shall have occurred and be continuing with respect to either (x) been enacted, promulgated, entered or enforced by any federal or state court or other Governmental Authority which has the Company effect of making illegal, impeding or (y) otherwise restraining or prohibiting the Company after giving effect to the transactions contemplated by the Branch Purchase AgreementSubject Share Purchase.
(b) The obligation obligations of CREC to purchase and pay for the Company to consummate the Closing shall be Aggregate Subject Shares are subject to the condition that all fulfillment, prior to or concurrently with the Closing, of each of the conditions set forth in Section 7.2(a) and (b) of the Merger Agreement and to each of the following additional conditions (any one or more of which may be waived, in whole in part, by CREC):
(i) Each of the representations and warranties and other statements of the Investor Shareholder Parties contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically Date as of the date of this Agreement or some other date shall be true and correct as of if made on such date); and the condition that the Investor and
(ii) The Shareholder Parties shall have performed and complied in all of its obligations hereunder theretofore material respects with all provisions, covenants and conditions contained in this Agreement required to be performedperformed or complied with by them prior to or on the Closing Date.
(c) The obligation obligations of the Shareholder Parties to sell and deliver the Subject Shares are subject to the fulfillment, prior to or concurrently with the Closing, of each of the Investor and following conditions (any one or more of which may be waived, in whole in part, by the Company to consummate Shareholder Parties, but only if all Shareholder Parties waive the Closing shall be subject condition with respect to the following additional conditions:Aggregate Subject Shares).
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities Each of the Company would representations and warranties of CREC contained in this Agreement shall be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor true and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date correct in all material respects as of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Date as if made on such date; and
(3ii) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), CREC shall have been satisfied performed and complied in all material respects with all provisions, covenants and conditions contained in this Agreement required to be performed or waivedcomplied with by it prior to or on the Closing Date.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Cavco Industries Inc), Stock Purchase Agreement (Janal LTD Partnership)
Conditions. (a) The obligation of Backstop Parties’ obligations to purchase any securities pursuant to the Investor to consummate Basic Commitment and/or the Closing shall be Backstop Commitment are subject to the condition that all representations following conditions: (i) the execution and warranties delivery of mutually satisfactory definitive documentation among BFE Corp. and other statements the Backstop Parties which incorporates the terms set forth herein (the “Definitive Agreements”); (ii) the satisfaction or waiver by the Backstop Parties of the Company shall be true and correct as of conditions to the date of this Agreement and the date of the Closing (except those 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 for such failures Backstop Parties’ obligations to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to consummate the transactions contemplated by the Branch Purchase Agreement.
Definitive Agreements as may be agreed upon in the Definitive Documents; (biii) The obligation BFE Corp. shall be in compliance with its obligations under the Loan Agreement and all other transaction documents relating to the Bridge Loan in all material respects; (iv) there has not occurred any material adverse change, or any development involving a prospective material adverse change, since the date hereof in the condition, financial or otherwise, or in the earnings, business, operations or properties of BFE Corp. and its subsidiaries, taken as a whole (a “Material Adverse Change”); (v) there not having occurred after the date hereof at any time prior to the funding of the Company to consummate Basic Commitment and/or the Closing Backstop Commitment any material disruption or material adverse change in the financial, banking or capital markets that, in the commercially reasonable judgment of the Backstop Parties, would have a material adverse impact on the success of the Rights Offering; (vi) all required approvals and consents shall be subject to the condition that have been obtained; (vii) all representations and warranties and other statements of the Investor shall be made by BFE Corp. in this Letter Agreement being true and correct as of the date in all material respects; (viii) BFE Corp. shall be in compliance with all covenants and other provisions of this Letter Agreement in all material respects; (ix) the Cargill Acknowledgement Letter (as defined below) being in full force and the date of the Closing effect; (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(cx) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing Executive Management Waiver Agreements (as defined in the Branch Purchase Loan Agreement)) being in full force and effect; (xi) no actions, suits or proceedings shall be pending or threatened that challenge any Definitive Agreement, this Letter Agreement, the Loan Agreement, the Cargill Acknowledgement Letter or any related agreement; (xii) the Backstop Parties having been reasonably satisfied with the Certificate of Designations setting forth the rights and preferences of the Series A Convertible Preferred Stock that reflects the terms set forth on Exhibit A hereto and other customary terms and provisions as determined by Greenlight in its reasonable discretion; (xiii) the receipt by the Backstop Parties of a legal opinion from Cravath, Swaine & ▇▇▇▇▇ LLP with respect to customary matters in a form satisfactory to Greenlight in its reasonable discretion; (xiv) BFE Corp. shall not have entered into any letter of intent, memorandum of understanding, agreement in principle or other agreement relating to any competing plan, proposal, offer or transaction with a third party other than Greenlight materially inconsistent with this Letter Agreement; and (xv) the Board of Directors of BFE Corp. shall have been satisfied or waivedadopted Section 16b-3 Resolutions related to the issuance to the Backstop Parties of Series A Convertible Preferred Stock, Common Stock and warrants, the form of which shall be satisfactory to Greenlight in its sole discretion.
Appears in 2 contracts
Sources: Loan Agreement (BioFuel Energy Corp.), Backstop Rights Offering Agreement (BioFuel Energy Corp.)
Conditions. (a) The obligation of Star to make its contributions at Closing to the Investor to consummate capital of the Closing Partnership provided for herein shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that performance 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed ▇▇▇▇▇ in all material respects of all of its obligations hereunder theretofore the agreements to be performed (without giving effect to any qualification as to materiality by it hereunder on or Material Adverse Effect contained therein); before the Closing Date, and the condition that since accuracy in all material respects of the date hereof no Material Adverse Effect representations in Exhibit B and to the following further conditions:
(a) ▇▇▇▇▇ shall have occurred conducted its business operations at the Theatre Properties in the ordinary course and be continuing with respect to either (x) in the Company or (y) same manner in which the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementsame have heretofore been conducted.
(b) The obligation After the date hereof, ▇▇▇▇▇ shall have incurred no expenses or obligations, without the consent of the Company to consummate the Closing shall be subject Star, relating to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed▇▇▇▇▇ Undeveloped Theatre Property.
(c) The obligation Star shall have received, from counsel to ▇▇▇▇▇, an opinion in the form of each of the Investor and the Company to consummate Exhibit E.
(d) There shall not be pending or threatened on the Closing shall be subject Date any action, suit or proceeding, whether administrative or judicial, seeking to enjoin, restrain, prohibit or invalidate the following additional conditions:
(1) no provision consummation of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby by this Agreement or prohibit which may adversely affect the Investor right of the Partnership directly or indirectly to lease, operate or control any or all of the Theatre Properties, nor shall there be in effect on the Closing Date any order, judgment or decree by any court or other governmental body enjoining, restraining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement or subjecting Star or the Partnership to any liability.
(e) Star shall have received a letter from owning ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇, dated as of the Closing Date, in form and substance reasonably satisfactory to the Star Partner, stating that each of ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ agrees to perform and be bound by the terms of this Agreement applicable to him or voting her, as if each was a signatory hereto.
(f) Star shall have received owner’s policies of title insurance, in the name of the Partnership at Star’s expense, on American Land Title Association Owner’s Form B (1987), including mechanic’s lien coverage and survey coverage, issued by a reputable title insurance company satisfactory to Star (the “Title Company”), dated the Closing Date in amounts reasonably acceptable to Star and reinsured by reputable title insurance companies (the “Reinsurance Companies”), reasonably satisfactory to Star in amounts reasonably acceptable to Star, which Reinsurance Companies each shall have entered into a direct access agreement with Star, with respect to the Theatre Properties, insuring the Partnership’s leasehold interest in such Theatre Properties, subject only to Permitted Encumbrances (including easements and restrictions of record which do not interfere with the use of any of the Investor Shares;
(2Theatre Properties) the purchase by the Investor of the Investor Shares shall not (i) require the Investor and to no other exceptions, whether standard, printed or any of its affiliates to file a prior notice under the Change in Bank Control Actotherwise, or otherwise seek prior approval or and containing non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor imputation endorsements and such other personsaffirmative insurance as Star may reasonably request.
(g) would represent more than 9.9% of any class of voting securities Star shall have obtained, at its expense, ALTA surveys reasonably satisfactory to Star, of the Company outstanding on Theatre Properties.
(h) ▇▇▇▇▇ shall have delivered to Star the date of Disclosure Schedules required to be delivered by ▇▇▇▇▇ hereunder and the Closing (after giving effect exceptions to the purchase representations and warranties of the Investor Shares contemplated hereby); and
(3) the conditions ▇▇▇▇▇ set forth in Section 10 such Disclosure Schedules shall be reasonably acceptable to Star. If Star does not accept any exception set forth in a proposed Disclosure Schedule received from ▇▇▇▇▇, Star shall object to such exception by written notice to ▇▇▇▇▇ within ten (10) days after its receipt of the Branch Purchase Agreementsuch Disclosure Schedule. If Star does not object to any exception within such period, other than the condition set forth in this Section 10.3(e10.1(i) of the Branch Purchase Agreement shall be waived with respect to the Company’s acceptance of the proceeds of the Acceptable Financing such exception.
(as defined in the Branch Purchase Agreement), i) There shall have been obtained any necessary consents to the assignment of the Leases to the Partnership, and any necessary waivers of radius restrictions in such Leases.
(j) ▇▇▇▇▇ shall have delivered to Star a letter dated as of the Closing Date, in form and substance reasonably satisfactory to Star, certifying that the conditions specified in this Section 11.1 have been satisfied or waived(other than any conditions waived in writing by Star).
(k) ▇▇▇▇▇ shall have obtained non-disturbance agreements in form and substance satisfactory to Star, from all mortgagees of the Theatre Properties included in the Contributed Assets.
Appears in 2 contracts
Sources: Partnership Agreement (LCE AcquisitionSub, Inc.), Partnership Agreement (Loews Mountainside Cinemas, Inc.)
Conditions. The Employer agrees:
(ai) The obligation With respect to the investment option of the Investor to consummate Plan that is funded under the Closing shall be subject Guaranteed Interest Option and to the condition extent that all representations the Plan provides for allocations to, and warranties transfers to and other statements from such option are to be made solely at the discretion of the Company shall be true individuals covered by the Plan, such allocations and correct as of the date of this Agreement and the date of the Closing (except those 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 for such failures transfers are to be so true and correct (without giving effect to any qualification as to materiality made in accordance with instructions by the Employer or Material Adverse Effect contained therein) as would not have, individually in Participant covered by the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore Plan. We are to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated given at least 60 days advance written notice by the Branch Purchase AgreementEmployer of any noncompliance with this condition.
(bii) The obligation Employer is to provide us with any amendment to the Plan or its investment policy, any communication to the Participants covered by the Plan concerning the Guaranteed Interest Option or the investment option of the Company Plan to consummate which it relates, or any change in the Closing shall manner in which the Plan is administered. Any such document is to be subject provided to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement us at least 60 days before its effective date. We may also request, and the date Employer will thereupon provide, any other information that we reasonably determine would bear upon the flow of funds to and from the Closing (except those representations and warranties that by their terms speak specifically as of Guaranteed Interest Option. If the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not conditions stated in (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; and (ii) require above are not complied with or, if the Investor Employer fails to remit Contributions in accordance with Part III on "Contributions, Allocations and Discontinuance" or if we determine and so notify the Employer by written notice that an amendment to the Plan, its investment policy, or any change in the manner in which the Plan is administered would materially and adversely affect the flow of its affiliates funds to become a bank holding company; or (iii) cause from the InvestorGuaranteed Interest Option, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or then we will have the power right to:
1. decline further requests for transfers to vote securities which (assumingor from the Guaranteed Interest Option; and/or
2. deem that a discontinuance of Contributions has occurred under the section, for this purpose only, full conversion and/or exercise "Discontinuance of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedContributions".
Appears in 2 contracts
Sources: Group Flexible Premium Deferred Variable Annuity Contract (Separate Account a of Axa Equitable Life Insurance Co), Group Annuity Contract (Separate Account a of Equitable Life Assu Soc of the Us)
Conditions. Notwithstanding any other provision, as a condition precedent to each Closing (a) The obligation defined below), all of the Investor following conditions must be satisfied:
1. All documents, instruments and other writings required to consummate be delivered by Company to Purchaser pursuant to any provision of this Agreement or in order to implement and effect the Closing shall be subject transactions contemplated herein have been fully executed and delivered, including without limitation those enumerated in Section II.B above;
2. The Common Stock is listed for and currently trading on the Trading Market, Company is in compliance with all requirements to maintain listing on the Trading Market, and there is no notice of any suspension or delisting with respect to the condition that all representations and warranties and other statements trading of the shares of Common Stock on such Trading Market (other than with respect to such notices and matters as have been publicly disclosed by the Company shall be true and correct as of prior to the date of this Agreement and the date of the Closing (except those Agreement);
3. The representations and warranties that by their terms speak specifically as of the date of Company set forth in this Agreement or some other date shall be are true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all as if made on such date;
4. No material breach or default has occurred under any Transaction Document or any other agreement with Purchaser; 5. Company has the number of its obligations hereunder theretofore duly authorized shares of Common Stock reserved for issuance as required pursuant to be performed (without giving the terms of this Agreement; and
6. There is not then in effect to any qualification as to materiality law, rule or Material Adverse Effect contained therein); and regulation prohibiting or restricting the condition that since transactions contemplated in any Transaction Document, or requiring any consent or approval which will not have been obtained, nor is there any pending or threatened proceeding or investigation which may have the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company effect of prohibiting or (y) the Company after giving effect to adversely affecting any of the transactions contemplated by this Agreement; no statute, rule, regulation, executive order, decree, ruling or injunction will have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits the Branch Purchase transactions contemplated by this Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation , and no judgmentactions, injunctionsuits or proceedings will be in progress, order pending or, to Company's knowledge threatened, by any person other than Purchaser or decree shall any Affiliate of Purchaser, that seek to enjoin or prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Ascent Solar Technologies, Inc.), Securities Purchase Agreement (Ascent Solar Technologies, Inc.)
Conditions. The obligations of the Initial Purchasers to purchase the Notes under this Agreement are subject to the performance by each of the Company and each of the Guarantors of their respective covenants and obligations hereunder and the satisfaction of each of the following conditions:
(a) The obligation All of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company and the Subsidiaries contained in this Agreement and in each of the Transaction Documents shall be true and correct as of the date of this Agreement hereof and the date of at the Closing (Date, except those to the extent that the failure of such 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or “material,” “materiality,” “Material Adverse Effect contained thereinEffect” or any similar terms, qualifications or limitations to such representations and warranties) as to be true or correct individually or in the aggregate would not havereasonably be expected to have a Material Adverse Effect. On or prior to the Closing Date, the Company and each other party to the Transaction Documents (other than the Initial Purchasers) shall have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Transaction Documents (other than conditions to be satisfied by such other parties, which the failure to so satisfy would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; ).
(b) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the condition Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Transaction Documents. No stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company, be pending or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Transaction Documents. No Proceeding shall be pending or, to the knowledge of the Company, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Pricing Disclosure Package and the Final Offering Memorandum, there shall not have been any event that would have a Material Adverse Effect.
(e) The Notes shall (i) have been designated PORTAL securities in accordance with the rules and regulations adopted by the Financial Industry Regulatory Authority relating to trading in the PORTAL market, and (ii) be eligible for clearance and settlement through DTC.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(g) The Initial Purchasers shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (1) the Chief Executive Officer of the Company and (2) the Chief Financial Officer of the Company, on behalf of the Company, to the effect that (a) the representations and warranties set forth in Section 4 hereof and in each of the Transaction Documents are true and correct in all respects, except to the extent that the Company shall have performed in all material respects all failure of its obligations hereunder theretofore to be performed such representations and warranties (without giving effect to any qualification as to materiality or “material,” “materiality,” “Material Adverse Effect contained therein); Effect” or any similar terms, qualifications or limitations to such representations and warranties) to be true or correct individually or in the condition that aggregate would not reasonably be expected to have a Material Adverse Effect, with the same force and effect as though expressly made at and as of the Closing Date, (b) the Company has performed and complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect shall have occurred Effect, (d) since the date of the most recent financial statements in the Pricing Disclosure Package and be continuing with respect the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), other than as described in the Pricing Disclosure Package and the Final Offering Memorandum or contemplated hereby, neither the Company nor any Subsidiary of the Company has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to either the Company and the Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long- term indebtedness of the Company or any Subsidiary of the Company that is material to the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole, and (e) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company and each Guarantor, certifying such matters as the Initial Purchasers may reasonably request covering such matters as are customarily covered in such certificates.
(iii) a perfection certificate, dated the Closing Date, executed by an officer of the Company and each of the Guarantors substantially in the form previously provided to counsel of Company.
(iv) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in the form previously approved by the Initial Purchasers or its counsel.
(v) the opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(vi) the opinion of ▇▇▇▇▇ ▇▇▇▇▇ Heuer & ▇▇▇▇▇, P.C., local Michigan counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers.
(vii) the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, local Indiana counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers.
(viii) the opinion of ▇▇▇▇▇, Brown, Koehn, Shors & ▇▇▇▇▇▇▇, P.C., local Iowa counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers.
(ix) the opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L.P., local Minnesota counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers.
(x) the Company or (y) the Company after giving effect opinion of Proskauer Rose LLP, counsel to the transactions contemplated by Initial Purchasers, dated the Branch Purchase AgreementClosing Date, in form satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(bxi) a copy of a payoff letter or other evidence of repayment in form and substance reasonably satisfactory to the Initial Purchasers from the administrative agent under the Existing Credit Facility, releasing the Company and the Guarantors from all obligations under the Existing Credit Facility and any guarantees thereunder, which letter shall become effective immediately following the application of the net proceeds of the Offering as set forth under the “Use of Proceeds” section in the Pricing Disclosure Package and Final Offering Memorandum.
(h) The obligation Initial Purchasers shall have received on the date hereof and on the Closing Date a certificate from the Chief Financial Officer of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct Company, dated as of the date hereof and thereof, substantially in the form of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedExhibit A attached hereto.
(ci) The obligation of each of the Investor and the Company to consummate the Closing Initial Purchasers shall be subject to the following additional conditions:
have received (1A) no provision of any applicable law or regulation and no judgmenta customary comfort letter from PricewaterhouseCoopers LLP, injunctionindependent auditors, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance , dated as of the proceeds date hereof, in form and substance satisfactory to the Initial Purchasers and its counsel, with respect to the financial statements and certain financial information contained in the Pricing Disclosure Package and the Final Offering Memorandum and (B) a customary bring-down comfort letter from PricewaterhouseCoopers LLP, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers and its counsel, to the effect that PricewaterhouseCoopers LLP reaffirms the statements made in its letter furnished pursuant to clause (A) with respect to the financial statements and certain financial information contained in the Pricing Disclosure Package and the Final Offering Memorandum.
(j) Each of the Acceptable Financing (as defined in the Branch Purchase Agreement), Transaction Documents shall have been executed and delivered by all parties thereto, and the Initial Purchasers shall have received a fully executed original of each of the Transaction Documents.
(k) The terms of each Transaction Document shall conform in all material respects to the description thereof in the Pricing Disclosure Package and the Final Offering Memorandum.
(l) The Collateral Agent shall have received (with a copy for the Initial Purchasers) on the Closing Date:
(i) appropriately completed copies of Uniform Commercial Code financing statements naming the Company and each Guarantor as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Security Agreement;
(ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any Security Agreement previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company or any Guarantor (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Documents, other than such financing statements that evidence Permitted Liens);
(iv) such other approvals, opinions, or documents as the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Collateral Agent; and
(v) the Collateral Agent and its counsel shall be satisfied that (A) the Lien granted to the Collateral Agent, for the benefit of the Secured Parties in the collateral described above is of the priority described in the Pricing Disclosure Package and the Final Offering Memorandum; and (B) no Lien exists on any of the collateral described above other than the Lien created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Documents, in each case subject to the Permitted Liens.
(m) All Uniform Commercial Code financing statements or waivedother similar financing statements and Uniform Commercial Code Form UCC-3 termination statements required pursuant to clause (l)(i) and (l)(ii) above shall have been delivered to CT Corporation System or another similar filing service company acceptable to the Collateral Agent.
Appears in 2 contracts
Sources: Purchase Agreement (CPM Holdings, Inc.), Purchase Agreement (CPM Holdings, Inc.)
Conditions. As a material inducement for the Purchaser to enter into this Agreement, Seller hereby makes the following acknowledgments and representations:
(a) The obligation of That, it owns the Investor to consummate the Closing shall be subject tradenames to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase AgreementProducts described herein.
(b) The obligation execution and delivery of this Agreement, the consummation of the Company transactions herein contemplated and compliance with the terms of the Agreement will not result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, other agreement or instrument to consummate which the Closing shall be subject Seller is a party or by which it or its assets are bound; or to the condition that all representations best of Seller's knowledge, any applicable regulation, judgment, order or decree of any governmental instrumentality or court, domestic or foreign, having jurisdiction over the Seller or its properties;
(c) There are presently no contingent liabilities, factual circumstances, threatened or pending litigation, contractually assumed obligations or unasserted possible claims which might result in a material adverse change with respect to the premises being purchased herein;
(d) The execution, delivery and warranties and other statements of the Investor shall be true and correct as of the date performance of this Agreement and the date transactions contemplated hereby do not require the consent, authority or approval of any other person or entity except such as have been obtained;
(e) To the best of Sellers knowledge and belief no transactions have been entered into either by or on behalf of the Closing Seller, other than in the ordinary course of business nor have any acts been performed which would adversely affect goodwill with respect to the premises being purchased herein;
(except those representations f) The entering into of this Agreement and warranties that the performance thereof has been duly and validly authorized by their terms speak specifically all required corporate action, and does not require any consents, corporate, governmental or otherwise, other than such as have been unconditionally obtained;
(g) The trademark/tradename, documentation, a copy of which is annexed hereto and made a part hereof as Exhibit A accurately reflects the current ownership and registration of the Seller and no additional information is required in order to render the information so provided not misleading;
(h) As of the date of the execution of this written Agreement or some other date no events have occurred nor have any facts been discovered which materially alter in detrimental manner the trademarks of the Seller;
(i) The foregoing representations and warranties do not contain any untrue statements nor do they fail to disclose information necessary in order to render the information provided not misleading;
(j) The foregoing representations and warranties shall also be true true, complete and correct accurate on and as of the Closing Date, as if initially provided on such date); , the Seller hereby covenanting and agreeing to do all things required therefore (including within such obligation the condition that abstinence from any actions, the Investor shall have performed all performance of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting which would render any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Actforegoing representations and warranties inaccurate, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date as of the Closing (after giving effect to the purchase of the Investor Shares contemplated herebyDate); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.;
Appears in 2 contracts
Sources: License Agreement (Hispanica International Delights of America, Inc.), License Agreement (Hispanica International Delights of America, Inc.)
Conditions. Notwithstanding anything in this Agreement or the Plan to the contrary: (a) The obligation the Company may, if it shall determine it necessary or desirable for any reason, at the time of award of any Option or the issuance of any shares of Common Stock pursuant to any Option, require the recipient of the Investor to consummate the Closing shall be subject Option, as a condition to the receipt thereof or to the receipt of shares of Common Stock issued pursuant thereto, to deliver to the Company a written representation of present intention to acquire the Option or the shares of Common Stock issued pursuant thereto for its, his or her own account for investment and not for distribution; and (b) if at any time the Company further determines, in its sole discretion, that the listing, registration or qualification (or any updating of any such document) of any Option or the shares of Common Stock issuable pursuant thereto is necessary on any securities exchange or under any federal or state securities or blue sky law, or that the consent or approval of any governmental regulatory body is necessary or desirable as a condition that all representations and warranties and of, or in connection with the award of any Option, the issuance of shares of Common Stock pursuant thereto, or the removal of any restrictions imposed on such shares, such Option shall not be awarded or such shares of Common Stock shall not be issued or such restrictions shall not be removed, as the case may be, in whole or in part, unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Company. Notwithstanding any other statements provision of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of Plan, this Agreement or some any other date shall agreements entered into pursuant to the Plan, the Company will not be true required to issue any shares of Common Stock under this Agreement or the Plan, and correct as a Participant may not sell, assign, transfer or otherwise dispose of such date), except for such failures to be so true and correct (without giving effect shares of Common Stock issued pursuant to any qualification as to materiality Options granted under this Agreement or Material Adverse Effect contained thereinthe Plan, unless (a) as would not have, individually there is in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) such shares a registration statement under the Company Securities Act, and any applicable state or (y) foreign securities laws or an exemption from such registration under the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
Securities Act and applicable state or foreign securities laws, and (b) there has been obtained any other consent, approval or permit from any other regulatory body which the Administrator, in its sole discretion, deems necessary or advisable. The obligation Company may condition such issuance, sale or transfer upon the receipt of any representations or agreements from the parties involved, and the placement of any legends on certificates representing shares of Common Stock, as may be deemed necessary or advisable by the Company in order to comply with such securities law or other restrictions. The Administrator may restrict the rights of Participants to the extent necessary to comply with Section 16(b) of the Exchange Act, the Code or any other applicable law or regulation. The grant of an Option pursuant to this Agreement or the Plan shall not limit in any way the right or power of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement make adjustments, reclassifications, reorganizations or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all changes of its obligations hereunder theretofore capital or business structure or to be performed.
(c) The obligation of each of the Investor and the Company merge, exchange or consolidate or to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law dissolve, liquidate, sell or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor transfer all or any part of its affiliates to file a prior notice under the Change in Bank Control Act, business or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedassets.
Appears in 2 contracts
Sources: Non Qualified Stock Option Agreement (Global Pari-Mutuel Services, Inc.), Option Agreement (Global Pari-Mutuel Services, Inc.)
Conditions. (a) SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. The obligation respective obligations of each party to effect the Investor to consummate the Closing Merger shall be subject to the condition that all representations and warranties and other statements fulfillment at or prior to the Closing Date of the Company shall be true and correct as of the date of following conditions:
(a) this Agreement and the date transactions contemplated hereby shall have been approved and adopted by the requisite vote of the Closing (except those representations and warranties that by their terms speak specifically as stockholders of the date of this Agreement or some other date shall be true Company and correct as of such date), except for such failures to be so true Parent under applicable law and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.applicable listing requirements;
(b) The obligation the shares of Parent Common Stock issuable in the Company Merger and those to consummate be reserved for issuance upon exercise of stock options or warrants or the Closing shall be subject to the condition that all representations and warranties and other statements conversion of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor convertible securities shall have performed all of its obligations hereunder theretofore to be performed.been authorized for listing on the Nasdaq National Market;
(c) The obligation of each the waiting period applicable to the consummation of the Investor and Merger under the Company to consummate the Closing HSR Act shall be subject to the following additional conditions:have expired or been terminated;
(1d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no provision preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any applicable law or regulation and no judgment, such injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shareslifted);
(2f) the purchase no statute, rule or regulation shall have been enacted by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require government or governmental agency in the Investor or any of its affiliates to become a bank holding company; or (iii) cause United States which would prevent the Investor, together with any other person whose securities consummation of the Company would be aggregated with Merger or make the Investor’s securities of Merger illegal;
(g) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Company for purposes of any bank regulation or lawClosing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, to collectively be deemed to own, control or have the power to vote securities which (assuming, effect that the Merger will qualify for a pooling of interests accounting treatment if consummated in accordance with this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Agreement; and
(3h) the conditions set forth in Section 10 each of the Branch Purchase Agreementparties to the Agreement shall have received a letter dated the Closing Date, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect addressed to the Company’s acceptance , from Ernst & Young, LLP regarding such firm's concurrence with the Company's management's conclusions that no conditions exist related to the Company that would preclude the Parent's accounting for the Merger with the Company as a pooling of the proceeds of the Acceptable Financing (as defined interests under Accounting Principles Board Opinion No. 16 if closed and consummated in the Branch Purchase accordance with this Agreement), shall have been satisfied or waived.
Appears in 2 contracts
Sources: Merger Agreement (Allied Waste Industries Inc), Merger Agreement (Allied Waste Industries Inc)
Conditions. (a) The obligation obligations of the Investor Sellers and Purchaser to consummate the Closing transactions contemplated by this Agreement shall be subject to the condition that all representations and warranties and other statements satisfaction or waiver, on or before the Closing Date, of the Company shall be true following conditions:
(i) All waiting periods (and correct as of the date of this Agreement and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinextension thereof) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect under laws applicable to the transactions contemplated by this Agreement shall have expired or been earlier terminated.
(ii) There shall be no injunction, restraining order or decree of any nature of any court or governmental authority that is in effect that restrains or prohibits the Branch Purchase consummation of the transactions contemplated by this Agreement or imposes conditions on such consummation not otherwise provided for herein.
(iii) Neither Purchaser nor any Seller shall have been advised by any United States federal government agency (which advisory has not been officially withdrawn on or prior to the Closing Date) that such government agency is investigating the transactions contemplated by this Agreement to determine whether to file or commence any litigation that seeks or would seek to enjoin, restrain or prohibit the consummation of the transactions contemplated by this Agreement. In the event any of the above conditions is not satisfied on or before the Closing, either Forestar Petroleum, Forestar (USA) or Purchaser will have the right, exercisable at its sole election, to terminate this Agreement by delivering written notice to the other Parties before the Closing, whereupon Escrow Agent will return the ▇▇▇▇▇▇▇ Money to Purchaser, and the Parties will have no further rights or obligations hereunder (except as otherwise expressly provided herein).
(b) The obligation Unless waived by Purchaser, in addition to any other conditions set forth in this Agreement, the obligations of Purchaser under this Agreement are expressly made subject to the fulfillment in all respects of the following conditions precedent:
(i) the truth and accuracy as of the Closing Date, in all material respects, of each and every warranty and representation herein made by any Seller;
(ii) Each Seller’s timely performance of and compliance with, in all material respects, each and every term, condition, agreement, restriction and obligation to be performed and complied with by such Seller under this Agreement;
(iii) The aggregate acreage of all Title Objection Property, Title Failure Property and Environmental Property shall not exceed twenty percent (20%) of the acreage of the Timberlands;
(iv) Purchaser’s receipt of a binding commitment from the Title Company to issue a title insurance policy insuring Purchaser’s title to the Property following the Closing, subject only to the Permitted Encumbrances; and
(v) Sellers’ obtaining of all corporate approvals, consents and authorizations as may be required for Sellers to consummate the Closing transaction contemplated by this Agreement. In the event any of the above conditions is not satisfied on or before the Closing, Purchaser will have the right, exercisable at Purchaser’s sole election, to exercise the remedies described in Section 15(b). Notwithstanding the foregoing sentence, in the event of either Seller’s failure to fulfill any condition precedent set forth in Section 14(b)(ii), Purchaser shall be subject provide written notice to such Seller and such Seller shall have seven (7) days from receipt of such notice to fulfill the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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 dateprecedent before Purchaser may exercise any remedies described in Section 15(b); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation Unless waived by a Seller, the obligations of each of the Investor and the Company to consummate the Closing shall be such Seller under this Agreement are expressly made subject to the fulfillment in all respects of the following additional conditionsconditions precedent:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2i) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor truth and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date accuracy as of the Closing (after giving effect to the purchase Date, in all material respects, of the Investor Shares contemplated hereby)each and every warranty and representation herein made by Purchaser; and
(3ii) Purchaser’s timely performance of and compliance with, in all material respects, each and every term, condition, agreement, restriction and obligation to be performed and complied with by Purchaser under this Agreement.
(iii) The aggregate acreage of all Title Objection Property shall not exceed ten percent (10%) of the acreage of the Timberlands In the event any of the above conditions is not satisfied on or before the Closing, either Seller will have the right, exercisable at such Party’s sole election, to exercise the remedies described in Section 15(a), provided that if either Seller elects to exercise such remedy, the other Seller shall be deemed to have made an identical election. Notwithstanding the foregoing sentence, in the event of Purchaser’s failure to fulfill any condition precedent set forth in Section 10 14(c)(i) or (ii), Sellers shall provide written notice to Purchaser and Purchaser shall have seven (7) days from receipt of the Branch Purchase Agreement, other than such notice to fulfill the condition set forth precedent before Sellers may exercise any remedies described in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement15(c), shall have been satisfied or waived.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Forestar Group Inc.), Purchase and Sale Agreement (Forestar Group Inc.)
Conditions. (a) The obligation obligations of the Investor Debt Holders to consummate exchange MMC Debt Obligations for Shares at the Closing shall be subject to the condition that all satisfaction (or waiver) of the following conditions:
(i) the Private Letter Ruling (as defined in the Form of Separation and Distribution Agreement filed as Exhibit 10.3 to the Registration Statement) shall remain in full force and effect and shall not have been revoked in whole or in part as of the applicable Closing Date;
(ii) no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, or other legal restraint or prohibition shall be in effect preventing the transactions contemplated to occur at the Closing;
(iii) (A) the representations and warranties and other statements of the Company MMC in this Agreement shall be true and correct in all respects on and as of the date of this Agreement Closing Date, with the same effect as if made on the applicable Closing Date, and (B) MMC shall have complied with all the date of agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the applicable Closing Date;
(except those iv) (A) the representations and warranties that by their terms speak specifically as of the date of MMI in this Agreement or some other date shall be true and correct in all respects on and as of such date)the applicable Closing Date, except for such failures to be so true with the same effect as if made on the applicable Closing Date, and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinB) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company MMI shall have performed in complied with all material respects the agreements and satisfied all of the conditions on its obligations hereunder theretofore part to be performed or satisfied at or prior to the applicable Closing Date;
(without giving v) the Underwriting Agreement shall have been duly executed and delivered and shall remain in full force and effect and the conditions to any qualification the obligations of the Underwriters to purchase and pay for the applicable Shares as set forth in the Underwriting Agreement shall have been satisfied or waived (other than those conditions that by their nature cannot be satisfied prior to materiality or Material Adverse Effect contained thereinthe applicable closing pursuant to the Underwriting Agreement); and the condition that since the date hereof no Material Adverse Effect and
(vi) MMC shall have occurred furnished to each Debt Holder a properly completed and be continuing with respect to either executed certification of non-foreign status substantially in the form set forth in Treasury Regulations Section 1.1445-2(b)(2)(iv). In the event that any of the conditions set forth in this clause (xa) the Company shall not have been fulfilled (or (y) the Company after giving effect to the transactions contemplated waived by the Branch Purchase AgreementDebt Holders) on the Closing Date, this Agreement may be terminated by the Debt Holders by delivering a written notice of termination to MMC and MMI.
(b) The obligation obligations of the Company MMC to consummate exchange Shares for MMC Debt Obligations at the Closing shall be subject to the condition that all satisfaction (or waiver) of the following conditions:
(i) (A) the representations and warranties and other statements of the Investor each Debt Holder in this Agreement shall be true and correct in all respects on and as of the date of this Agreement applicable Closing Date, with the same effect as if made on the applicable Closing Date, and (B) each Debt Holder shall have complied with all the date of agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the applicable Closing Date;
(except those representations ii) the Private Letter Ruling shall remain in full force and warranties that by their terms speak specifically effect and shall not have been revoked in whole or in part as of the date applicable Closing Date;
(iii) no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any federal, state, local or foreign government or any court of this Agreement competent jurisdiction, administrative agency or some commission or other date governmental authority or instrumentality, domestic or foreign, or other legal restraint or prohibition shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit in effect preventing the transactions contemplated hereby or prohibit to occur at the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Closing; and
(3iv) the Underwriting Agreement shall have been duly executed and delivered and shall remain in full force and effect and the conditions to the obligations of the Underwriters to purchase and pay for the applicable Shares as set forth in the Underwriting Agreement shall have been satisfied or waived (other than those conditions that by their nature cannot be satisfied prior to the applicable closing pursuant to the Underwriting Agreement). In the event that any of the conditions set forth in Section 10 this clause (b) shall not have been fulfilled (or waived by MMC) on the Closing Date, this Agreement may be terminated by MMC by delivering a written notice of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect termination to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedDebt Holders and MMI.
Appears in 2 contracts
Sources: Debt for Equity Exchange Agreement (Marcus & Millichap, Inc.), Debt for Equity Exchange Agreement (Marcus & Millichap, Inc.)
Conditions. (a) The obligation obligations of the Investor Company and the Backstop Purchaser to consummate the Closing transactions contemplated hereby shall be subject to the condition that all satisfaction prior to the Closing of each of the following conditions (which may be waived in whole or in part by the Company or the Backstop Purchaser, as the case may be, in its or their sole discretion, except as set forth in subsection (b) below):
(i) The Registration Statement shall have been declared effective by the SEC and shall continue to be effective and no stop order shall have been entered by the SEC with respect thereto, and no proceedings therefore will have been initiated or, to the knowledge of the Company, threatened by the SEC, and any request on the part of the SEC for additional information will have been complied with.
(ii) The representations and warranties of each party in Sections 3 and other statements 4 are true and correct in all material respects as of the Company Closing Date, as if made on such date (except for representations and warranties made as of a specified date, which shall be true and correct in all material respects as of such specified date), nor shall there have occurred any breach of any covenant of the Company set forth in Section 5 hereof.
(iii) The Rights Offering shall have been conducted in all material respects in accordance with this Agreement.
(iv) All material governmental and third-party notifications, filings, consents, waivers, and approvals required for the consummation of the transactions contemplated by this Agreement, including the Rights Offering, shall have been made or received.
(v) No action shall have been taken, no statute, rule, regulation, or order shall have been enacted, adopted, or issued by any federal, state, or foreign governmental or regulatory authority, and no judgment, injunction, decree, or order of any federal, state, or foreign court shall have been issued that, in each case, prohibits the implementation of the Rights Offering, and the issuance and sale of Common Stock in the Rights Offering, or materially impairs the benefit of implementation thereof, and no action or proceeding by or before any federal, state, or foreign governmental or regulatory authority shall be pending or threatened wherein an adverse judgment, decree, or order would be reasonably likely to result in the prohibition of or material impairment of the benefits of the implementation of the Rights Offering and the issuance and sale of Common Stock in the Rights Offering.
(vi) Since the date of this Agreement and the date of the Closing (except those representations and warranties Agreement, there shall not have been any material adverse effect or any effect 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not havewould, individually or in the aggregate, a Material Adverse Effect; reasonably be expected to materially and adversely affect the condition that ability of the Company or the Backstop Purchaser, as the case may be, to perform its or their obligations under this Agreement or consummate the transactions contemplated hereby on a timely basis or to materially and adversely affect the business, assets or financial condition of the Company.
(vii) As of the Closing Date, trading in the Common Stock shall not have been suspended by the SEC.
(viii) As of the Closing Date, the Common Stock shall be quoted on the OTCQX Best Market (or a national securities exchange) and quotations as to its price shall not be blocked.
(ix) The Backstop Purchaser shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing received a legal opinion from ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP with respect to either customary matters in a form satisfactory to the Backstop Purchaser in its reasonable discretion relating to the due authorization of the issuance of the Rights and the shares of Common Stock in the Rights Offering, the due authorization of this Agreement and such other matters as the Backstop Purchaser shall reasonably request.
(x) The Refinancing Condition shall have been satisfied.
(xi) The Company shall enter into the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Registration Rights Agreement.
(b) The obligation of Notwithstanding the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgmentforegoing, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of (ii) and (vi) above (x) as they relate to the Branch Purchase AgreementBackstop Purchaser, other than may only be waived by the condition set forth in Section 10.3(eCompany, and (y) of the Branch Purchase Agreement with respect as they relate to the Company’s acceptance of , may only be waived by the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedBackstop Purchaser.
Appears in 2 contracts
Sources: Backstop Agreement (Williams Industrial Services Group Inc.), Backstop Agreement (Williams Industrial Services Group Inc.)
Conditions. (a) At Closing, the Company shall deliver to Merr▇▇▇ ▇▇▇c▇ ▇▇▇ or more stock certificates registered in the name of MLI representing the number of Purchase Shares set forth in Section 2 above. 2 The Company's obligation to complete the purchase and sale of the Investor Purchase Shares and deliver such stock certificate(s) to consummate Merr▇▇▇ ▇▇▇c▇ ▇▇ the Closing shall be subject to the condition that all following conditions, any one or more of which may be waived by the Company: (i) receipt by the Company of Federal Funds (or other mutually agreed upon form of payment) in the full amount of the purchase price for the Purchase Shares being purchased hereunder, (ii) the accuracy as of the Closing Date, of the representations and warranties made by Merr▇▇▇ ▇▇▇c▇ ▇▇▇ein and other statements the fulfillment, in all material respects, of those undertakings of Merr▇▇▇ ▇▇▇c▇ ▇▇ be fulfilled prior to the Closing, (iii) execution and delivery of the Swap Agreement, (iv) receipt of an accurate, complete and duly executed original of U.S. Internal Revenue Service Form 1001, certifying that MLI is entitled to receive any payments under this Agreement, the Swap Agreement or as a result of MLI's ownership of Common Shares that may be viewed as interest for U.S. federal income tax purposes without deduction or withholding of U.S. federal income taxes. (v) receipt by the Company shall be of a cross-receipt with respect to the Purchase Shares executed by Merr▇▇▇ ▇▇▇c▇ ▇▇▇ (vi) receipt by the Company of a certificate by an officer or authorized representative of Merr▇▇▇ ▇▇▇c▇ ▇▇ the effect that the representations and warranties of Merr▇▇▇ ▇▇▇c▇ ▇▇▇ forth in Section 5 hereof are true and correct as of the date of this Agreement and the date as of the Closing (except those 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 Date. Merr▇▇▇ ▇▇▇▇▇'▇ ▇▇▇igation to accept delivery of such date), except stock certificate(s) and to pay for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing Shares evidenced thereby shall be subject to the following additional conditions:
, any one or more of which may be waived by Merr▇▇▇ ▇▇▇c▇: (1▇) no provision of any applicable law or regulation and no judgmentthe accuracy, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any as of the Investor Shares;
(2) Closing Date, of the purchase representations and warranties made by the Investor Company herein and the fulfillment, in all material respects, of those undertakings of the Investor Shares shall not (i) require Company to be fulfilled prior to the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActClosing, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require receipt by Merr▇▇▇ ▇▇▇c▇ ▇▇ all opinions, letters and certificates to be delivered by the Investor or any of its affiliates Company pursuant to become a bank holding company; or this Purchase Agreement, (iii) cause the Investor, together with any other person whose securities execution and delivery of the Company would be aggregated with Swap Agreement, (iv) the Investor’s securities execution and delivery of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities a guarantee issued by the Investor Operating Partnership (the "Guarantee") and such other persons(v) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement receipt by Merr▇▇▇ ▇▇▇c▇ ▇▇ a cross-receipt with respect to the purchase price for the Purchase Shares executed by the Company’s acceptance . The Company has filed with the U.S. Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. 333-38071) for the registration of certain preferred shares of beneficial interest, $.01 par value per share, warrants for purchase of Common Shares and Common Shares under the Securities Act of 1933, as amended (the "Securities Act"), and the offering thereof from time to time in accordance with Rule 415 of the proceeds rules and regulations of the Acceptable Financing Commission under the Securities Act (as defined in the Branch Purchase Agreement"1933 Act Regulations"), shall and the Company has filed such amendment or amendments thereto as may have been satisfied required prior to the execution of this Agreement. Such registration statement, as amended, has been declared effective by the Commission. A prospectus is to be used in connection with the offering and sale of the Shares to MLI pursuant to this Agreement (the "Prospectus"). Such registration statement and the prospectus constituting a part thereof (including, in each case, any information deemed to be a part thereof pursuant to Rule 430A(b) of the 1933 Act Regulations and any prospectus supplement relating to the offering of the Shares to MLI pursuant to Rule 415 of the 1933 Act Regulations (a "Prospectus Supplement")), as from time to time amended or waived.supplemented pursuant to the Securities Act or otherwise, are hereinafter referred to as the "Registration Statement," and the "Prospectus," respectively (both of which shall include any
Appears in 2 contracts
Sources: Purchase Agreement (Crescent Real Estate Equities Co), Purchase Agreement (Crescent Real Estate Equities Co)
Conditions. 5.1 The obligations of the Sellers and the Purchaser to complete the sale and purchase of the Shares are in all respects conditional on the satisfaction (or waiver, as the case may be) of the following matters (the “Conditions”):
(a) The obligation with regard to each of the Investor Project Licences, the approval of the Botswanan Minister of Minerals and Energy to consummate the Closing change in control in the Group brought about by the sale and purchase of the Shares having been obtained, evidenced in writing and not withdrawn, such approval being either unconditional or on conditions that do not have a material adverse effect (the “Botswana CoC Condition”);
(b) the approval of the Transaction by the Competition and Consumer Authority having been obtained, evidenced in writing and not withdrawn, such approval being either unconditional or on conditions that do not have a material adverse effect;
(c) the approval of the Transaction by SAMR, ▇▇ving been obtained, evidenced in writing and not withdrawn;
(d) the requisite majority of relevant shareholders of the Purchaser Guarantor as required under the rules entitled the “Rules (the “Listing Rules”) Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited (the “Stock Exchange”) as published by the Stock Exchange from time to time, shall have approved as a “Major Transaction” (as defined in the Listing Rules) by written shareholders' approval under Rule 14.44 of the Listing Rules, the entry by the Purchaser into this Agreement and the transactions contemplated by this Agreement (the “Shareholder Approval Condition”);
(e) completion by the Purchaser of an NDRC Filing; and
(f) there shall be no Order in effect that prohibits the Sellers and Purchaser completing the sale and purchase of the Shares. For the avoidance of doubt, the Condition in Clause 5.1(d) shall not be waived by any of the Parties for any reason whatsoever.
5.2 The Sellers shall use their best endeavours to procure the fulfilment of the Botswana CoC Condition as soon as possible, and in any event before the Long Stop Date including making all appropriate filings within ten (10) Business Days of this Agreement.
5.3 The Purchaser shall:
(a) subject to Clause 5.6, use its best endeavours to procure the condition fulfilment of the Botswana CoC Condition and Antitrust Conditions as soon as possible, and in any event before the Long Stop Date, including making all appropriate filings within ten (10) Business Days of this Agreement (provided that all representations necessary information and warranties and other statements documents are provided by the Sellers upon request with no unreasonable delay);
(b) use its best endeavours to procure the fulfilment of the Company shall Shareholder Approval Condition as soon as possible, and in any event before the Long Stop Date; and
(c) submit the NDRC Filing to the NDRC as soon as practicable following the date of this Agreement and in any event within ten (10) Business Days of this Agreement.
5.4 Without limiting the generality of Clause 5.3 and Clause 15.4, the Purchaser Guarantor and Purchaser agree to provide or procure the provision of any guarantee in favour of the Government of Botswana in respect of the Group’s obligations under the Project Licences as may be true requested by the Minister of Mineral Resources, Green Technology and correct Energy Security in connection with the satisfaction of the Botswana CoC Condition.
5.5 In respect of the Antitrust Conditions, the Purchaser shall:
(a) prepare and submit any notifications, filings or submissions (or drafts thereof as appropriate in certain jurisdictions) to the applicable Regulatory Authority within ten (10) Business Days from the later of the date of this Agreement and or, in the case of a Regulatory Authority not identified in this Agreement, the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement Regulatory Authority issues a request or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect enquiry relating to the transactions contemplated by the Branch Purchase Agreement.Transaction Documents, with all information required in connection therewith, provided that all necessary information and documents are provided by the Sellers upon request with no unreasonable delay;
(b) The obligation allow the Lead Seller the opportunity to participate in any important/substantial call or meeting with the Regulatory Authority, and within two (2) Business Days inform the Lead Seller of the Company content of any meeting, material conversation and any other communication which takes place between the Purchaser (or its Agents) and the Regulatory Authority in which the Lead Seller did not participate and provide copies or, in the case of non-written communications, a written summary, to consummate the Closing Lead Seller;
(c) procure that the Lead Seller is given a reasonable opportunity to review and comment on drafts of all notifications, filings and submissions before they are submitted to the Regulatory Authority and provide the Lead Seller with final copies of all such notifications, filings and submissions (it being acknowledged that certain such drafts and/or documents may be shared on a confidential basis only with outside counsel) and take account of any reasonable comments that the Lead Seller may have;
(d) use its best endeavours to avoid any declaration of incompleteness by the Regulatory Authority or any other suspension of the periods for clearance;
(e) not, without the prior written consent of the Lead Seller, withdraw any notification, filing or submission made to the Regulatory Authority; and
(f) bear all filing fees (and necessary translation costs) associated with the notification and filings made in order to satisfy the Antitrust Conditions, with each Party bearing its own legal fees.
5.6 In respect of the Conditions in Clause 5.1(a) and 5.1(b), nothing in this Agreement shall require the Purchaser to offer to the relevant Regulatory Authorities or to accept or agree any undertakings, commitments, conditions, modifications or remedies, whether involving divestments or disposals or constraints on prices or other behaviour or otherwise in order to obtain the satisfaction such Conditions (each, a “Regulatory Undertaking”), in each case to the extent that such a Regulatory Undertaking would have a material adverse effect.
5.7 The Sellers and the Purchaser agree that the Purchaser shall be subject primarily responsible for responding to all requests and enquiries from the Regulatory Authority and such requests and enquiries shall be dealt with, in each case, by the Lead Seller and the Purchaser in consultation with each other and the Lead Seller and the Purchaser shall co-operate with each other and the Regulatory Authority, to the condition extent necessary and on a confidential basis, and provide all necessary information and assistance reasonably required by the other or by the Regulatory Authority as soon as reasonably practicable upon being requested to do so, provided that all representations any information provided in relation to a Seller (rather than the Group) shall be provided only to the Regulatory Authority and warranties the Purchaser’s Lawyers on a strictly confidential basis and shall not be provided to the Purchaser.
5.8 Nothing in Clause 5.5 and 5.7 shall require a Party to share information, documents or communications with the other statements if prohibited by a Regulatory Authority from doing so.
5.9 Nothing in Clause 5.5 and 5.7 shall require a Party to disclose to or receive from the other any competitively sensitive information or business secrets. In order to comply with their obligations in Clause 5.5 and 5.7, the Parties will make arrangements for the provision of copies of relevant information, documents and communications to the other Party's external advisors on an external advisor only basis together with redacted versions excluding any such competitively sensitive information or business secrets to the other Party.
5.10 Without prejudice to Clauses 5.2 and 5.3, each of the Investor Purchaser (on the one hand) and the Sellers (on the other hand) will promptly:
(a) co-operate with the other with a view to achieving satisfaction of the Botswana CoC Condition;
(b) provide the other with any necessary information, assistance and documents reasonably required for the purposes of making any submissions and notifications or filings necessary for the purposes of satisfying the Botswana CoC Condition; and
(c) provide any Relevant Authority with any necessary information or documents required by such Relevant Authority for the purposes of satisfying the Botswana CoC Condition.
5.11 Each Seller undertakes to notify the Purchaser (and any other Seller which is not otherwise aware) in writing, and the Purchaser undertakes to notify the Sellers in writing, of anything which will or may prevent any of the Conditions from being satisfied on or before the Long Stop Date or Extended Long Stop Date (if applicable) promptly after it comes to their attention.
5.12 The Purchaser undertakes to notify the Lead Seller as soon as possible on becoming aware that any of the Conditions has been satisfied.
5.13 Each of the Sellers and the Purchaser shall bear and pay its own costs and expenses (including all legal expenses) incurred by it in connection with or incidental to the satisfaction of the Conditions, save that the Purchaser shall be true responsible for any fees, charges or other costs payable in connection with the submissions, notifications or filings referred to in Clause 5.5(a).
5.14 Except with the written consent of the Lead Seller, the Purchaser shall not, and correct shall procure that each member of the Purchaser’s Group shall not, directly or indirectly, either alone or in partnership or jointly or in conjunction with any person, as principal, agent, shareholder or in any other manner whatsoever, contact any Government Entities (including any Government Official thereof) in connection with the Transaction other than any Regulatory Authority.
5.15 The Lead Seller may, at its sole discretion, by written notice to the Purchaser, extend the Long Stop Date by up to three (3) months from the Long Stop Date, and the new Long Stop Date resulting from such extension shall be the “Extended Long Stop Date”.
5.16 If any of the Conditions are not fulfilled or waived on or before the Long Stop Date or the Extended Long Stop Date (if applicable), the Lead Seller may, at its sole discretion, be entitled to treat this Agreement as terminated subject to, and on the basis set out in, Clause 16.2.
5.17 If, at any time on or prior to the Long Stop Date or the Extended Long Stop Date (if applicable), the Lead Seller becomes aware that any Condition cannot be satisfied or fulfilled and it has given notice thereof as contemplated by Clause 5.11, it may thereafter, in its sole discretion, be entitled to treat this Agreement as terminated subject to, and on the basis set out in, Clause 16.2.
5.18 Where the Agreement is terminated by the Lead Seller pursuant to Clause 5.16 or Clause 5.17 solely as a result of any one or more of the Conditions in Clauses 5.1(c), 5.1(d) or 5.1(e) not being satisfied, the Purchaser shall pay the Pro Rata Portion of the Break Fee to each Seller. The Purchaser shall make such payment within thirty (30) Business Days after the later of the date of this Agreement termination and the date the Purchaser receives notice of US dollar-denominated bank account details from all Sellers.
5.19 Payment of the Closing Break Fee in accordance with Clause 5.18 shall be the Sellers’ sole and exclusive remedy for such termination.
5.20 If, at any time on or prior to the Long Stop Date or the Extended Long Stop Date (except those representations and warranties if applicable), the Lead Seller or the Purchaser concludes that there is an Order in effect as contemplated by their terms speak specifically as of Clause 5.1(f), such Party may provide written notice to the date of other Party at any time thereafter, at its sole discretion, terminating this Agreement or some other date shall be true subject to, and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions basis set forth in Section 10 of the Branch Purchase Agreementout in, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedClause 16.2.
Appears in 2 contracts
Sources: Share Sale and Purchase Agreement, Share Sale and Purchase Agreement
Conditions. (a) The Each Backstop Purchaser’s obligation to purchase shares of the Investor Class A Common Stock pursuant to consummate the Closing shall be its Backstop Commitment is subject to the condition that following conditions: (i) the Company shall be in compliance with its obligations under this Agreement in all material respects; (ii) the representations and warranties and other statements of the Company set forth in this Agreement shall be true and correct as of the date of this Agreement and the date Closing and the failure of the Closing (except those any such 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as has not resulted in, and would not havereasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect; and (iii) to the condition that extent required by the rules of Nasdaq, the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and obtained the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase AgreementStockholder Approval.
(b) The obligation of the Company to consummate the Closing shall be Company’s obligations hereunder are subject to the condition that following conditions: (i) the Backstop Purchasers shall be in compliance with their respective obligations under this Agreement in all material respects; (ii) the representations and warranties and other statements of the Investor Backstop Purchasers hereunder shall be true and correct as of the date of this Agreement and the date Closing and the failure of the Closing (except those any such representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall to be so true and correct as has not resulted in, and would not reasonably be expected to result in, individually or in the aggregate, a material adverse effect on the ability of such date)the Backstop Purchasers to consummate the transactions contemplated by this Agreement; and (iii) to the condition that extent required by the Investor rules of Nasdaq, the Company shall have performed all of its obligations hereunder theretofore to be performedobtained the Stockholder Approval.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be is further subject to the following additional conditions:
(1) no provision of any applicable law satisfaction or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any waiver of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not following conditions: (i) require consummation of the Investor or any Rights Offering and delivery of its affiliates the Subscription Notice to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulatorBackstop Purchasers; (ii) require to the Investor or any extent required by the rules of its affiliates to become a bank holding companyNasdaq, stockholder approval of this Agreement and the issuance of the Backstop Acquired Shares in compliance with Nasdaq Rule 5635 (the “Stockholder Approval”); or and (iii) cause the Investor, together with any other person whose securities consummation of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedExchange Transactions.
Appears in 2 contracts
Sources: Exchange Agreement (Rent the Runway, Inc.), Rights Offering Backstop Agreement (Rent the Runway, Inc.)
Conditions. 10.3.1 The indemnities set out in Section 10.1 and Section 10.2 shall not apply to any such claim or proceedings:
(a) The obligation unless as soon as reasonably practicable following receipt of notice of such claim or proceedings, the Indemnified Person shall have notified the indemnifying Party in writing of it and shall, upon the indemnifying Party’s request and at that indemnifying Party’s cost, have permitted the indemnifying Party to have full care and control of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement claim or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all proceedings using legal representation of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein)own choosing; and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.or
(b) The obligation if the Indemnified Person shall have made any admission in respect of such claim or proceedings or taken any action relating to such claim or proceedings prejudicial to the defence of it without the written consent of the Company indemnifying Party (such consent not to consummate the Closing be unreasonably withheld or delayed), provided that no Indemnified Person shall be subject deemed to be in breach of this condition by any statement properly made by the condition that all representations and warranties and other statements Indemnified Person in connection with the operation of the Investor shall be true Indemnified Person’s internal complaint procedures, accident reporting procedures, or disciplinary procedures, or where such a statement is required by law.
10.3.2 The indemnifying Party shall, in relation to any claim or proceedings it has assumed care and correct as control of under Section 10.3.1(a):
(a) keep the Indemnified Pperson fully informed of the date progress of this Agreement and any claim or proceedings;
(b) consult fully with the date Indemnified Person on the nature of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore any defence to be performed.advanced; and
(c) The obligation of each not, without the prior written consent of the Investor and the Company Indemnified Person (such consent not to consummate the Closing shall be subject to the following additional conditions:
unreasonably withheld or delayed), enter into any settlement or compromise of such claim or proceedings which: (1a) no provision of any applicable law would result in injunctive or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding companyother relief being imposed against an Indemnified Person; or (iiib) cause does not include as an unconditional term the Investor, together with any giving by the claimant to all applicable Indemnified Persons of a release from liability in relation to such claim or proceedings.
10.3.3 Each Party shall use its reasonable endeavours to inform the other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes Party promptly of any bank regulation circumstances that are likely to give rise to a claim or lawproceedings in respect of which it may be entitled to indemnification under Section 10.1 or Section 10.2; and shall keep the other Party reasonably informed of developments in relation to any such claim or proceedings, even where the Party does not intend to collectively be deemed make a claim under Section 10.1 or Section 10.2.
10.3.4 Each Party shall give to own, control or have the power to vote securities which (assuming, indemnifying Party such assistance as it may reasonably require for this purpose only, full conversion and/or exercise of such securities by the Investor conduct and such other persons) would represent more than 9.9% prompt handling of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); andsuch claim or proceedings.
(3) the conditions set forth 10.3.5 Nothing in Section 10 10.1 or Section 10.2 shall restrict or limit an Indemnified Person’s general obligation at law to mitigate a loss it may suffer or incur as a result of the Branch Purchase Agreement, other than the condition set forth in an event that gives rise to a claim under Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied 10.1 or waivedSection 10.2.
Appears in 2 contracts
Sources: Manufacturing and Clinical Trial Agreement (TEKMIRA PHARMACEUTICALS Corp), Manufacturing and Clinical Trial Agreement (TEKMIRA PHARMACEUTICALS Corp)
Conditions. (a) Section 8.1 Conditions to Each Party's Obligation to Effect the Merger. The obligation respective obligations of each party to effect the Investor to consummate the Closing Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) This Agreement and the Merger shall have been adopted and approved by the affirmative vote of holders of (i) a majority of the outstanding shares of PZE Common Stock; and (ii) a majority of the outstanding shares of DVN Common Stock and the Northstar Exchangeable Shares voting as a single class with the DVN Special Voting Stock voting for the Northstar Exchangeable Shares as provided in DVN's charter.
(b) The waiting period applicable to the consummation of the Merger shall have expired or been terminated under (i) the HSR Act and (ii) any mandatory waiting period under any applicable foreign competition or antitrust law or regulation where the failure to observe such waiting period referred to in this clause (ii) would have, individually or in the aggregate, a DVN Material Adverse Effect or a PZE Material Adverse Effect.
(c) None of the parties hereto shall be subject to any decree, order or injunction of a court of competent jurisdiction, U.S. or foreign, which prohibits the consummation of the Merger; provided, however, that prior to invoking this condition that each party agrees to comply with Section 7.5, and with respect to other matters not covered by Section 7.5, to use its commercially reasonable best efforts to have any such decree, order or injunction lifted or vacated; and no statute, rule or regulation shall have been enacted by any governmental authority which prohibits or makes unlawful the consummation of the Merger.
(d) The Form S-4 shall have become effective and no stop order with respect thereto shall be in effect.
(e) The shares of Newco Common Stock to be issued pursuant to the Merger shall have been authorized for listing on the NYSE or the AMEX, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of PZE to Effect the Merger. The obligation of PZE to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) DVN shall have performed in all material respects its covenants and agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of DVN and Newco contained in this Agreement and in any document delivered in connection herewith (i) to the extent qualified by DVN Material Adverse Effect or any other statements of the Company materiality qualification shall be true and correct and (ii) to the extent not qualified by DVN Material Adverse Effect or any other materiality qualification shall be true and correct so long as any failures of such representations and warranties to be true and correct, individually or in the aggregate, do not have a DVN Material Adverse Effect, as of the date of this Agreement and the date as of the Closing Date (except those for representations and warranties that by their terms speak specifically made as of the date of this Agreement or some other date shall a specified date, which need be true and correct only as of such the specified date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company PZE shall have performed in all material respects all received a certificate of the DVN, executed on its obligations hereunder theretofore behalf by its President or a Vice President of DVN, dated the Closing Date, certifying to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementsuch effect.
(b) The obligation PZE shall have received the opinion of ▇▇▇▇▇ & ▇▇▇▇▇, L.L.P., counsel to PZE, in form and substance reasonably satisfactory to PZE, dated the Closing Date, a copy of which shall be furnished to DVN, to the effect that (i) the Merger will be treated for federal income tax purposes as a reorganization within the meaning of section 368(a) of the Company Code and (ii) no gain or loss will be recognized by PZE or the stockholders of PZE who exchange all of their PZE Common Stock solely for Newco Common Stock pursuant to consummate the Closing Merger (except with respect to cash received in lieu of a fractional share interest in Newco Common Stock). In rendering such opinion, such counsel shall be subject entitled to the condition that all receive and rely upon representations of officers of PZE and warranties and other statements of the Investor shall be true and correct DVN as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically to such matters as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedcounsel may reasonably request.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of At any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on time after the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase this Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined there shall not have been any event or occurrence, individually or in the Branch Purchase Agreement)aggregate with all such events or occurrences, shall that have been satisfied had or waivedis likely to have a DVN Material Adverse Effect.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Devon Energy Corp /Ok/), Agreement and Plan of Merger (Pennzenergy Co)
Conditions. (a) The obligation If Purchaser has actual knowledge, or should ---------- have actual knowledge by inspection of the Investor Property or of the public records at or before the Closing, that (i) any representation of Seller hereunder is untrue, as of the date represented, or (ii) Seller has failed to consummate the Closing perform, observe or comply with any covenant, agreement or condition to be performed hereunder, Purchaser shall notify Seller of such within five (5) days after discovery by Purchaser. Purchaser's failure to so notify Seller shall be subject deemed to constitute Purchaser's waiver of same as a condition to Closing and otherwise.
(b) In the condition event that all (A) any of Seller's representations and warranties and other statements of the Company shall be made in Section 3.1 are not true and correct as of the date of this Agreement (and for the purposes hereof a representation shall be untrue only if factually untrue and having a material adverse business or legal impact on Purchaser), and (B) Purchaser has actual knowledge, or should have actual knowledge by inspection of the Property or of the public records at or before the Closing that any of Seller's representations referred to in clause (A) of this sentence are untrue, then Purchaser may, as its sole remedy (whether at law or in equity), all other claims for damages or specific performances being hereby expressly waived by Purchaser, elect to terminate this Agreement, and the date sole liability of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date Seller shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect return to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in Purchaser the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the InvestorDeposit, together with any other person whose securities interest accrued thereon, and thereupon, this Agreement shall be null and void and the parties hereto shall be relieved of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for all further obligations and liability under this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to those obligations and liabilities which expressly survive the Company’s acceptance termination of the proceeds of the Acceptable Financing (as defined in the Branch Purchase this Agreement), shall have been satisfied or waived.
Appears in 2 contracts
Sources: Sale Agreement (Sl Green Realty Corp), Agreement of Sale and Purchase (Sl Green Realty Corp)
Conditions. (a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements following obligations of the Company shall be true satisfied or fulfilled on or prior to the date of each Closing, unless otherwise agreed to in writing by the Placement Agent:
(a) The Company shall have delivered to the Placement Agent, at the Initial Closing, (i) a currently-dated long-form good standing certificate or telegram from the Secretary of State where the Company and correct each Subsidiary is incorporated and each other jurisdiction in which the Company and any of the Subsidiaries is qualified to do business as a foreign corporation; (ii) the certificate of incorporation of the Company and each Subsidiary, as currently in effect, certified by the Secretary of State of the state where the Company and each Subsidiary is incorporated; (iii) a certified copy of the filed Certificate of Designation setting forth the designation, preference rights, qualifications, limitations or restrictions of the Preferred Stock; (iv) by-laws of the Company certified by the secretary of the Company; and (v) certified resolutions of the Board of Directors of the Company approving this Agreement, the execution of the Preferred Stock and the Placement Agent Warrants, the registration of the Registerable Securities and the other transactions contemplated by the Preferred Stock.
(b) There shall have occurred no material adverse event affecting the Company or the Subsidiaries or any of their respective businesses, assets, prospects or the Company's securities since the date of this Agreement and Agreement.
(c) No litigation or administrative proceeding shall have been threatened or commenced against the date Company or any of the Closing Subsidiaries which (except those representations and warranties that by their terms speak specifically as i) seeks to enjoin or otherwise prohibit or restrict the consummation of the date transactions contemplated by this Agreement or (ii) if adversely determined, would have a Material Adverse Effect or have a material adverse effect on the Company's securities.
(d) The Company shall have delivered to the Placement Agent a certificate of its principal executive and financial officers as to the matters set forth in Paragraphs 8(a), (b) and (c) of this Agreement and to the further effect that (i) neither the Company nor any Subsidiary is in default, in any respect, under any note, loan agreement, security agreement, mortgage, deed of trust, indenture, contract, alliance agreement, lease, license, joint venture agreement, agreement or some other date shall be true and correct as of such date)instrument to which it is a party, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually disclosed in the aggregate, Financial Statements or the Memorandum and except where such default has not and will not have a Material Adverse Effect; (ii) the Company's representations and warranties contained in this Agreement are true and correct in all respects on such date with the same force and effect as if made on such date; (iii) there has been no amendment or changes to the Company's or Subsidiaries' certificates of incorporation or by-laws or authorizing resolutions from those delivered pursuant to Paragraph 8(a) of this Agreement; and (iv) no event has occurred which, with or without the lapse of time or giving of notice, or both, would constitute a breach or default thereof by the Company or any Subsidiary or would cause acceleration of any obligation of the Company or any Subsidiary, or could adversely affect the business, operations, financial condition that or prospects of the Company.
(e) The Placement Agent shall have received the opinion of Friedlob ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Tourillott, LLC, counsel for the Company, dated as of the closing date in form and substance reasonably satisfactory to the Placement Agent and its counsel.
(f) The Company shall have performed prepared and filed or delivered to counsel for filing with the SEC and any states in all material respects all which such filing is required, a Form D relating to the sale of its obligations hereunder theretofore to be performed the Preferred Stock and such other documents and certificates as are required.
(without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and g) Subscriptions for at least the condition that since the date hereof no Material Adverse Effect Minimum Amount of Preferred Stock shall have occurred been accepted by the Company.
(h) In addition to the right of the Placement Agent to terminate this Agreement and be continuing with respect to either (x) the Company or (y) the Company after giving effect to not consummate the transactions contemplated by this Agreement as a result of the Branch Purchase Agreement.
(b) The obligation failure of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all comply with any of its obligations hereunder theretofore set forth in this Agreement, this Agreement may be terminated by the Placement Agent by written notice to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject at any time prior to the following additional conditions:
(1) no provision of any applicable law or regulation and no Initial Closing if, in the Placement Agent's sole judgment, injunction(i) the Company and/or Subsidiaries shall have sustained a loss that is material to the Company or its Subsidiaries, taken as a whole, whether or not insured, by reason of fire, earthquake, flood, accident or other calamity, or from any labor dispute or court or government action, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulatordecree; (ii) require the Investor trading in securities on any exchange or any of its affiliates to become a bank holding company; system shall have been suspended or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation limited either generally or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement specifically with respect to the Company’s acceptance 's Common Stock; (iii) material governmental restrictions have been imposed on trading in securities generally or specifically with respect to the Company's Common Stock (not in force and effect on the date of the proceeds of the Acceptable Financing this Agreement; (as defined in the Branch Purchase Agreement), iv) a banking moratorium shall have been satisfied declared by Federal or waivedNew York State authorities; (v) an outbreak of major international hostilities or other national or international calamity shall have occurred; (vi) the Congress of the United States or any state legislative body shall have passed or taken any action or measure, or such bodies or any governmental body or any authoritative accounting institute, or board, or any governmental executive shall have adopted any orders, rules or regulations, which the Placement Agent reasonably believes is likely to have a material adverse effect on the business, financial condition or financial statements of the Company or the market for the Preferred Stock; (vii) the Common Stock shall have been delisted from NASDAQ or the Company shall have received notice from NASDAQ advising the Company of its intention to have the Common Stock delisted from NASDAQ, whether conditional or otherwise, or the Company shall fail to meet the requirements for continued listing on NASDAQ; or (viii) there shall have been, in the Placement Agent's judgment, a material decline in the Dow ▇▇▇▇▇ Industrial Index or the market price of the Common Stock at any time subsequent to the date of this Agreement.
Appears in 2 contracts
Sources: Preferred Stock Placement Agreement (Williams Controls Inc), Preferred Stock Placement Agreement (Williams Controls Inc)
Conditions. 6.2.1 Notwithstanding anything herein contained, the obligation of the Vendor to complete the transactions provided for herein will be subject to the fulfilment of the following conditions at or prior to the Time of Closing, and the Purchaser covenants to use its commercially reasonable efforts to ensure that such conditions, to the extent under the control of the Purchaser, are fulfilled:
(a) The obligation consideration payable pursuant to Sections 2.1(a), 2.1(b) and 2.1(c) to Vendor for the acquisition of the Investor to consummate the Closing Purchased Shares shall be subject to delivered by the condition that all Purchaser.
(b) All representations and warranties and other statements of the Company Purchaser as contained in this Agreement shall be true and correct in all material respects to the extent not qualified by materiality or Purchaser Material Adverse Effect and in all respects to the extent qualified by materiality or Purchaser Material Adverse Effect as of the Closing Date as if made on and as of such date (except for representations and warranties made as of a specified date, the accuracy of which shall be determined as of that specified date).
(c) All covenants to be performed by the Purchaser by the Closing Date as contained in this Agreement shall have been performed and the Purchaser shall have complied in all material respects with its covenants in this Agreement.
(d) All Consents and Regulatory Approvals required to be obtained by the Purchaser in connection with this Agreement and the Investor Rights Agreement and the transactions contemplated hereunder and thereunder shall have been obtained on terms and conditions satisfactory to Vendor, acting reasonably.
(e) There shall not exist any prohibition under Law, including a cease trade order, injunction or other prohibition or order at law or under applicable legislation, against Purchaser which shall prevent the consummation of the transactions contemplated hereby or prevent the trading of the common shares of the Purchaser.
(f) Since the date of this Agreement Agreement, there shall not have been any Purchaser Material Adverse Effect.
(g) The Purchaser executing and delivering in favour of Vendor the Investor Rights Agreement.
(h) The Purchaser shall deliver to the Vendor all in form and substance acceptable to Vendor, acting reasonably:
(i) a certificate of incumbency with respect to Purchaser;
(ii) a copy of the resolution of its Board of Directors (certified by a duly appointed officer as true and correct), authorising the signature of and the date performance by Purchaser of its obligations under this Agreement, the Investor Rights Agreement, and each of the other documents (if any) to be executed by Purchaser pursuant to this Agreement or any of the foregoing agreements; and
(iii) a certificate by Purchaser confirming that (i) all representations and warranties made pursuant to Section 3.2 of this Agreement are true and correct in all material respects to the extent not qualified by materiality or Purchaser Material Adverse Effect and in all respects to the extent qualified by materiality or Purchaser Material Adverse Effect as of the Closing Date as if made on and as of such date (except those for representations and warranties that by their terms speak specifically made as of a specified date, the date accuracy of which shall be determined as of that specified date) and (ii) all covenants to be performed by the Purchaser by the Closing Date as contained in this Agreement have been performed and the Purchaser has complied in all material respects with its covenants in this Agreement.
(i) The Purchaser shall have delivered to Vendor all documentation required under the policies of the CSE relating to the issuance of Talisker Securities to Vendor pursuant to Section 2.1.
(j) The Samsung Security Interest shall have been discharged.
6.2.2 Notwithstanding anything herein contained, the obligation of the Purchaser to complete the transactions provided for herein will be subject to the fulfilment of the following conditions at or some other date prior to the Time of Closing, and Vendor and Bralorne, as the case may be, covenant to use their commercially reasonable efforts to ensure that such conditions are fulfilled:
(a) All representations and warranties of Vendor in this Agreement shall be true and correct in all material respects to the extent not qualified by materiality or material adverse effect and in all respects to the extent qualified by materiality or material adverse effect as of the Closing Date as if made on and as of such date (except for representations and warranties made as of a specified date, the accuracy of which shall be determined as of that specified date), except for such failures .
(b) All covenants to be so true and correct (without giving effect to any qualification performed by the Vendor or Bralorne by the Closing Date as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company this Agreement shall have been performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since Vendor or Bralorne, as the date hereof no Material Adverse Effect case may be, shall have occurred and be continuing complied in all material respects with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase its covenants in this Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation All Consents and Regulatory Approvals required to be obtained by Bralorne or Vendor in connection with this Agreement and the transactions contemplated hereunder shall have been obtained on terms and conditions satisfactory to Purchaser, acting reasonably.
(d) Vendor shall have caused Bralorne to file a notice of alteration in the form attached hereto as Schedule 6.2.2(d) to create the Class A Shares and Vendor shall have subscribed for that number of the Class A Shares for nominal consideration to provide Vendor with 50.1% of the outstanding votes required to elect Bralorne's directors immediately after the Closing.
(e) Bralorne’s directors shall have tendered their resignations.
(f) Vendor and Purchaser shall have entered into a shareholders agreement that is not a "unanimous shareholders agreement" pursuant to the Business Corporations Act (British Columbia), that will: (i) specify the size of Bralorne's board of directors and provide that Purchaser, as the holder of all of the outstanding common shares of Bralorne, will be entitled to nominate all of the directors of Bralorne; and (ii) provide that any matters requiring shareholder approval while Vendor holds Class A Shares must be approved by a special resolution of all shareholders, which shareholders agreement shall be in the form attached hereto as Schedule 6.2.2(f).
(g) Vendor shall deliver, or cause Bralorne to deliver, as the case may be, to the Purchaser, among other documents, all in form and substance acceptable to the Purchaser:
(i) the Books and Records of Bralorne within its possession or control;
(ii) the share certificates (duly endorsed for transfer to the Purchaser or, as the Purchaser may direct, the Purchaser’s nominee) representing the Purchased Shares and shall cause Bralorne to register the transfer of the shares;
(iii) a certificate of incumbency with respect to the Vendor;
(iv) evidence satisfactory to Purchaser of the discharge of the Samsung Security Interest;
(v) evidence satisfactory to Purchaser that Bralorne has sufficient cash on hand on the Closing Date to at a minimum satisfy the FT Expenses;
(vi) evidence satisfactory to the Purchaser that the requirements of Section 4.1(o) have been satisfied in its sole discretion;
(vii) evidence satisfactory to the Purchaser that the requirements of Section 4.1(p) have been satisfied in its sole discretion;
(viii) a certificate of good standing or equivalent with respect to Bralorne;
(ix) a mutual release between the directors and officers, on the one hand, and Bralorne, on the other hand, with effect from the Time of Closing, of those claims by and against Bralorne, as applicable, in the form satisfactory to Purchaser;
(x) a mutual release between Vendor and Bralorne with effect from the Time of Closing of those claims by and against Bralorne, in the form satisfactory to Purchaser;
(xi) a certificate executed by a senior officer of Vendor confirming that (A) all representations and warranties of Vendor in this Agreement are true and correct in all material respects to the extent not qualified by materiality or material adverse effect and in all respects to the extent qualified by materiality or material adverse effect as of the Closing Date as if made on and as of such date (except for representations and warranties made as of a specified date, the accuracy of which shall be determined as of that specified date); (B) all covenants to be performed by the Vendor or Bralorne by the Closing Date as contained in this Agreement have been performed in all material respects and each of the Investor Vendor and Bralorne, as the case may be, has complied in all material respects with its covenants in this Agreement; and (C) as of the Closing Time, Bralorne has no outstanding indebtedness or any liabilities or obligations (whether accrued, absolute, contingent or otherwise, matured or unmatured, including under any guarantee of any debt) other than Reclamation and Rehabilitation Costs and the Company to consummate royalties set out in Schedule 1.1(uu) of the Closing shall be subject Disclosure Letter;
(xii) an opinion of Vendor’s legal counsel addressed to the following additional conditions:
(1) no provision of any applicable law or regulation Purchaser as to certain legal matters relating to Vendor and no judgmentBralorne, injunctionincluding corporate existence, order or decree shall prohibit authorization and enforceability relating to the transactions contemplated hereby or prohibit hereby, the Investor from owning or voting any authorized and issued share capital of Bralorne and the shareholders of Bralorne as at the Time of Closing and the transfer of the Investor Shares;
(2) Purchased Shares to the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActPurchaser, or otherwise seek prior approval or non-objection free and clear of any state or federal banking regulator; (ii) require and all Encumbrances, in form and substance satisfactory to the Investor or any of Purchaser and its affiliates to become a bank holding company; or (iii) cause the Investorcounsel, together with any other person whose securities of the Company would be aggregated acting reasonably, and which is consistent in all material respects with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise draft of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect opinion that has been provided to the purchase of Purchaser and its counsel prior to the Investor Shares contemplated hereby)execution this Agreement; and
(3xiii) the conditions Pro Forma Balance Sheet.
(h) Vendor executing and delivering in favour of Purchaser the Investor Rights Agreement.
(i) Vendor and Bralorne shall have completed the reorganization set forth out in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(eSchedule 6.2.2(i) of the Branch Purchase Agreement Disclosure Letter.
6.2.3 The conditions precedent set out in Section 6.2.1 (except for the Regulatory Approvals required to be obtained in Sections 6.2.1(c) and 6.2.1(d), which are provided for the mutual benefit of the Purchaser and Vendor) are inserted for the sole benefit of Vendor and the conditions precedent set out in Section 6.2.2 (except for the Regulatory Approvals required to be obtained in Sections 6.2.2(b) and 6.2.2(c), which are provided for the mutual benefit of the Purchaser and Vendor) are inserted for the sole benefit of the Purchaser. Either of the Purchaser or the Vendor may refuse to proceed with respect the closing of the purchase and sale of the Purchased Shares if the conditions precedent inserted for its benefit are not fulfilled to its reasonable satisfaction prior to the CompanyClosing Date and it shall incur no liability to any other party by reason of such refusal.
6.2.4 The foregoing conditions precedent may be waived in whole or in part by the party for whose benefit they are inserted in that party’s acceptance absolute discretion. No such waiver shall be of any effect unless it is in writing signed by the proceeds of Party granting the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedwaiver.
Appears in 2 contracts
Sources: Share Purchase Agreement (Avino Silver & Gold Mines LTD), Share Purchase Agreement
Conditions. This Agreement is expressly conditioned upon the Commission’s acceptance of all its provisions, without change or condition. If the Commission does not accept this Agreement in its entirety, any party hereto, at its sole option exercised within fifteen (a15) The obligation days of the Investor to consummate the Closing such Commission order, may withdraw from this Agreement, in which event it shall be subject deemed to be null and void and without effect and shall not be relied upon by the condition that all representations and warranties and other statements of Company, Ratepayer Intervenors, Staff, the Company shall be true and correct as of OCA, or any party to this proceeding, or the date Commission, for any purpose. The Commission’s acceptance of this Agreement shall not constitute continuing approval of, or precedent regarding, any particular principle or issue in this proceeding. The discussions that produced this Agreement have been conducted on the explicit understanding that all offers of settlement relating thereto are and shall be confidential, shall be without prejudice to the date position of any party or participant representing any such offer or participating in any such discussion, and are not to be used in connection with any future proceeding or otherwise. The Settling Parties agree that all testimony and supporting documentation should be admitted as full exhibits for purposes of reviewing this Agreement. The Settling Parties’ agreement to admit all testimony without challenge does not constitute agreement by the Settling Parties that the content of the Closing (written testimony is accurate or what weight, if any, should be given to the views of any witness, except those representations and warranties that by their terms speak as may be specifically as provided in this Agreement. The identification of the date resolution of any specific issue in this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would does not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting indicate any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates Settling Parties’ agreement to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company that resolution for purposes of any bank regulation future proceeding, nor does the reference to any other document bind the Settling Parties to the contents of, or recommendations in, that document for purposes of any future proceeding. The Commission’s approval of the recommendations in this Agreement shall not constitute a determination or precedent with regard to any specific adjustments, but rather shall constitute only a determination that the rates resulting from the agreement, and other specific conditions stated in this Agreement are just and reasonable and otherwise consistent with the law. This Agreement may be executed by facsimile and in counterparts, to collectively each of which shall be deemed to ownbe an original, control or have the power to vote securities which (assumingand all of which, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement)taken together, shall have been satisfied or waivedconstitute one agreement binding on all Settling Parties.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
Conditions. (a) The obligation obligations of the Investor Vendors to consummate sell the Closing Purchased Shares shall be subject to the condition that satisfaction, on or before the Closing Date, of each of the following conditions precedent (each of which is for the exclusive benefit of the Vendors and may be waived by the Vendors, in whole or in part at their option, and any one or more of which, if not satisfied or waived, will relieve the Vendors of any obligation under this Agreement):
(a) each of the acts, undertakings, obligations, agreements and covenants of the Purchaser under this Agreement or under any Closing Document to be performed or complied with on or before the Closing Date shall have been duly performed or complied with in all material respects, and the Vendors shall have received a certificate of the Purchaser addressed to the Vendors and dated as of the Closing Date, confirming same. The acceptance by the Vendors, in their sole discretion, of a certificate which does not correspond in all respects to the terms of the preceding sentence shall be deemed to constitute a variation or amendment, to the extent therein described, of the provisions of this Agreement or any Closing Document; and
(b) each of the representations and warranties and other statements made in favour of the Company Vendors pursuant to this Agreement shall be true true, complete and correct as of the date of this Agreement and the date of the Closing in all material respects (except that those representations and warranties that by their terms speak specifically which are qualified as of to material, materiality, Material Adverse Change or similar expressions, or are subject to the date of this Agreement same or some other date similar type exceptions, shall be true true, complete and correct in all respects) on the Closing Date as if made on and as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company Vendors shall have performed in all material respects all received a certificate of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect Purchaser addressed to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations Vendors and warranties and other statements of the Investor shall be true and correct dated as of the date Closing Date, confirming same. The acceptance by the Vendors, in their sole discretion, of this Agreement and a certificate which does not correspond in all respects to the date terms of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date preceding sentence shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% be a waiver of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect representation or warranty contained in this Agreement to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedextent therein described.
Appears in 2 contracts
Sources: Share Purchase Agreement (Argo Blockchain PLC), Share Purchase Agreement (Argo Blockchain PLC)
Conditions. (a) Section 7.1 Conditions to Each Party's Obligation to Effect the Merger. ---------------------------------------------------------- The respective obligation of each party to effect the Investor to consummate the Closing Merger shall be subject to the condition satisfaction at or prior to the Effective Time of each of the following conditions, any and all of which may be waived in whole or in part by the Company, the Parent or Merger Sub, as the case may be, to the extent permitted by applicable law:
(a) This Agreement shall have been adopted by the requisite vote of the holders of the shares of Company Common Stock in order to consummate the Merger and this Agreement shall have been approved by the requisite vote under the rules and regulations of the NNM by the stockholders of the Parent.
(b) No statute, rule or regulation shall have been enacted or promulgated by any Governmental Entity which prohibits the consummation of the Merger, and there shall be no order or injunction of a court of competent jurisdiction in effect precluding consummation of the Merger; provided, however, that each of the parties to this Agreement shall have used commercially reasonable efforts to prevent the entry of such restraints and to appeal as promptly as possible any such restraints that may be entered.
(c) The applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) The Registration Statement shall have become effective under the Securities Act and no stop order or proceedings seeking a stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose, and no similar proceeding in respect of the Proxy Statement, shall have been threatened in writing by the SEC or shall have been initiated by the SEC.
(e) All consents of any Governmental Entity or third party, the failure of which to obtain would reasonably be expected to have a Material Adverse Effect with respect to the Surviving Corporation, shall have been obtained.
Section 7.2 Conditions to the Parent's and Merger Sub's Obligations to ---------------------------------------------------------- Effect the Merger. The obligations of the Parent and Merger Sub to consummate ----------------- the Merger shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions, any and all of which may be waived in whole or in part by the Parent and Merger Sub, to the extent permitted by applicable law.
(a) The representations and warranties and other statements of the Company set forth in this Agreement shall be true and correct (i) as of the date of this Agreement and the date of the Closing (except those to the extent such representations and warranties that by their terms speak are specifically made as of the date of this Agreement or some other date a particular date, in which case such representations and warranties shall be true and correct as of such date), except for such failures to be so true ) and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinii) as would not have, individually in of the aggregate, a Material Adverse Effect; Effective Time as though made on and as of the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed Effective Time (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either except (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all extent such representations and warranties and other statements of the Investor shall be true and correct are specifically made as of the date of this Agreement and the date of the Closing (except those a particular date, in which case such 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, (y) for changes contemplated by this Agreement and (z) where the failures to be true and correct (without regard to any materiality, Company Material Adverse Effect or knowledge qualifications contained therein); , individually or in the aggregate, have not had, and the condition that the Investor are not reasonably be expected to have, a Company Material Adverse Effect).
(b) The Company shall have performed complied in all of material respects with its obligations hereunder theretofore to be performedunder this Agreement.
(c) The obligation of Parent shall have received an officer's certificate duly executed by each of the Investor Chief Executive Officer and Chief Financial Officer of the Company to the effect that the conditions set forth in Sections 7.2(a) and 7.2(b) have been satisfied.
(d) The Parent shall have received an opinion of Brobeck, Phleger & Harrison LLP, in form and substance reasonably sati▇▇▇▇▇▇▇y ▇▇ ▇▇▇ Par▇▇▇, ▇▇▇ed as of the date during which the Effective Time occurs, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion, for United States federal income tax purposes, the Merger will constitute a "reorganization" within the meaning of section 368(a) of the Code. In rendering such opinion, Brobeck, Phleger & Harrison LLP shall receive and may rely upon repres▇▇▇▇▇▇▇ns contained ▇▇ ▇▇▇▇ificates of the Company, the Parent and Merger Sub.
(e) The holders of less than five percent of the outstanding Shares at the Effective Time shall have validly delivered to the Company a demand for appraisal rights with respect thereto, and shall not have voted in favor of the Merger or otherwise failed to perfect or effectively withdrawn or lost such rights under Section 262 of the DGCL.
Section 7.3 Conditions to the Company's Obligations to Effect the Merger. ------------------------------------------------------------ The obligations of the Company to consummate the Closing Merger shall be subject to the satisfaction on or prior to the Closing Date of each of the following additional conditions:, any and all of which may be waived in whole or in part by the Company, to the extent permitted by applicable law.
(1a) no provision The representations and warranties of any applicable law or regulation Parent and no judgment, injunction, order or decree Merger Sub set forth in this Agreement shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not be true and correct (i) require as of the Investor or any date of its affiliates this Agreement (except to file the extent such representations and warranties are specifically made as of a prior notice under the Change particular date, in Bank Control Act, or otherwise seek prior approval or non-objection which case such representations and warranties shall be true and correct as of any state or federal banking regulator; such date) and (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities as of the Company would be aggregated with the Investor’s securities Effective Time as though made on and as of the Company for purposes Effective Time (except (x) to the extent such representations and warranties are specifically made as of any bank regulation or lawa particular date, to collectively in which case such representations and warranties shall be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise true and correct as of such securities date, (y) for changes contemplated by this Agreement and (z) where the failures to be true and correct (without regard to any materiality, Parent Material Adverse Effect or knowledge qualifications contained therein), individually or in the aggregate, have not had, and are not reasonably likely to have, a Parent Material Adverse Effect).
(b) Each of the Parent and Merger Sub shall have complied in all material respects with its obligations under this Agreement.
(c) The Company shall have received an officer's certificate duly executed by the Investor and such other persons) would represent more than 9.9% of any class of voting securities Chief Financial Officer of the Company outstanding on the date of the Closing (after giving effect Parent to the purchase of the Investor Shares contemplated hereby); and
(3) effect that the conditions set forth in Section 10 Sections 7.3(a) and 7.3(b) have been satisfied.
(d) The Company shall have received an opinion of Hale and Dorr LLP, in form and substance reasonably satisfactory to th▇ ▇▇mpany, ▇▇ted as of the Branch Purchase Agreementdate during which the Effective Time occurs, other than substantially to the condition effect that, on the basis of facts, representations and assumptions set forth in Section 10.3(esuch opinion, for United States federal income tax purposes, the Merger will constitute a "reorganization" within the meaning of section 368(a) of the Branch Purchase Agreement with respect Code. In rendering such opinion, Hale and Dorr LLP shall receive and may rely upon representations cont▇▇▇▇d in ▇▇▇▇ificates of the Company, the Parent and Merger Sub.
(e) The shares of Parent Common Stock issuable to the Company’s acceptance stockholders of the proceeds of the Acceptable Financing (Company as defined in the Branch Purchase Agreement), contemplated by Article 3 shall have been satisfied or waivedapproved for listing on the NNM, subject to official notice of issuance.
Appears in 2 contracts
Sources: Merger Agreement (Legato Systems Inc), Merger Agreement (Otg Software Inc)
Conditions. 5.1 Conditions to the Obligations of Parent, the Purchaser and the Company. The obligations of Parent, the Purchaser and the Company to consummate the Merger are subject to the satisfaction, at or before the Effective Time, of each of the following conditions:
(a) The Purchaser shall have purchased all Shares duly tendered and not withdrawn pursuant to the terms of the Offer and subject to the terms thereof; provided that the obligation of the Investor Parent and the Purchaser to consummate effect the Closing Merger shall not be subject conditioned on the fulfillment of the condition set forth in this Section 5.1 (a) if the failure of the Purchaser to purchase the Shares pursuant to the condition that all representations and warranties and other statements Offer shall have constituted a breach of the Company shall be true and correct as of the date Offer or of this Agreement and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation consummation of the Merger shall not be precluded by any order, decree or injunction of a court of competent jurisdiction (each party agreeing to use its best efforts to have any such order reversed or injunction lifted), and there shall not have been any action taken or any Law enacted, promulgated or deemed applicable to the Merger by any Governmental Entity that makes consummation of the Merger illegal.
(c) If required by Certificate of Incorporation and By-Laws of the Company and the DGCL, this Agreement shall have been approved and adopted by the affirmative vote of the holders of the requisite number of shares of Common Stock in accordance with the Certificate of Incorporation and By-Laws of the Company and the DGCL.
(▇) ▇▇▇ applicable waiting period under the HSR Act shall have expired or been terminated.
5.2 Conditions to the Obligations of Parent and the Purchaser. The obligations of Parent and the Purchaser to consummate the Closing shall be Merger are subject to the condition that all representations and warranties and other statements satisfaction, at or before the Effective Time, of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing following conditions:
(except those 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); and the condition that the Investor a) The Company shall have performed all of its obligations hereunder theretofore material agreements and covenants contained in this Agreement required to be performedperformed on or prior to the Effective Time and the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of (i) the date made and (ii) except in the case of representations and warranties expressly made solely with reference to a particular date, the Effective Time, and Parent and the Purchaser shall have received a certificate of an executive officer of the Company to such effect.
(b) The Company shall not have received notice from the holder or holders of more than 10% of the outstanding Shares, determined on a fully diluted basis, that such holder or holders have exercised or intend to exercise its or their appraisal rights under Section 262 of the DGCL.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase 179,656 Shares previously held by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Trust shall have been satisfied or waivedreturned to the Company and canceled, as described in the third recital to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Cambrex Corp), Merger Agreement (Cambrex Corp)
Conditions. 4.1 Conditions to the Obligations of Investor The obligations of Investor to complete the transactions contemplated by this Agreement are subject to the satisfaction, prior to the Closing Date, of the following conditions. The parties acknowledge and agree that each of the following conditions is included for the exclusive benefit of Investor and may be waived by Investor in whole or in part without prejudice to its right to rely on any other conditions:
(a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company Corporation set out in the Convertible Debentures shall be true and correct as in all material respects on the Closing Date and the Corporation shall have delivered to Investor at the Time of Closing certificates dated the Closing Date, duly executed by the senior officers of the date Corporation reasonably acceptable to Investor, to such effect. The receipt of such certificates and the closing of the transactions contemplated by this Agreement shall not be nor be deemed to be a waiver of the representations and warranties contained in the Convertible Debentures, which representations and warranties shall continue in full force and effect for the benefit of Investor as provided in the Convertible Debentures;
(b) all of the terms, covenants, obligations and conditions of this Agreement and the date Convertible Debentures to be complied with or performed by the Corporation on or before the Closing Date shall have been complied with or performed in all material respects, and the Corporation shall have delivered to Investor at the Closing certificates dated the Closing Date, duly executed by the senior officers of the Closing Corporation reasonably acceptable to Investor, to such effect;
(except those representations and warranties that c) no action, suit or proceeding shall be pending or threatened by their terms speak specifically as any Authority or any other Person to restrain or prohibit the completion of the date of 7 - 7 - transactions contemplated by this Agreement or some to prevent or restrain the Corporation, in any material respect, from carrying on its business as presently carried on;
(d) all actions, proceedings, instruments, documents and all other date legal matters relating to the subscriptions contemplated by this Agreement shall be true have been approved as to form and correct as legality to the satisfaction of such date)Investor's outside counsel, except for such failures acting reasonably, and all instruments and documents to be so true delivered by the Corporation pursuant to this Agreement prior to or on the Closing Date shall have been delivered prior to or on the Closing Date; without limiting the generality of the foregoing, the Corporation shall duly authorize the execution and correct delivery of the Convertible Debentures and the performance of its obligations thereunder and provide documentation evidencing same to Investor, and, without notice or any action by Investor, the Corporation shall prepare and file, as required, any amendments to its constating documents and by-laws necessitated by the execution and delivery of the Convertible Debentures and the performance of the Corporation's obligations thereunder;
(without giving effect e) there shall have been no change, which has had or could reasonably be expected to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; Effect (as defined in the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that Convertible Debentures) since the date hereof no Material Adverse Effect of the Audited Financial Statements (as defined in the Convertible Debentures);
(f) the Board of Directors of the Corporation shall have occurred approved the terms of this Agreement and be continuing with respect the consummation of the transactions contemplated hereby, including to either (x) the Company or (y) the Company after giving effect an extent and in a manner sufficient to render inapplicable to the transactions contemplated by this Agreement the Branch Purchase Agreement.provisions of Section 203 of the General Corporation Law of the State of Delaware;
(bg) The obligation the Corporation shall have delivered to Investor at the Closing Date an opinion of the Company Corporation's outside counsel as to consummate such matters as are reasonably requested by Investor's outside counsel, all reasonably satisfactory in form, substance and scope to Investor's outside counsel;
(h) the Closing shall be subject to the condition that all representations Corporation and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of executed and delivered the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Amended Registration Rights Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement)Convertible Debentures) on the 8 - 8 - terms contemplated by the Convertible Debentures and in a form reasonably satisfactory to Investor's outside counsel, and when delivered hereunder such Registration Rights Agreement will be a legal, valid, binding and enforceable obligation of the Corporation except as the same may be limited by creditors rights laws and general principles of equity;
(i) the Corporation shall have filed and delivered to the American Stock Exchange ("AMEX") an additional listing application (with respect to all common shares into which any of the Convertible Debentures may be converted) in a form and on terms reasonably satisfactory in form, substance and scope to Investor's outside counsel, and shall use its best efforts to ensure that such common shares become listed on AMEX;
(j) the Corporation shall have obtained all waivers, consents and other Approvals of all Authorities and other third Persons (including consent by NHP (such consent and all documentation executed in connection therewith to be in form and substance reasonably satisfactory to Investor and its outside counsel) to the "change in control" (as defined in the NHP Lease) caused by execution of the Convertible Debentures and the completion of the transactions contemplated thereby) required to complete the transactions contemplated by this Agreement (and shall have provided evidence in form and substance satisfactory to Investor, acting reasonably, that all such waivers, consents and other Approvals have been satisfied or waivedobtained).
Appears in 2 contracts
Sources: Purchase Agreement (Balanced Care Corp), Purchase Agreement (Balanced Care Corp)
Conditions. (a) 5.1 The obligation agreement of the Investor Subscriber to consummate subscribe for the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing Warrants is conditional on:
(except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (xi) the Company or delivering evidence satisfactory to the Subscriber of: - approval of the Transaction by the Company's authorised corporate bodies; and - the capacity and authority of each person executing the Agreement on behalf of the Company;
(yii) the Company after giving effect Subscription Price being fully paid by the Subscriber to the transactions contemplated Company by means of set-off against a valid, due and payable receivable (créance certaine, liquide et exigible) under the Branch Purchase Agreement.Arrangement Fee;
(biii) The obligation the Subscription not resulting in a violation of any agreement to which the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements is a party, its articles of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing association, any shareholders’ agreement (except those 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 dateif any); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of , any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharesjudgment to which it is subject;
(2iv) the purchase by Subscriber continuing to be admitted to trading and listed on the Investor Euronext Growth market of Euronext Paris and Nasdaq;
(v) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered into any judgment, decision, decree, injunction or other order which prohibits consummation of the Investor Shares shall not (i) require the Investor Transaction or any of its affiliates to file a prior notice under the Change in Bank Control Actthat seeks, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assumingeffect of, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities restraining or prohibiting consummation of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Transaction; and
(3vi) the conditions set forth in Section 10 Issuer not possessing any Inside Information on any Completion Date.
5.2 The Parties must use their best endeavours (obligation de moyens) to ensure the satisfaction of the Branch Purchase AgreementPositive Conditions at the latest by the Completion Date.
5.3 The Parties agree that all requests and enquiries from any government, governmental agency, court or other than regulatory body concerning the condition set forth Transaction will be dealt with by the Parties in Section 10.3(e) consultation with each other and the Parties must promptly co-operate with, and provide all necessary information and assistance reasonably required by, such government, agency, court or body upon being requested to do so by the other Party.
5.4 If a Positive Condition is not satisfied on the relevant Completion Date at the latest, the rights and obligations of the Branch Purchase Agreement with respect Parties hereunder shall terminate on such date, unless otherwise agreed in writing by the Parties.
5.5 In the event either Party reasonably believes to be in possession of Inside Information on Completion Date, each Party shall notify the other Party in writing thereof, and the Parties shall discuss in good faith a new Completion Date (not being more than twenty (20) Business Days after the initial Completion Date), in which case the provisions of Clauses 5.3 and 5.4 shall apply to Completion as so deferred; provided further that such deferral may occur up to, and including, the Disbursement Date of the Tranche A, of the Tranche B or of the Tranche C as the case may be. To the extent that any Party considers that the information in its possession does not qualify as Inside Information, if the other Party considers that such qualification may not be correct (and the information may therefore contain Inside Information), the provisions of paragraph 4 of the MAR Letter shall apply, it being specified that, in any event, the Subscriber should not be obliged to subscribe to the Company’s acceptance Warrants if it believes to be in possession of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedInside Information.
Appears in 2 contracts
Sources: Subscription Agreement (Cellectis S.A.), Subscription Agreement (Cellectis S.A.)
Conditions. (a) The obligation of the Investor In addition to consummate the Closing shall be being subject to the condition that all representations and warranties and other statements satisfaction of the Company conditions contained in Sections 5.1 and 5.2, the obligation of an Issuing Bank to issue any Letter of Credit is subject to the satisfaction in full of the following conditions:
(A) the Borrower shall have delivered to the applicable Issuing Bank (at such times and in such manner as such Issuing Bank may reasonably prescribe) and the Administrative Agent, a request for issuance of such Letter of Credit in substantially the form of Exhibit C hereto (each such request a "REQUEST FOR LETTER OF CREDIT"), duly executed applications for such Letter of Credit, and such other documents, instructions and agreements as may be required pursuant to the terms thereof (all such applications, documents, instructions, and agreements being referred to herein as the "L/C DOCUMENTS"), and the proposed Letter of Credit shall be true reasonably satisfactory to such Issuing Bank as to form and correct content; and
(B) as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement issuance no order, judgment or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision decree of any court, arbitrator or Governmental Authority shall purport by its terms to enjoin or restrain the applicable law Issuing Bank from issuing such Letter of Credit and no law, rule or regulation applicable to such Issuing Bank and no judgment, injunction, order request or decree directive (whether or not having the force of law) from a Governmental Authority with jurisdiction over such Issuing Bank shall prohibit or request that such Issuing Bank refrain from the transactions contemplated hereby issuance of Letters of Credit generally or prohibit the Investor from owning or voting any issuance of the Investor Shares;
(2) the purchase by the Investor that Letter of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Credit; and
(3C) in the case of LaSalle acting in its capacity as Issuing Bank, the Borrower shall have duly executed and delivered to LaSalle the L/C Master Agreement and the Borrower shall be in compliance therewith; provided that in the event that the terms and conditions set forth in Section 10 of the Branch Purchase L/C Master Agreement (or any similar agreement entered into with any other Issuing Bank) shall conflict with the terms and conditions of this Agreement, other than the condition set forth in Section 10.3(e) terms and conditions of the Branch Purchase this Agreement with respect shall govern and control to the Company’s acceptance extent of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedsuch conflict.
Appears in 2 contracts
Sources: Credit Agreement (Alion Science & Technology Corp), Credit Agreement (Alion Science & Technology Corp)
Conditions. Notwithstanding anything in this Agreement or the Plan to the contrary: (a) The obligation the Company may, if it shall determine it necessary or desirable for any reason, at the time of award of any Award or the issuance of any shares of Common Stock pursuant to any Award, require the recipient of the Investor to consummate the Closing shall be subject Award, as a condition to the receipt thereof or to the receipt of shares of Common Stock issued pursuant thereto, to deliver to the Company a written representation of present intention to acquire the Award or the shares of Common Stock issued pursuant thereto for his or her own account for investment and not for distribution; and (b) if at any time the Company further determines, in its sole discretion, that the listing, registration or qualification (or any updating of any such document) of any Award or the shares of Common Stock issuable pursuant thereto is necessary on any securities exchange or under any federal or state securities or blue sky law, or that the consent or approval of any governmental regulatory body is necessary or desirable as a condition that all representations and warranties and of, or in connection with the award of any Award, the issuance of shares of Common Stock pursuant thereto, or the removal of any restrictions imposed on such shares, such Award shall not be awarded or such shares of Common Stock shall not be issued or such restrictions shall not be removed, as the case may be, in whole or in part, unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Company. Notwithstanding any other statements provision of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of Plan, this Agreement or some any other date shall agreements entered into pursuant to the Plan, the Company will not be true required to issue any shares of Common Stock under this Agreement or the Plan, and correct as a Participant may not sell, assign, transfer or otherwise dispose of such date), except for such failures to be so true and correct (without giving effect shares of Common Stock issued pursuant to any qualification as to materiality Awards granted under this Agreement or Material Adverse Effect contained thereinthe Plan, unless (a) as would not have, individually there is in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) such shares a registration statement under the Company Securities Act, and any applicable state or (y) foreign securities laws or an exemption from such registration under the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
Securities Act and applicable state or foreign securities laws, and (b) there has been obtained any other consent, approval or permit from any other regulatory body or self-regulatory organization that the Committee, in its sole discretion, deems necessary or advisable. The obligation Company may condition such issuance, sale or transfer upon the receipt of any representations or agreements from the parties involved, and the placement of any legends on certificates representing shares of Common Stock, as may be deemed necessary or advisable by the Company in order to comply with such securities law or other restrictions. The Committee may restrict the rights of Participants to the extent necessary to comply with Article 16(b) of the Exchange Act, the Code or any other applicable law or regulation. The grant of an Award pursuant to this Agreement or the Plan shall not limit in any way the right or power of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement make adjustments, reclassifications, reorganizations or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all changes of its obligations hereunder theretofore capital or business structure or to be performed.
(c) The obligation of each of the Investor and the Company merge, exchange or consolidate or to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law dissolve, liquidate, sell or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor transfer all or any part of its affiliates to file a prior notice under the Change in Bank Control Act, business or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedassets.
Appears in 2 contracts
Sources: Stock Option Agreement (M-Tron Industries, Inc.), Stock Option Agreement (LGL Group Inc)
Conditions. (a) The Properties Other than Coronado South and Rivermark. Except as provided in Section 5.8(b) and 5.8(c), but notwithstanding any other provision of this Agreement to the contrary, Buyer's obligation of the Investor to consummate the Closing purchase a Property shall be subject to and contingent upon the condition that all representations and warranties and other statements satisfaction or waiver of the following conditions precedent:
(i) The Title Company shall be true being irrevocably and correct as unconditionally committed to issue, upon the sole condition of the date of this Agreement and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all payment of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and regularly scheduled premium, the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing Policy with respect to either (x) such Property, insuring Buyer in the Company or (y) amount of the Company after giving effect Purchase Price allocable to such Property that title to such Property is vested of record in Buyer on the Closing Date subject only to the transactions contemplated by Permitted Exceptions (and, to the Branch Purchase Agreement.extent provided in Section 3.3, any New Matters);
(bii) The obligation Except to the extent such matters are the responsibility of the Company Buyer under the Management Agreement relating to consummate the Coronado South Property (during the time such Management Agreement is in effect), the physical condition of the Property shall be in at least substantially the same physical condition on the Closing shall be Date as on the Effective Date, reasonable wear and tear and loss by casualty or condemnation excepted (subject to the condition that all representations and warranties and other statements provisions of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated herebyArticle VI); and
(3iii) To the conditions extent any of the following would reasonably be expected to materially and adversely affect the Buyer, any Property or Buyer's ownership of such Property after the Closing Date (including but not limited to the ability of Buyer to operate such Property as a multifamily residential property), as of the Closing Date:
(A) There shall be no litigation, administrative action or governmental proceeding pending or threatened in writing by any applicable governmental agency against a Property or the Seller of such Property, which seeks to restrain or prohibit the purchase and sale of the Property; provided, however, that in the event of any such litigation, administrative action or proceeding, Buyer's obligation to purchase such Property shall not terminate if, within ten (10) business days, such action is dismissed or a court order is issued allowing the sale to proceed; and provided, further, that in the event the Closing of such Property proceeds on the basis of such a court order or in the event of any litigation, administrative action or governmental proceeding pending or threatened in writing against a Property or the Seller of such Property which seeks to obtain damages or a discovery order with respect to this Agreement or the purchase and sale of the Property, but which does not seek to restrain or prohibit the purchase and sale of the Property, the Closing of such Property shall proceed and Sellers hereby agree to protect, indemnify and hold harmless Buyer and its subsidiaries, affiliates, partners and constituent entities, and all their respective employees, shareholders, officers and directors, successors and assigns, from and against any Losses (but specifically excluding lost profits) arising from such litigation or administrative action or other governmental proceeding, and such indemnity shall not be limited by the provisions of Section 4.7; and
(B) Except to the extent such proceedings are the subject of Sellers' indemnity as set forth in the second paragraph of Section 10 4.7, no proceedings shall be pending or threatened in writing by the applicable governmental agency which could or would cause the redesignation or other modification of the Branch Purchase Agreementzoning classification of, other than or of any building code requirements applicable to, the condition set forth in Section 10.3(e) Property or any portion thereof which would reasonably be expected to have a material adverse effect on Buyer's ability to own, operate, maintain and repair such Property as a multi-family residential property. The failure of any of the Branch Purchase Agreement foregoing conditions to occur solely with respect to the Company’s acceptance any Property shall not be deemed to be a failure of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedsuch condition with respect to any other Property.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Essex Property Trust Inc), Purchase and Sale Agreement (United Dominion Realty Trust Inc)
Conditions. (aA) The obligation obligations of the Purchaser under this Agreement are conditional in all respects upon:
(i) the Purchaser's registration statement (No. 333-95623) filed with the US Securities and Exchange Commission having been declared effective, the IPO Price having exceeded USD 10 per share, the receipt of the net proceeds of the IPO by the Purchaser and the listing of the shares of the Purchaser on the NASDAQ National Market;
(ii) the Investor to consummate Parties having each complied fully with its obligations in Clause 9 and the Closing shall be subject Investor Parties having delivered to the condition that all representations Purchaser a certificate in form and warranties substance satisfactory to the Purchaser, who shall act reasonably, and other statements duly executed by the Investor Parties confirming that, if such be the case, the Investor Parties have each complied fully with its obligations in Clause 9;
(iii) no order or judgement of any court or governmental, statutory or regulatory body having been issued or made prior to Completion, which has the effect of making unlawful or otherwise prohibiting the purchase of the Company by the Purchaser;
(iv) the receipt of a letter in the Agreed Form from BOS indicating that it does not intend to exercise any rights that may be triggered by the transactions contemplated by this Agreement pursuant to a term loan agreement and a working capital letter and documentation relating thereto each dated 27 May, 1999(the "BOS Facilities") notwithstanding Completion and confirming that the BOS Facilities will remain in full force and effect notwithstanding Completion, in all respects on their existing terms;
(v) the Warranties being accurate and not misleading as at the date of this Agreement by reference to the fact and circumstances in existence at the date of this Agreement;
(vi) the Warranties continuing to be accurate in all material respects and not misleading in any material way up to and including the Completion Date and the Warranties being materially accurate and not misleading in any material way when repeated immediately before Completion by reference to the facts and circumstances subsisting at that time and the Obligors (on behalf of themselves) and the Natwest Parties and BOS (on behalf of themselves solely in relation to the Warranties in paragraphs 1 and 2 of Schedule 3) having delivered a certificate in form and substance satisfactory to the Purchaser, who shall act reasonably, and duly executed by the Obligors and the NatWest Parties and BOS confirming that, if such be true the case, the applicable Warranties were accurate and correct not misleading as of at the date of this Agreement and that they have continued to be and are materially accurate and not misleading in any material way;
(vii) no change which in the date Purchaser's reasonable opinion affects adversely the business or assets or condition or the financial or trading position or prospects of any member of the Closing Group in any material way having occurred before the time of Completion;
(except those representations viii) the Investor Parties having delivered a certificate in a form and warranties that by their terms speak specifically as of substance satisfactory to the date of this Agreement or some other date Purchaser, who shall be true and correct as of such date)act reasonably, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition confirming that the Company shall and/or any other relevant member of the Group has served all notices and obtained all consents necessitated by the transactions contemplated by this Agreement in relation to the Assumed Liabilities;
(ix) the receipt by the Purchaser of a certificate from the Investor Parties confirming that they have performed in all material respects complied with all of its their obligations hereunder theretofore to be performed under the Investment Agreement and have no claims against the Company (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); in respect of the Investor Parties other than the Managers)or the Managers under the Investment Agreement and, on payment of the Investor Loans Amount and the condition that since April Interest, no amounts will remain outstanding from any member of the date hereof no Material Adverse Effect shall have occurred and be continuing with respect Group to either the Investor Parties;
(x) the receipt by the Purchaser of confirmation from the Company or that Mr P ▇▇▇▇▇▇▇ has paid up all amounts currently outstanding on his Shares and confirmation from ▇▇▇▇▇▇▇ Limited that it has released its equitable charge over the B Shares of ▇▇▇▇ ▇▇▇▇▇▇▇▇;
(yxi) the Company after giving effect Purchaser having received all necessary approvals in respect of its existing financing facilities in relation to the transactions contemplated by the Branch Purchase this Agreement.
(bB) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements Each of the Investor Parties, BOS and the Purchaser shall be true and correct as (to the extent that it is within their ability to do so) use their respective reasonable endeavours to fulfil or procure the fulfilment of the date of this Agreement conditions set out in sub-clause (A) above and will notify the date of other parties immediately upon the Closing (except those 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 satisfaction of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedconditions.
(cC) The obligation of each Purchaser may waive in whole or in part all or any of the conditions set out in sub-clause (A). For the avoidance of doubt, the Investor Parties and BOS expressly acknowledge that the Company Purchaser has sole and absolute discretion to consummate the Closing shall be subject to the following additional conditionsdecide:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require whether or not to consummate, postpone or abandon the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)IPO; and
(3ii) the IPO Price, and the Purchaser shall have no liability to any Investor Party or BOS arising from, relating to, or in connection with any such decision (save as stated in sub-clause 3(G)).
(D) If the conditions set forth out in Section 10 sub-clause (A) are not fulfilled (notwithstanding the required reasonable endeavours in sub-clause (B)) or waived by the Purchaser on or before the Termination Date, then the Purchaser shall be entitled to treat this Agreement as terminated by written notice to the Investor Parties and BOS.
(E) If an event or series of events occurs or first becomes known to the Company after the date hereof but prior to Completion which is reasonably likely to result in the Adjusted Enterprise Value being less than GBP 47,800,000 then NWEP, on behalf of the Branch Purchase AgreementInvestor Parties and BOS, other may give written notice to the Purchaser (such notice to be sent by fax and by same day courier) giving reasons for such belief and delivered to the Purchaser no later than three Business Days before Completion. Unless the Purchaser responds to such notice within two Business Days of receipt, indicating that it wishes to proceed to Completion, this Agreement shall terminate automatically three Business Days after service of such notice by NWEP. If the Purchaser elects to proceed to Completion in accordance with this sub-clause, the Adjustment Amount shall be capped at GBP 5,000,000. NWEP (on behalf of the Investor Parties and BOS), undertakes to notify the Purchaser immediately on its becoming aware of any circumstance which would cause it to serve a notice pursuant to this sub-clause (E).
(F) If the Agreement is terminated then, subject to sub-clauses (G) and (H), the obligations of each party under this Agreement shall automatically terminate PROVIDED that the rights and liabilities of the parties which have accrued prior to termination shall subsist.
(G) If the Agreement is terminated due to the non-fulfilment of the condition set forth in Section 10.3(esub-clause (A)(i) above, the Purchaser will pay to the Sellers an amount equal to 50% of the Branch Purchase reasonable out of pocket expenses incurred by the Sellers in relation to this Agreement with respect up to a maximum amount of GBP 100,000.
(H) The Investor Parties and BOS acknowledge that the Company’s acceptance restrictions contained in Clauses 18 and 19 shall continue to apply after the termination of the proceeds sale and purchase of the Acceptable Financing (as defined Shares under this Agreement without limit in the Branch Purchase Agreement), shall have been satisfied or waivedtime.
Appears in 2 contracts
Sources: Share Purchase Agreement (Ddi Corp), Share Purchase Agreement (Ddi Corp)
Conditions. If with respect to the Borrowed Securities, (ai) The obligation the Company has not performed all of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore required to be performed (without giving effect to any qualification as to materiality by it under this Agreement on or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect prior to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor Time or any Date of its affiliates to file a prior notice under Delivery, as the Change in Bank Control Actcase may be, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 5 hereof have not been satisfied on or prior to the Closing Time or any Date of Delivery, as the case may be, or (iii) any of the Branch Purchase Agreement, other than the condition conditions set forth in Section 10.3(ethe applicable Forward Sale Agreement shall not have been satisfied on or prior to the Closing Time or any Date of Delivery, as the case may be (clauses (i) through (iii), together, the “Conditions”), then the Forward Seller, in its sole discretion, may elect not to borrow and deliver for sale to the Underwriters the Borrowed Securities otherwise deliverable on such date. In addition, in the event the Forward Seller determines that in connection with establishing its commercially reasonable hedge position, in its sole judgment, the Forward Seller (or its affiliate) (x) is unable, after using commercially reasonable efforts, to borrow and deliver for sale the full number of Borrowed Securities to be borrowed and sold pursuant to this Agreement at the Branch Purchase Agreement Closing Time or on such Date of Delivery or (y) would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so with respect to all or any portion of such full number of Borrowed Securities, then, in each case and upon notice delivered no later than 9:00 A.M. (Eastern time) at the Company’s acceptance Closing Time or the Date of Delivery, as applicable, the proceeds Forward Seller shall only be required to deliver for sale to the Underwriters on the Closing Time or such Date of Delivery, as the Acceptable Financing (as defined case may be, the aggregate number of shares of Common Stock that the Forward Seller or its affiliate is able to borrow in the Branch Purchase Agreement), shall have been satisfied connection with establishing its hedge position at or waivedbelow such cost.
Appears in 2 contracts
Sources: Underwriting Agreement (STAG Industrial, Inc.), Underwriting Agreement (STAG Industrial, Inc.)
Conditions. (a) Section 6.1 Conditions to Each Party’s Obligation To Effect the Merger. The respective obligation of each party to effect the Investor to consummate the Closing Merger shall be subject to the condition that satisfaction on or prior to the Closing Date of each of the following conditions (any or all of which may be waived by the parties hereto in writing, in whole or in part, to the extent permitted by applicable Law):
(i) This Agreement shall have been adopted and approved by the Company Required Vote and (ii) the Parent Proposal shall have been approved and adopted by the Required Parent Vote;
(b) No statute, rule, order, decree or regulation shall have been enacted or promulgated, and no action shall have been taken, by any Governmental Entity of competent jurisdiction which temporarily, preliminarily or permanently restrains, precludes, enjoins or otherwise prohibits the consummation of the Merger or makes the Merger illegal;
(c) Other than filing the Certificate of Merger in accordance with the DGCL, all authorizations, consents and approvals of all Governmental Entities required to be obtained prior to consummation of the Merger shall have been obtained, except for such authorizations, consents, and approvals the failure of which to be obtained individually or in the aggregate has not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on any party to this Agreement;
(d) The S-4 shall have been declared effective, and no stop order suspending the effectiveness of the S-4 shall be in effect and no proceedings for such purpose shall be pending before or threatened by the SEC; and
(e) The shares of Parent Common Stock issuable to the stockholders of the Company in the Merger and to the holders of the Company Options, Company Stock Awards, and Performance Stock Awards shall have been authorized for listing on Nasdaq, subject to official notice of issuance.
Section 6.2 Conditions to the Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions:
(a) (i) The representations and warranties of Parent set forth in Sections 4.2, 4.3, 4.5(a) and other all statements of the Company set forth in Section 4.27 (relating to Taxes) shall be true and correct in all material respects both at and as of the date of this Agreement and the date at and as of the Closing Date, as if made at and as of such time (except those to the extent expressly made as of an earlier date, in which case as of such date); and (ii) the representations and warranties that by their terms speak specifically of each of Parent set forth in this Agreement (other than the representations and warranties set forth in Sections 4.2, 4.3, 4.5(a) and all statements set forth in Section 4.27 (relating to Taxes)), shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) both at and as of the date of this Agreement or some other date shall be true and correct at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except for where the failure of such failures representations and warranties to be so true and correct (without giving effect to any qualification limitation as to materiality “materiality” or “Material Adverse Effect contained Effect” set forth therein) as individually or in the aggregate has not had, and would not have, individually in the aggregatebe reasonably likely to have or result in, a Material Adverse EffectEffect on Parent. The Company shall have received a certificate signed on behalf of Parent by each of two senior executive officers of Parent to the foregoing effect;
(b) Parent shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time pursuant to the terms of this Agreement, and the Company shall have received a certificate signed on behalf of Parent by the Chief Executive Officer or Chief Financial Officer of Parent to such effect;
(c) There shall not be pending any suit, action or proceeding by any Governmental Entity seeking to restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement;
(d) The Company shall have received the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Company, in form and substance reasonably satisfactory to the Company, on the date on which the S-4 is filed and on the Closing Date, in each case dated as of such respective date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent and the Company, all of which are consistent with the state of facts existing as of the date on which the S-4 is filed and the Effective Time, as applicable, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.2(d), ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP shall have received and may rely upon the certificates and representations referred to in Section 5.13(d);
(e) Parent must have delivered to its counsel, the Company and the Company’s counsel a certificate signed on behalf of Parent by a duly authorized officer of Parent certifying the representations set forth in Section 4.27 and as otherwise reasonably requested by the Company’s or Parent’s tax counsel;
(f) During the period from the date of execution of this Agreement until the Effective Time, there shall not have occurred a Material Adverse Effect on Parent;
(g) On a pro forma basis and after giving effect to all transactions contemplated by this Agreement to occur on the Closing Date, (i) Parent must have funds equal to at least the amount set forth on Section 6.2(g)(i) of the Parent Disclosure Letter available for borrowing under all tests and all provisions set forth in its credit agreements, as in effect on the Closing Date, (ii) no default or event of default would exist under such credit agreements of Parent, and (iii) additional debt in an amount equal to at least the amount set forth on Section 6.2(g)(iii) of the Parent Disclosure Letter would not result in a default or event of default under such credit agreements of Parent and the Company shall have received a certificate of Parent signed on its behalf by its Chief Executive Officer or Chief Financial Officer to such effect; and
(h) To the condition extent that any notes remain outstanding under the Parent Indenture, Parent shall have complied with all the applicable provisions of the Parent’s Indenture so that on a pro forma basis and after giving effect to all transactions contemplated by this Agreement, no default or event of default will have occurred under the Parent Indenture, and the Company shall have received a certificate of Parent signed on its behalf by its Chief Executive Officer or Chief Financial Officer to such effect. In addition, on a pro forma basis and after giving effect to all transactions contemplated by this Agreement, no default or event of default will have occurred under the Company Indenture (excluding any defaults or events of default in existence under the Company Indenture immediately prior to the Effective Time); provided that, to the extent any notes remain outstanding under the Company Indenture, the Company shall have complied with all the applicable provisions of the Company’s Indenture prior to the Effective Time, such that the Company’s failure to comply with the applicable provisions of the Company’s Indenture shall not have caused the default or event of default occurring on a pro forma basis and after giving effect to all transactions contemplated by this Agreement.
Section 6.3 Conditions to Obligations of Parent to Effect the Merger. The obligations of Parent to effect the Merger are further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions:
(a) (i) The representations and warranties of the Company set forth in Sections 3.2, 3.3 and 3.5(a) and all statements set forth in Section 3.26 (relating to Taxes) shall be true and correct in all material respects both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); and (ii) the representations and warranties of the Company set forth in this Agreement (other than the representations and warranties set forth in Sections 3.2, 3.3 and 3.5(a) and the statements set forth in Section 3.26) shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except 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) individually or in the aggregate has not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on the Company. Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect;
(b) The Company shall have performed in all material respects all each of its obligations hereunder theretofore under this Agreement required to be performed (without giving effect by it at or prior to any qualification as the Effective Time pursuant to materiality or Material Adverse Effect contained therein); the terms of this Agreement, and the condition that since the date hereof no Material Adverse Effect Parent shall have occurred and received a certificate signed on behalf of the Company by the Chief Executive Officer or Chief Financial Officer to such effect;
(c) There shall not be continuing with pending any suit, action or proceeding by any Governmental Entity seeking to (i) prohibit or limit in any material respect to either (x) the ownership or operation by the Company or (y) Parent or any of their respective affiliates of a substantial portion of the business or assets of the Company after giving effect and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement or (ii) restrain, preclude, enjoin or prohibit the Branch Purchase Merger or any of the other transactions contemplated by this Agreement.;
(bd) The obligation Parent shall have received the opinion of ▇▇▇▇▇▇▇▇ & Knight, LLP, counsel to Parent, in form and substance reasonably satisfactory to Parent, on the Company to consummate date on which the S-4 is filed and on the Closing shall be subject to Date, in each case dated as of such respective date, rendered on the condition that all basis of facts, representations and warranties assumptions set forth in such opinion and other statements the certificates obtained from officers of Parent and the Investor shall be true and correct Company, all of which are consistent with the state of facts existing as of the date on which the S-4 is filed or the Effective Time, as applicable, to the effect that (i) the Merger will qualify as a reorganization within the meaning of this Agreement and the date Section 368(a) of the Closing Code and (except those representations ii) the Company and warranties that by their terms speak specifically as Parent will each be a “party to the reorganization” within the meaning of Section 368 of the date of Code. In rendering the opinion described in this Agreement or some other date shall be true and correct as of such dateSection 6.3(d); and the condition that the Investor , ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, shall have performed all of its obligations hereunder theretofore received and may rely upon the affiliate letters, certificates and representations referred to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharesin Section 5.13(d);
(2e) the purchase by the Investor The number of the Investor Dissenting Shares shall not exceed 10% of the outstanding shares of Company Common Stock;
(if) require All material consents and approvals of any Person that the Investor Company or Parent or any of their respective Subsidiaries is required to obtain in connection with the consummation of the Merger, including consents and approvals from parties to loans, contracts, leases or other agreements, shall have been obtained, and a copy of each such consent and approval shall have been provided to Parent at or prior to the Closing, except for such consents and approvals the failure of which to be obtained individually or in the aggregate would not be reasonably likely to have or result in a Material Adverse Effect on the Company or Parent, as applicable;
(g) The Company must have delivered to its affiliates to file counsel, Parent and Parent’s counsel a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities certificate signed on behalf of the Company would be aggregated with the Investor’s securities by a duly authorized officer of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have certifying the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities representations set forth in Section 3.26 and as otherwise reasonably requested by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Company’s or Parent’s tax counsel; and
(3h) During the conditions set forth in Section 10 period from the date of execution of this Agreement until the Branch Purchase AgreementEffective Time, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to there shall not have occurred a Material Adverse Effect on the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (KCS Energy Inc), Agreement and Plan of Merger (Petrohawk Energy Corp)
Conditions. (a) The obligation obligations of the Investor each party to consummate the Blackstone Repurchase and to effectuate the Closing shall be are subject to the condition that all representations and warranties and other statements closing of the Company shall be true Blackstone Secondary Offering and correct as the delivery to the underwriters of the date of this Agreement shares purchased in the Blackstone Secondary Offering and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof Purchase Price per share being no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementgreater than $ .
(b) The obligation obligations of the Company to consummate the Blackstone Repurchase and to effectuate the Closing shall be are subject to the condition that all the representations and warranties and other statements of the Investor Blackstone set forth in this Agreement shall be true and correct in all material respects on and as of the date of this Agreement Closing Date as though made on and the date as of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) The obligation obligations of each of the Investor and the Company Blackstone to consummate the Blackstone Repurchase and to effectuate the Closing shall be are subject to the following additional conditions:
(1) no provision of any applicable law or regulation condition that the representations and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities warranties of the Company would set forth in this Agreement shall be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor true and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding correct in all material respects on the date and as of the Closing Date as though made on and as of the Closing Date.
(d) The obligations of each party to consummate the Blackstone Repurchase and to effectuate the Closing are subject to the condition that immediately after giving effect to the purchase consummation of the Investor Shares contemplated hereby); and
Blackstone Repurchase (3i) the conditions set forth in Section 10 present fair value and fair saleable value of the Branch Purchase Agreement, other assets of the Company is not less than the condition set forth in Section 10.3(e) total amount of the Branch Purchase Agreement with respect to the Company’s acceptance liabilities (including contingent liabilities); (ii) the Company should be able to pay its debts as they become due and mature; (iii) the Company does not engage in any business or transaction, for which its property would constitute unreasonably small capital; and (iv) the actual, current value of the proceeds of Company’s assets minus its liabilities shall be greater than the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedCompany’s statutory capital.
Appears in 2 contracts
Sources: Share Repurchase Agreement (SeaWorld Entertainment, Inc.), Share Repurchase Agreement (SeaWorld Entertainment, Inc.)
Conditions. (a) The obligation obligations of the Investor Purchaser to consummate purchase the Closing Purchased Shares shall be subject to the condition that satisfaction, on or before the Closing Date, of each of the following conditions precedent (each of which is for the Purchaser’s exclusive benefit and may be waived by the Purchaser, in whole or in part at its option, and any one or more of which, if not satisfied or waived, will relieve the Purchaser of any obligation under this Agreement):
(a) each of the acts, undertakings, obligations, agreements and covenants of the Vendors and the Targets under this Agreement or under any Closing Document to be performed or complied with on or before the Closing Date shall have been duly performed or complied with in all material respects, and the Purchaser shall have received a certificate of the Vendors addressed to the Purchaser and dated as of the Closing Date confirming same. The acceptance by the Purchaser, in its sole discretion, of a certificate which does not correspond in all respects to the terms of the preceding sentence shall be deemed to constitute a variation or amendment, to the extent therein described, of the provisions of this Agreement or any Closing Document;
(b) each of the representations and warranties and other statements made in favour of the Company Purchaser pursuant to this Agreement shall be true true, complete and correct as of the date of this Agreement and the date of the Closing in all material respects (except that those representations and warranties that by their terms speak specifically which are qualified as of to material, materiality, Material Adverse Change or similar expressions, or are subject to the date of this Agreement same or some other date similar type exceptions, shall be true true, complete and correct in all respects) on the Closing Date as if made on and as of such date), except for such failures and the Purchaser shall have received a certificate of the Vendors addressed to the Purchaser and dated as of the Closing Date confirming same. The acceptance by the Purchaser, in its sole discretion, of a certificate which does not correspond in all respects to the terms of the preceding sentence shall be deemed to be so true and correct a waiver of any representation or warranty contained in this Agreement to the extent therein described;
(without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinc) as would there shall not havehave occurred, individually in the aggregatejudgment of the Purchaser, acting reasonably, a Material Adverse Effect; Change since the condition execution of this Agreement;
(d) the Purchaser shall be satisfied that the Company no Claim or Threatened Claim shall have performed been taken, made, threatened or instituted, whether or not having the force of Law, and no Law or Order shall have been proposed, enacted, promulgated, issued or applied: (i) to prohibit or impose any limitation or condition on the completion of the transactions contemplated herein or in any Closing Document or the right of the Purchaser to own or exercise full rights of ownership of all of the Purchased Shares; or (ii) which, if the transactions contemplated herein were completed, could reasonably be expected to result in a Material Adverse Change or prevent the Targets from carrying on, in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification respects, the Business as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharespresently carried on;
(2e) the purchase by Purchase shall be satisfied with the Investor results of its due diligence relating to the Targets and the Business;
(f) all Required Third Party Consents shall have been obtained;
(g) the Pre-Closing Reorganization shall have been duly completed to the satisfaction of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Purchaser; and
(3h) the conditions set forth Purchaser shall be satisfied, acting reasonably, that no fact or circumstance identified in Section 10 its confirmatory due diligence of the Branch Purchase AgreementTargets, other than their respective assets and the condition set forth Business would or could result in Section 10.3(e) of a Material Adverse Change or materially and adversely affect, delay or impair the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedtransactions contemplated hereby.
Appears in 2 contracts
Sources: Share Purchase Agreement (Argo Blockchain PLC), Share Purchase Agreement (Argo Blockchain PLC)
Conditions. The obligation of Seller, on one hand, and Purchaser, on the other hand, to consummate the transaction contemplated hereunder is contingent upon the following:
(a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all Each party’s representations and warranties and other statements of the Company contained herein shall be true and correct in all material respects as of the date of this Agreement and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.Date;
(b) The obligation As of the Company to consummate the Closing Date, each party shall have performed its obligations hereunder and all deliveries made at Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.tendered;
(c) The obligation No actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of each of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against the Investor other party that would materially and adversely affect the Company other party’s ability to consummate the Closing perform its obligations under this Agreement shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharesexist;
(2d) No pending or threatened action, suit or proceeding with respect to the purchase other party 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 Investor consummation of the Investor Shares transaction contemplated hereby shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)exist; and
(3e) Seller will pursue the conditions set forth eviction of all tenants on subject property (if any) and no leases shall survive the Closing (if any). So long as neither party is not in Section 10 default hereunder, if any condition to a party’s obligations to proceed with the Closing hereunder has not been satisfied as of the Branch Purchase AgreementClosing Date, such party may, in its sole discretion, terminate this Agreement by delivering written notice to the other than party on or before the condition set forth Closing Date. Or, such party may elect to close, not withstanding the non-satisfaction of such condition, in Section 10.3(e) which event such party shall be deemed to have waived any such condition. There shall be no liability on the part of the Branch Purchase Agreement with respect other party hereto for breaches of representations and warranties of which the party electing to the Company’s acceptance close had knowledge as of the proceeds of the Acceptable Financing (as defined Closing. Nothing in the Branch Purchase Agreement), foregoing shall relieve a party from any liability it would otherwise have been satisfied or waivedif the failure of such party to satisfy a condition also constitutes a default by such party hereunder.
Appears in 2 contracts
Sources: Purchase and Sales Agreement (Notes Live, Inc.), Purchase and Sale Agreement (Fresh Vine Wine, Inc.)
Conditions. (a) The Your obligation of to purchase the Investor to consummate Notes on the Closing Date shall be subject to the performance by the Company of its agreements hereunder which by the terms hereof are to be performed at or prior to the time of delivery of the Notes and to the following further conditions precedent:
(a) Closing Certificates.
(1) Concurrently with the delivery of the Notes on the Closing Date, you shall have received a certificate dated the Closing Date, signed by a Responsible Officer of the Company, the truth and accuracy of which shall be a condition to your obligation to purchase the Notes proposed to be sold to you and to the effect that all (i) the representations and warranties and other statements of the Company shall be set forth in Exhibit C hereto are true and correct as of the date of this Agreement on and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either the Closing Date, (xii) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have has performed all of its obligations hereunder theretofore which are to be performed.performed on or prior to the Closing Date, and (iii) no Default or Event of Default has occurred and is continuing; and
(c2) The obligation You shall have received a certificate dated the Closing Date, signed by an authorized officer of each of the Investor Existing Subsidiary Guarantors, the truth and the Company to consummate the Closing accuracy of which shall be subject a condition to your obligation to purchase the Notes proposed to be sold to you and to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not effect that (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities representations and warranties of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions Existing Subsidiary Guarantors set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement 2002 Subsidiary Note Guaranty are true and correct on and with respect to the Company’s acceptance Closing Date, (ii) each Existing Subsidiary Guarantor has performed all of its obligations under the proceeds 2002 Subsidiary Note Guaranty which are to be performed on or prior to the Closing Date, and (iii) no Default or Event of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedDefault has occurred and is continuing.
Appears in 2 contracts
Sources: Note Agreement (Universal Forest Products Inc), Note Agreement (Universal Forest Products Inc)
Conditions. (a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and Initial Purchasers to purchase the Company to consummate the Closing shall be Notes under this Agreement are subject to the performance by each of the Issuers and the Guarantors of its respective covenants and obligations hereunder and the satisfaction of each of the following additional conditions:
(1a) no provision All the representations and warranties of the Company and the Subsidiaries contained in this Agreement and in each of the Documents shall be true and correct in all material respects as of the date hereof and at the Closing Date, provided, however, that such representations and warranties that are already qualified by either materiality or Material Adverse Effect shall be true and correct in all respects. On or prior to the Closing Date, the Issuers, the Guarantors and each other party to the Documents (other than the Initial Purchasers) shall have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so satisfy would not, individually or in the aggregate, have a Material Adverse Effect).
(b) No injunction, restraining order or order of any applicable law nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or regulation materially interfere with the consummation of the Transactions; and no judgment, injunction, stop order suspending the qualification or decree shall prohibit the transactions contemplated hereby or prohibit the Investor exemption from owning or voting qualification of any of the Investor Shares;Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced, pending or, to the knowledge of the Issuers or the Guarantors after due inquiry, threatened or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Transactions. No Proceeding shall be pending or, to the knowledge of the Issuers or the Guarantors after due inquiry, threatened other than Proceedings that (A) if adversely determined would, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would, individually or in the aggregate, have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Time of Sale Document (exclusive of any amendment or supplement thereto) there shall not have been any Material Adverse Change which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offer, sale or delivery of the Notes on the terms and in the manner contemplated by this Agreement, the Time of Sale Document and the Final Offering Memorandum.
(e) On or after the date hereof, there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of any of the Company, the Subsidiaries or any securities or indebtedness of any of the Company or the Subsidiaries (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Act and (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of any of the Company, the Subsidiaries or Parent or any securities or indebtedness of any of the Company, the Subsidiaries or Parent by any such rating organization.
(f) The Initial Purchasers shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (A) the chief executive officer of the Company and (B) the principal financial or accounting officer of each of the Issuers and the Guarantors, on behalf of the Issuers and the Guarantors, to the effect that (1) the representations and warranties set forth in Section 4, in each of the Documents and the Perfection Certificate are true and correct with the same force and effect as though expressly made at and as of the Closing Date, (2) the purchase by Issuers and the Investor of Guarantors have performed and complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Investor Shares shall not Closing Date, (i3) require at the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActClosing Date, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on since the date of the Closing most recent financial statements in the Time of Sale Document and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after giving effect the date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (4) since the date of the most recent financial statements in the Time of Sale Document and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), other than as described in the Time of Sale Document and the Final Offering Memorandum or contemplated hereby, none of the Company or the Subsidiaries has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the purchase Company and the Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations of the Investor Shares contemplated herebyCompany and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of any of the Company or the Subsidiaries that is material to the business, condition (financial or otherwise) or results of operations of the Company and the Subsidiaries, taken as a whole, and (5) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the chief financial officer of the Company, in the form of Exhibit A hereto;
(iii) a certificate, dated the Closing Date, executed by the secretary of each of the Issuers and the Guarantors, certifying such matters as the Initial Purchasers may reasonably request.
(iv) the Perfection Certificate, dated the Closing Date, executed by an officer of each of the Issuers and the Guarantors substantially in the form previously provided to counsel for the Issuers.
(v) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the each of the Issuers and the Guarantors, substantially in the form previously approved by the Initial Purchasers or their counsel.
(vi) the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Issuers, dated the Closing Date and addressed to the Initial Purchasers, in substantially the form of Exhibit B hereto.
(vii) the opinion of each of the counsel to the Issuers listed on Schedule IV hereto, dated the Closing Date and addressed to the Initial Purchasers, substantially in the form of Exhibit C hereto.
(viii) the opinion of Proskauer Rose LLP, counsel to the Initial Purchasers, dated the Closing Date and addressed to the Initial Purchasers, in form satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(g) The Initial Purchasers shall have received from Ernst & Young LLP, independent auditors, with respect to the Company (i) a customary comfort letter, dated the date hereof, in the form of Exhibit D hereto, with respect to the financial statements and certain financial information contained in the Time of Sale Document, and (ii) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and their counsel, to the effect that ▇▇▇▇▇ & Young LLP reaffirms the statements made in its letter furnished pursuant to clause (i) with respect to the financial statements and certain financial information contained in the Time of Sale Document and the Final Offering Memorandum.
(h) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP, independent auditors, with respect to the Company (i) a customary comfort letter, dated the date hereof, in the form of Exhibit E hereto and substance reasonably satisfactory to the Initial Purchasers and their counsel, with respect to the financial statements and certain financial information contained in the Time of Sale Document, and (ii) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and their counsel, to the effect that Pricewaterhouse Coopers LLP reaffirms the statements made in its letter furnished pursuant to clause (i) with respect to the financial statements and certain financial information contained in the Time of Sale Document and the Final Offering Memorandum.
(i) Each of the Documents shall have been executed and delivered by all parties thereto.
(j) The Initial Purchasers shall have received copies of all opinions, certificates, letters and other documents delivered under the Documents or in connection with the Transactions.
(k) The terms of each Document shall conform in all material respects to the description thereof in the Time of Sale Document and the Final Offering Memorandum.
(l) The Collateral Agent shall have received (with copies for the Initial Purchasers) on the Closing Date:
(i) appropriately completed copies of Uniform Commercial Code (“UCC”) financing statements naming the Issuers and each Guarantor as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Collateral Agreements;
(ii) appropriately completed copies of UCC Form UCC 3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any Collateral Agreement previously granted by any Person; and
(3iii) such other approvals, opinions, or documents as the Collateral Agent or its counsel may reasonably request in form and substance reasonably satisfactory to the Collateral Agent.
(m) The Collateral Agent and its counsel shall be satisfied that (i) the conditions set forth in Section 10 Lien granted to the Collateral Agent, for the benefit of the Branch Purchase Agreement, Secured Parties in the collateral described above is of the priority described in the Time of Sale Document and the Final Offering Memorandum; and (ii) no Lien exists on any of the collateral described above other than the condition set forth Lien created in Section 10.3(e) favor of the Branch Purchase Agreement with respect Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement, in each case subject to the Company’s acceptance of Permitted Liens;
(n) All UCC financing statements or other similar financing statements and UCC Form UCC-3 termination statements required pursuant to Sections 7(l)(i) and 7(l)(ii) (collectively, the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), “UCC Statements”) shall have been satisfied delivered to CT Corporation System or waivedanother similar filing service company acceptable to the Collateral Agent.
(o) The Initial Purchasers shall have received substantially contemporaneously with the Closing a copy of the receipt of a payoff letter from each of the institutions listed on Schedule V hereto.
Appears in 1 contract
Conditions. (a) The Notwithstanding anything in this Agreement to the contrary, Buyer's obligation of the Investor to consummate the Closing purchase any one specific Property shall be subject to and contingent upon the satisfaction or written waiver by Buyer of the following conditions precedent, as applicable, with respect to such Property:
(i) The willingness, upon the sole condition of the payment of any regularly scheduled premium, of the Title Company to issue a CLTA or standard overage owner's policy or policies of title insurance, with respect to each Property, except the Properties commonly known as Ladera and ▇▇▇▇▇▇▇▇▇ Plaza for which no title insurance shall be obtained, insuring Buyer (or Buyer's permitted assignee or nominee) that the fee title or leasehold title of Seller or Seller's Subsidiaries, as applicable, in the applicable Real Property is vested of record in Buyer (or Buyer's permitted assignee or nominee) on the Closing Date subject only to the printed conditions and exceptions of such policies and the Permitted Exceptions applicable to such Real Property (excluding the exceptions referred to in Section 2.5(a)(iii) [other than matters shown by new surveys acquired after the Effective Date by Buyer or matters imposed by the Title Company based on its inspection of the Properties] and excluding Contracts referred to in clause (vii) of such Section other than recorded Contracts) (the "Buyer's Title Policies"); provided that, if and to the extent that the Title Company requires, as a condition of the deletion the exception referred to in Section 2.5(a)(iii) up-dated or more current surveys, Buyer shall cause such surveys to be obtained before the Closing Date and Buyer shall bear the cost of such surveys.
(ii) Seller's performance or tender of performance of all material obligations under this Agreement with respect to the applicable Property, including Seller's covenants under Section 4.2 with respect to such Property;
(iii) On or before the Closing Date, with respect to those Properties subject to the Assumed Indebtedness, Seller and Buyer shall have obtained as to such Properties (x) the written approval of Buyer's purchase of the Properties subject to the Assumed Indebtedness from each Lender, (y) a written acknowledgement from such Lender that no default exists in the payment of principal or interest or monetary payments of the Assumed Indebtedness and, to such Lender's knowledge, no other material default exists and (z) a release of Seller and Seller's Subsidiaries from all obligations of borrower under the applicable Loan Documents (each a "Lender's Consent").;
(iv) On or before the Closing Date, with respect to those Properties subject to a Ground Lease which requires consent of the ground lessor to the purchase of the leasehold interest, Seller and Buyer shall have obtained the written consent of such ground lessor to Buyer's purchase of the leasehold interest in such Properties (each a "Ground Lessor's Consent") and Seller and Buyer shall use their commercially reasonable efforts to obtain each such Ground Lessor's Consent;
(v) On or before the Effective Date, this Agreement and the transaction contemplated herein shall have been approved by the Board of Directors of Seller;
(vi) On or before the Closing Date, Seller and Buyer shall have obtained the waiver or deemed waiver from those parties identified on Exhibit S having a right of first refusal for the Properties identified on Exhibit S (the "ROFR Party"). If, during the Contract Period, any ROFR Party shall have properly and timely exercised its right of first refusal and purchased the applicable Property or Properties, then the Purchase Price for the Properties shall be reduced by the amount of the Purchase Price allocated for the Property or Properties for which the applicable ROFR Party exercised its option, that portion of the Deposit allocated to such affected Property or Properties shall be returned to Buyer and the term "Deposit" shall be deemed reduced by the amount of the Deposit returned to Buyer;
(vii) As of the Closing Date, there shall not have been bankruptcy filings during the Contract Period (either voluntary or involuntary) for any Property involving tenants whose aggregate annual rent as stated in the respective leases of such tenants aggregates more than ten percent (10%) of the aggregate annual rent from all tenants for such Property (provided, however, that if bankruptcy filings have occurred with respect to leases in which the annual rent exceeds ten percent (10%) of the annual rent with respect to all leases for such Property, then this condition precedent shall not apply if Seller agrees that the Purchase Price for any affected Property or Properties shall be reduced by an amount equal to 10 times the aggregate annual rent in excess of such ten percent (10%) amount payable under the leases affected by such bankruptcy filings);
(viii) All of Seller's representations and warranties as set forth in Article 4 are true and other statements correct in all material respects as of the Company October 12, 2001 as to all Properties (except as to Ontario Village Property for which Seller's representations and warranties shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all as of its obligations hereunder theretofore the Closing Date for the Ontario Village Property), but in each case as modified by additional information provided by Seller to be performed Buyer;
(without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect ix) There shall have occurred and be continuing with respect no damage, destruction or Taking which would entitle Buyer to either terminate this Agreement as to any Properties pursuant to the provisions of Section 7.1;
(x) Seller shall cause the Company or existing environmental insurance policy issued by AIG Environmental covering the Properties (yand other properties owned by Seller and Seller's Subsidiaries) the Company after giving effect to be assigned to Buyer as to the transactions contemplated by Properties with an allocation of coverage limits under such policy to the Branch Purchase Agreement.Properties in the amount of $8,500,000 to the extent the terms of the policy permit such assignment; provided that such assignment shall prohibit Buyer from making claims under such policy for any release or other matter first arising after the Closing for such Property; and
(xi) On or before the Closing, Buyer shall have obtained, at its sole cost and expense, certifications that no Uniform Commercial Code financing statements evidencing the existence of any security interest encumbering the Personal Property or the equity interest of Seller or Seller's Subsidiaries in the limited liability companies that are the fee owners of the Properties commonly known as ▇▇▇▇▇▇▇▇▇ Plaza and Ladera Center and no fixture filings are on file in either the central filing records for Uniform Commercial Code filings of any state in which any Property is located or in the Uniform Commercial Code records of any county in which any Property is located
(b) The Notwithstanding anything in this Agreement to the contrary, Seller's obligation of the Company to consummate the Closing sell any one specific Property shall be subject to and contingent upon the condition that all representations and warranties and other statements satisfaction or written waiver by Seller of the Investor shall be true and correct following conditions precedent, as of the date of this Agreement and the date of the Closing (except those 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 applicable, with respect to such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditionsProperty:
(1i) no provision of any applicable law or regulation and no judgment, injunction, order or decree Buyer shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any tender to Seller payment of the Investor Shares;
(2) Purchase Price for the purchase by Property or Properties which are the Investor subject of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActClosing, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect as adjusted pursuant to the purchase provisions of the Investor Shares contemplated hereby)this Agreement; and
(3ii) On or before the conditions set forth in Section 10 Closing Date, Seller and Buyer shall have obtained the Lender's Consents, if applicable for the Property or Properties which are the subject of a Closing, upon terms reasonably acceptable to Seller and Buyer;
(iii) On or before the Branch Purchase AgreementClosing Date, other than Seller and Buyer shall have obtained the condition set forth in Section 10.3(eGround Lessor's Consents, if applicable for the Property or Properties which are the subject of a Closing; and
(iv) of Seller's obligation to sell the Branch Purchase Agreement with respect Properties identified on Exhibit S is subject to the Company’s acceptance provisions of Section 3.1(a)(vi) to the proceeds extent any ROFR Party exercises its option to purchase the Property or Properties subject to a right of the Acceptable Financing (first refusal as defined described in the Branch Purchase Agreement), shall have been satisfied or waived.Exhibit S.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Burnham Pacific Properties Inc)
Conditions. (a) Section 8.1 Conditions to Each Party's Obligation to Effect the Merger. The obligation respective obligations of each party to effect the Investor to consummate the Closing Merger shall be subject to the condition fulfillment at or prior to the Effective Time of the following conditions:
(a) This Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of Parent pursuant to Section 5.21;
(b) The additional shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on the Nasdaq SmallCap Market;
(c) The waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated and no additional requirements relating thereto shall be applicable;
(d) The Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect;
(e) No preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use all reasonable efforts to have any such injunction, order or decree lifted);
(f) No action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state, federal or foreign government or governmental agency which would prevent the consummation of the Merger or that would have a material adverse effect on the prospects of the Surviving Corporation; and
(g) All governmental consents and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, including, without limitation, approval (if required) by the DOJ, FTC and the SEC, shall have been obtained and be in effect at the Effective Time on terms and conditions that would not have a material adverse effect on the prospects of the Surviving Corporation.
Section 8.2 Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the following additional conditions:
(a) Parent and Acquisition Sub shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Effective Time and the representations and warranties made by Parent and other statements of the Company Acquisition Sub herein that are qualified as to materiality shall be true and correct in all respects in accordance with their terms, and the representations and warranties made by such parties herein that are not so qualified shall be true and correct in all material respects, in each case on and as of the date of this Agreement and the date on and as of the Closing (Effective Time as if made on and as of such date, except those as contemplated or permitted by this Agreement, and except to the extent such representations and warranties that by their terms speak specifically relate solely to an earlier date, in which case such representations and warranties were true and correct on and as of such earlier date, and the Company shall have received a certificate of the President or the Chief Financial Officer of each of Parent and Acquisition Sub to that effect;
(b) The Company shall have received an opinion addressed to the Company from existing counsel to Parent and Acquisition Sub, or other counsel reasonably acceptable to the Company, dated the Closing Date;
(c) The Company shall have received the letter of Ehrenkrantz Sterling & Co., LLC contemplated by Section 7.9;
(d) The Affiliate Agreements required to be delivered to the Company pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) Parent shall have delivered to the Company at or prior to the Effective Time such other documents (including certificates of officers of Parent) as the Company may reasonably request in order to enable the Company to determine whether the conditions to its obligations under this Agreement have been met and otherwise to carry out the provisions of this Agreement;
(f) Between the date of this Agreement and the Closing Date, there shall have been no event with respect to Parent or some other date shall be true and correct as any subsidiary of such date), except for such failures Parent having or reasonably likely to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually or in the aggregate, a Parent Material Adverse Effect;
(g) The employment agreement of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall have been terminated, ▇▇. ▇▇▇▇▇▇▇ shall be entitled to receive an aggregate of $186,000 payable in equal monthly installments commencing January 1, 1999, the Parent shall continue to pay for his health insurance benefits until January 31, 2000 and the Parent shall continue to pay $500 per month for an automobile allowance until March 1, 2001; and
(h) The Board of Directors and stockholders of the condition that Company shall have approved this Agreement within five business days after the Company's receipt of the audited financial statements of the Parent for the year ending December 31, 1998.
Section 8.3 Conditions to Obligation of Parent and Acquisition Sub to Effect the Merger. The obligation of Parent and Acquisition Sub to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) The Company shall have performed in all material respects all of its obligations hereunder theretofore agreements contained in this Agreement required to be performed (without giving effect on or prior to any qualification the Effective Time and the representations and warranties made by the Company herein that are qualified as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct in all respects in accordance with their terms, and the representations and warranties made by such parties herein that are not so qualified shall be true and correct in all material respects, in each case on and as of the date of this Agreement and the date on and as of the Closing (Effective Time as if made on and as of such date, except those as contemplated or permitted by this Agreement, and except to the extent such representations and warranties that by their terms speak specifically relate solely to an earlier date, in which case such representations and warranties were true and correct on and as of such earlier date, and Parent and Acquisition Sub shall have received a Certificate of the President of the Company to that effect;
(b) Parent and Acquisition Sub shall have received an opinion from Stroock & Stroock & ▇▇▇▇▇ LLP, counsel to the Company, or other counsel reasonably acceptable to Parent and Acquisition Sub, dated the Closing Date;
(c) Parent and Acquisition Sub shall have received the letters of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP contemplated by Section 7.9;
(d) The employment agreement of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall have been terminated as set forth in Section 8.2(g);
(e) The Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4.
(f) The Company shall have delivered to Parent at or prior to the Effective Time such other documents (including certificates of officers of the Company) as Parent may reasonably request in order to enable Parent to determine whether the conditions to its obligations under this Agreement have been met and otherwise to carry out the provisions of this Agreement; and
(g) Between the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor Closing Date, there shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) been no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement event with respect to the Company’s acceptance Company or any subsidiary of the proceeds of the Acceptable Financing (as defined Company having or reasonably likely to have, individually or in the Branch Purchase Agreement)aggregate, shall have been satisfied or waiveda Company Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Room Plus Inc)
Conditions. 1. [ ], AND ITS AGENTS AND/OR EMPLOYEES, MAKE NO REPRESENTATION AND EXTEND NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SAFETY, EFFICACY, OR VALIDITY OF PATENT RIGHTS CLAIMS, ISSUED OR PENDING, WITH RESPECT TO THE PATENT RIGHTS NOR IS THERE A WARRANTY THAT THE USE OF THE PATENT RIGHTS AND/OR TANGIBLE MATERIAL WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER RIGHTS.
2. Company must indemnify, defend and hold [ ], its trustees, officers, employees and affiliates, harmless against all claims and expenses, including legal expenses and reasonable attorneys’ fees, arising out of the death or injury to any person or persons or out of any damage to property and against any other claim, proceeding, demand, expense and liability of any kind whatsoever resulting from (a) The obligation possession of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements Tangible Material, (c) utilization of the Company shall be true and correct as Tangible Material in any way or (c) engaging in any activities relating to this [ ] Agreement. 3 This [ ] Agreement is not assignable by either party without the prior written consent of the date of other party; provided, that, Company may assign this [ ] Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement without such consent to a successor to all or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects substantially all of its obligations hereunder theretofore business to which this [ ] Agreement relates, whether by merger, purchase, reorganization or otherwise. Any attempt to assign this [ ] Agreement in violation of this Section C.2. shall be null and void.
4. All notices required to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing given under this [ ] Agreement shall be subject to the condition that all representations in writing and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to ownhave been sufficiently given for all purposes thereof when sent by ema i l or overnight by the U. S. Postal Service or overnight by courier and shall be evidenced by an ema i l transmission confirmation, control or the tracking number issued by the post office or courier. Notwithstanding the above sentence, any termination notice given by [ ] under Section C.5 shall be sent to the Company by email and overnight letter. All notices and any correspondence respecting this Agreement shall be addressed and sent out as follows: To [ ]: For delivery via U.S. Postal Service: [ ] For delivery via courier: [ ] To Company: For delivery via U.S. Postal Service and courier: CABBACIS, LLC ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇ Williamsville, NY 14221
5. [ ] shall have the power right to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor written notice. [ ] Agreement is terminated and such other persons) would represent more than 9.9% of any class of voting securities of the [ ] shall have no further obligation to Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance Patent Rights. Sections A.6., A.7., B.8., B.10., B.11., B.12, C.1., C.2., C.4., C.6., and C.8. shall survive the expiration or any termination of this [ ] Agreement.
6. Unless the parties otherwise agree in writing, or unless [ ] provides Company with a written request to the contrary, [ ] Agreement [ ].
7. [ ]
8. [ ]
9. In the event any provision of this [ ] Agreement is found by any court or tribunal to be partially or wholly invalid or unenforceable, the remainder of the proceeds [ ] Agreement nevertheless shall be enforceable and binding, and the invalid or unenforceable provision shall be modified or restricted to the extent and in the manner necessary to render the same valid and enforceable, or, if such provision cannot under any circumstances be so modified or restricted, it shall be excised from the Agreement without affecting the validity or enforceability of any remaining provisions. The parties agree that any such modification, restriction or excision may be accomplished by their mutual written agreement.
10. The parties acknowledge that they consulted, or had the opportunity to investigate and/or consult, with their legal counsel and/or other advisors with respect to the Patent Rights and the terms of this Agreement.
11. The parties acknowledge that this [ ] Agreement sets forth the entire understanding and intentions of the Acceptable Financing parties hereto as to the subject matter hereof and supersedes all previous representations, negotiations, or understandings between the parties and/or its employees or agents, whether written or oral, regarding the subject matter of this Agreement. No subsequent modification hereof shall be made except in a writing executed by [ ] and Company.
12. The parties to this document agree that a copy of the original signature (as defined in including an electronic copy) may be used for any and all purposes for which the Branch Purchase Agreement), shall original signature may have been satisfied used. The parties further waive any right to challenge the admissibility or waivedauthenticity of this document in a court of law based solely on the absence of an original signature.
Appears in 1 contract
Sources: Development and Commercialization Agreement (Cabbacis Inc)
Conditions. 7.1 Conditions for the Benefit of the Purchaser -------------------------------------------
(a) The obligation sale by the Vendors and the purchase by the Purchaser of the Investor to consummate the Closing shall be Shares is subject to the condition that all following conditions which are for the exclusive benefit of the Purchaser to be performed or complied with at or prior to the Time of Closing:
(i) the representations and warranties and other statements of the Company Vendors set forth in Section 3.1 shall be correct at the Time of Closing with the same force and effect as if made at and as of such time;
(ii) the Vendors shall have performed or complied with all the terms, covenants and conditions of this Agreement to be performed or complied with by the Vendors at or prior to the Time of Closing; and
(iii) the Purchaser shall be furnished with such certificates, affidavits or statutory declarations of the Corporation and of the Vendors or of officers of the Corporation and of the Vendors as the Purchaser or the Purchaser's Counsel may deem reasonably necessary in order to establish that the terms, covenants and conditions contained in this Agreement have been performed or complied with by the Vendors or the Corporation, as the case may be, at or prior to the Time of Closing and that the representations and warranties of the Vendors herein are true and correct at the Time of Closing.
(b) In case any term or covenant of the Vendors or condition to be performed or complied with for the benefit of the Purchaser at or prior to the Time of Closing shall not have been performed or complied with at or prior to the Time of Closing, the Purchaser may, without limiting any other right that the Purchaser may have, at its sole option, either:
(i) rescind this Agreement by notice to the Vendors, and in such event the Purchaser shall be released from all obligations hereunder; or
(ii) waive compliance with any such term, covenant or condition in whole or in part on such terms as may be agreed upon without prejudice to any of its rights of rescission in the event of non-performance of any other term, covenant or condition in whole or in part.
7.2 Conditions for the Benefit of the Vendors -----------------------------------------
(a) The sale by the Vendors and the purchase by the Purchaser of the Shares is subject to the following conditions which are for the exclusive benefit of the Vendors to be performed or complied with at or prior to the Time of Closing:
(i) the representations and warranties of the Purchaser set forth in Section 3.3 shall be true and correct at the Time of Closing with the same force and effect as if made at and as of such time;
(ii) the date Purchaser shall have performed or complied with all of the terms, covenants and conditions of this Agreement and to be performed or complied with by the date Purchaser at or prior to the Time of Closing;
(iii) the Vendors shall be furnished with such certificates, affidavits or statutory declarations of the Purchaser or of officers of the Purchaser as the Vendors or the Vendors' counsel may reasonably think necessary in order to establish that the terms, covenants and conditions contained in this Agreement to have been performed or complied with by the Purchaser at or prior to the Time of Closing (except those have been performed and complied with and that the representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be Purchaser herein given are true and correct as at the Time of such date), except for such failures to be so true and correct Closing; and
(without giving effect to any qualification as to materiality or Material Adverse Effect contained thereiniv) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all Employment Agreements with each of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); the Vendors are signed and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementexecuted.
(b) The obligation In case any term or covenant of the Company Purchaser or condition to consummate be performed or complied with for the benefit of the Vendors at or prior to the Time of Closing shall be subject not have been performed or complied with at or prior to the condition that all representations and warranties and Time of Closing, the Vendors may, without limiting any other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition right that the Investor shall have performed all of Vendors may have, at its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditionssole option, either:
(1i) no provision of any applicable law or regulation rescind this Agreement by notice to the Purchaser, and no judgment, injunction, order or decree in such event the Vendors shall prohibit the transactions contemplated hereby or prohibit the Investor be released from owning or voting any of the Investor Shares;all obligations hereunder; or
(2ii) the purchase by the Investor of the Investor Shares shall not (i) require the Investor waive compliance with any such term, covenant or condition in whole or in part on such terms as may be agreed upon without prejudice to any of its affiliates to file a prior notice under rights of rescission in the Change in Bank Control Act, or otherwise seek prior approval or event of non-objection performance of any state other term, covenant or federal banking regulator; (ii) require the Investor condition in whole or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedpart.
Appears in 1 contract
Conditions. The obligations of the Underwriter to purchase the Shares under this Agreement are subject to the satisfaction of each of the following conditions or waiver thereof by the Underwriter:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement hereof and at the date Closing Date. On or prior to the Closing Date, the Company and each other party hereto (other than the Underwriter) shall have performed or complied with all of the Closing (except those representations agreements and warranties that by satisfied all conditions on 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 for such failures respective parts to be performed, complied with or satisfied hereunder (other than conditions to be satisfied by such other parties, which the failure to so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as satisfy would not havenot, individually or in the aggregate, have a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b) under the Act; all filings required by Rule 433 under the Act shall have been made, and no such filings shall have been made without the consent of the Underwriter (which consent shall not have been unreasonably withheld); and no stop order or notice suspending the effectiveness of or preventing the use of the Registration Statement or preventing or suspending the use of the Final Prospectus of any Issuer Free Writing Prospectus shall have been issued, and no proceedings or examination for such purpose shall have been instituted or threatened. Any request of the Commission for inclusion of additional information in the Registration Statement shall have been complied with. No other injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated hereunder, including the issuance of any stop order suspending the qualification or exemption from qualification of any of the Shares in any jurisdiction, and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company to consummate the Closing shall after due inquiry, be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct pending or contemplated as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) The obligation of each No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Investor Closing Date, prevent the consummation of the Offering or any of the transactions contemplated hereunder. No Proceeding shall be pending or, to the knowledge of the Company after due inquiry, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Shares, and (B) would not, individually or in the aggregate, have a Material Adverse Effect, except as disclosed in the Registration Statement and the Company Final Prospectus.
(d) Except as may be disclosed in the Registration Statement, subsequent to consummate the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof after the date hereof), the Final Prospectus (exclusive of any supplement thereto), or any Issuer Free Writing Prospectus (exclusive of any supplement thereto), there shall not have been any material adverse change having a Material Adverse Effect.
(e) The Underwriter shall have received on the Closing shall be subject to the following additional conditionsDate:
(i) certificates dated the Closing Date, signed by (1) no provision of any applicable law or regulation the Chief Executive Officer and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor principal financial or accounting officer of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActCompany, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities on behalf of the Company would be aggregated with Company, to the Investor’s securities effect that (a) the representations and warranties set forth in Section 4 hereof, are true and correct in all material respects, as of the date hereof and at the Closing Date, (b) the Company for purposes and each other party hereunder (other than the Underwriter) have performed or complied with all of any bank regulation the agreements and satisfied all conditions on their respective parts to be performed, complied with or law, satisfied hereunder (other than conditions to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities satisfied by the Investor and such other personsparties, which failure to satisfy would not, individually or in the aggregate, have a Material Adverse Effect), (c) would represent more than 9.9% of any class of voting securities of at the Company outstanding on Closing Date or since the date of the Closing most recent financial statements in or incorporated by reference into the Registration Statement and the Final Prospectus (exclusive of any amendment or supplement thereto after giving effect to the purchase of the Investor Shares contemplated herebydate hereof); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than as disclosed in or incorporated by reference into the Registration Statement and the Final Prospectus or contemplated hereby, no event or events have occurred, no information has become known nor does any condition set forth exist that, individually or in Section 10.3(ethe aggregate, would have a Material Adverse Effect, (d) since the date of the Branch Purchase Agreement most recent financial statements in or incorporated by reference into the Registration Statement and the Final Prospectus (exclusive of any amendment or supplement thereto after the Applicable Time), other than as disclosed in or incorporated by reference into the Registration Statement and the Final Prospectus or contemplated hereby, the Company has not incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are materially adverse to the Company, taken as a whole, or entered into any transactions not in the ordinary course of business that are materially adverse to the business, financial condition or results of operations of the Company, taken as a whole, and there has not been any change in the Capital Stock or long- term indebtedness of the Company other than pursuant to the terms of outstanding debt and equity securities that is materially adverse to the business, financial condition or results of operations of the Company, taken as a whole, (e) the Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto, no stop order or notice suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Final Prospectus or any Issuer Free Writing Prospectus has been issued, and no proceedings or examinations for that purpose have been instituted or, to the knowledge of such officers, threatened; and (f) the sale of the Shares has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company, certifying such matters as the Underwriter may reasonably request.
(iii) the opinion of Ropes & ▇▇▇▇ LLP, counsel to the Company, dated the Closing Date, in form reasonably satisfactory to the Underwriter covering such matters as are customarily covered in such opinions.
(iv) an opinion, dated the Closing Date, of Law Offices of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, counsel to the Underwriter, in form satisfactory to the Underwriter covering such matters as are customarily covered in such opinions.
(f) The Underwriter shall have received from PricewaterhouseCoopers LLP, independent auditors, with respect to the Company’s acceptance , (i) a customary comfort letter, as of the proceeds of Applicable Time, in form and substance reasonably satisfactory to the Acceptable Financing (as defined Underwriter and PricewaterhouseCoopers LLP, with respect to the financial statements and certain financial information contained in the Branch Purchase Agreement)or incorporated by reference into the Registration Statement and the Final Prospectus, and (ii) a customary “bring down” comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter and PricewaterhouseCoopers LLP, to the effect that PricewaterhouseCoopers LLP reaffirms the statements made in its letter furnished pursuant to clause (i) above.
(g) This Agreement shall have been satisfied executed and delivered by all parties thereto, and the Underwriter shall have received a fully executed original of this Agreement.
(h) The Underwriter shall have received copies of all opinions, certificates, letters and other documents delivered under or waivedin connection with the Offering or any transaction contemplated hereunder.
(i) The Underwriter shall have received the Registration Statement and the Final Prospectus.
Appears in 1 contract
Conditions. 3.1 This Settlement Agreement shall not be deemed in any respect to constitute an admission by any party that any allegation or contention in this proceeding is true or false. Except as specified in this Settlement Agreement to accomplish the customer benefit intended by this Settlement Agreement, the entry of an order by the Department approving the Settlement Agreement shall not in any respect constitute a determination by the Department as to the merits of any other issue raised in this proceeding.
3.2 The making of this Settlement Agreement establishes no principles and shall not be deemed to foreclose any party from making any contention in any future proceeding or investigation, except as to those issues and proceedings that are stated in this Settlement Agreement as being specifically resolved and terminated by approval of this Settlement Agreement.
3.3 This Settlement Agreement is the product of settlement negotiations. The Settling Parties agree that the content of those negotiations (aincluding any work papers or documents produced in connection with the negotiations) The obligation are confidential, that all offers of settlement are without prejudice to the position of any party or participant presenting an offer or participating in the discussion, and, except to enforce rights related to this Settlement Agreement or defend against claims made under this Settlement Agreement, that they will not use the content of those negotiations in any manner in these or other proceedings involving one or more of the Investor parties to consummate this Settlement Agreement, or otherwise.
3.4 The provisions of this Settlement Agreement are not severable. This Settlement Agreement is conditioned on its approval in full by the Closing Department.
3.5 This Settlement Agreement is also contingent upon, and the Company warrants, the provision of accurate, truthful and updated information by the Company during the settlement negotiation process through the Department’s final order. Notwithstanding any other part of this Settlement Agreement to the contrary, this article 3.5 shall be subject binding on the Settling Parties upon execution of the Settlement Agreement.
3.6 If the Department does not approve the Settlement Agreement in its entirety by December 29, 2006, this filing shall be deemed to be withdrawn and shall not constitute a part of the record in any proceeding or used for any other purpose.
3.7 To the extent permitted by law, the Department shall have its usual jurisdiction to implement the terms of this Settlement Agreement. Nothing in this Settlement Agreement, however, shall be construed to prevent or delay the Attorney General from pursuing any cause of action related to this Settlement Agreement in court under ▇.▇. ▇. 93A or otherwise.
3.8 From time to time during the term of this Settlement Agreement, the Attorney General, orally or in writing, may request that the Company respond to not more than 20 informal information requests, including sub-parts, per calendar month regarding any matter related to this Settlement Agreement, the filing and subsequent compliance filings or any other rates, charges or tariffs, and the Company shall answer these information requests in a reasonably prompt manner, not to exceed 21 calendar days from issuance.
3.9 Under no circumstances shall: (1) any charge under this Settlement Agreement or tariffs promulgated under it recover costs that are collected by the Company more than once, or through some other rate, charge or tariff; or (2) any charge recover costs more than once in any other rate, charge or tariff collected by the Company. The Settling Parties acknowledge that the collection(s) described in this paragraph, unless fully refunded with interest, as soon as reasonably possible, shall constitute a breach of this Settlement Agreement when discovered and generally known, and be deemed to violate the involved tariffs.
3.10 Notwithstanding any provision in this Settlement Agreement to the condition that all representations and warranties and other statements contrary, no part of this Settlement Agreement shall be interpreted to interfere with the Attorney General’s rights to petition the Department under ▇.▇. ▇. 164, § 93, or otherwise under law or regulation, for a review of the Company shall be true and correct as or any reason. The signatories listed below represent that they are authorized on behalf of their principals to enter into this Settlement Agreement. By its attorney, /s/ ▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Senior Counsel Chief, Utilities Division Unitil Service Corp. Office of the date of this Agreement Attorney General ▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ One Ashburton Place Hampton, NH 03842 ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Dated: November 29, 2006 Dated: November 29, 2006 Fitchburg Gas and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinElectric Light Company ) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.D.T.E 06-
Appears in 1 contract
Sources: Settlement Agreement (Unitil Corp)
Conditions. The obligations of the Underwriter to purchase the Shares under this Agreement are subject to the satisfaction of each of the following conditions or waiver thereof by the Underwriter:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company contained in this Agreement shall be true and correct as of the date of this Agreement hereof and the date of at the Closing (except those representations and warranties that by their terms speak specifically as of Date. On or prior to the date of this Agreement or some other date shall be true and correct as of such date)Closing Date, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company and each other party hereto (other than the Underwriter) shall have performed in all material respects or complied with all of its obligations hereunder theretofore the agreements and satisfied all conditions on their respective parts to be performed (without giving effect to any qualification as to materiality performed, complied with or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementsatisfied hereunder.
(b) The obligation Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b) under the Act; all filings required by Rule 433 under the Act shall have been made, and no such filings shall have been made without the consent of the Underwriter (which consent shall not have been unreasonably withheld); and no stop order or notice suspending the effectiveness of or preventing the use of the Registration Statement or preventing or suspending the use of the Final Prospectus of any Issuer Free Writing Prospectus shall have been issued, and no proceedings or examination for such purpose shall have been instituted or threatened. Any request of the Commission for inclusion of additional information in the Registration Statement shall have been complied with. No other injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated hereunder, including the issuance of any stop order suspending the qualification or exemption from qualification of any of the Shares in any jurisdiction, and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company to consummate the Closing shall after due inquiry, be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct pending or contemplated as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) The obligation of each No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Investor Closing Date, prevent the consummation of the Offering or any of the transactions contemplated hereunder. No Proceeding shall be pending or, to the knowledge of the Company after due inquiry, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Shares, and (B) would not, individually or in the aggregate, have a Material Adverse Effect, except as disclosed in the Registration Statement and the Company Final Prospectus.
(d) Except as may be disclosed in the Registration Statement, subsequent to consummate the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof after the date hereof), the Final Prospectus (exclusive of any supplement thereto), or any Issuer Free Writing Prospectus (exclusive of any supplement thereto), there shall not have been any material adverse change having a Material Adverse Effect.
(e) The Underwriter shall have received on the Closing shall be subject to the following additional conditionsDate:
(i) certificates dated the Closing Date, signed by (1) no provision of any applicable law or regulation the Chief Executive Officer and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor principal financial or accounting officer of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActCompany, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities on behalf of the Company would be aggregated with Company, to the Investor’s securities effect that (a) the representations and warranties set forth in Section 4 hereof, are true and correct, as of the date hereof and at the Closing Date, (b) the Company for purposes of any bank regulation has performed or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities complied with all of the Company outstanding agreements and satisfied all conditions on its part to be performed, complied with or satisfied hereunder, (c) at the Closing Date or since the date of the Closing most recent financial statements in or incorporated by reference into the Registration Statement and the Final Prospectus (exclusive of any amendment or supplement thereto after giving effect to the purchase of the Investor Shares contemplated herebydate hereof); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than as disclosed in or incorporated by reference into the Registration Statement and the Final Prospectus or contemplated hereby, no event or events have occurred, no information has become known nor does any condition set forth exist that, individually or in Section 10.3(ethe aggregate, would have a Material Adverse Effect, (d) since the date of the Branch Purchase Agreement most recent financial statements in or incorporated by reference into the Registration Statement and the Final Prospectus (exclusive of any amendment or supplement thereto after the Applicable Time), other than as disclosed in or incorporated by reference into the Registration Statement and the Final Prospectus or contemplated hereby, the Company has not incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are materially adverse to the Company, taken as a whole, or entered into any transactions not in the ordinary course of business that are materially adverse to the business, financial condition or results of operations of the Company, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company other than pursuant to the terms of outstanding debt and equity securities that is materially adverse to the business, financial condition or results of operations of the Company, taken as a whole, (e) the Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto, no stop order or notice suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Final Prospectus or any Issuer Free Writing Prospectus has been issued, and no proceedings or examinations for that purpose have been instituted or, to the knowledge of such officers, threatened; and (f) the sale of the Shares has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company, certifying such matters as the Underwriter may reasonably request.
(iii) the opinion of Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Company, dated the Closing Date, in form reasonably satisfactory to the Underwriter covering such matters as are customarily covered in such opinions.
(iv) the opinions of ▇▇▇▇▇ & Lardner LLP, special intellectual property counsel to the Company and Buc & ▇▇▇▇▇▇▇▇▇, special regulatory counsel to the Company, dated the Closing Date, in form reasonably satisfactory to the Underwriter covering such intellectual property and regulatory matters, respectively, as are customarily covered in such opinions.
(f) The Underwriter shall have received from Ernst & Young LLP, independent auditors, with respect to the Company’s acceptance , (i) a customary comfort letter, as of the proceeds of Applicable Time, in form and substance reasonably satisfactory to the Acceptable Financing (as defined Underwriter and Ernst & Young LLP, with respect to the financial statements and certain financial information contained in the Branch Purchase Agreement)or incorporated by reference into the Registration Statement and the Final Prospectus, and (ii) a customary “bring down” comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter and Ernst & Young LLP, to the effect that Ernst & Young LLP reaffirms the statements made in its letter furnished pursuant to clause (i) above.
(g) The Underwriter shall have been satisfied received copies of all opinions, certificates, letters and other documents delivered under or waivedin connection with the Offering or any transaction contemplated hereunder.
(h) The Underwriter shall have received the Registration Statement and the Final Prospectus.
Appears in 1 contract
Conditions. (a) The obligation Your obligations under this Agreement in respect of the Investor to consummate the Closing each Option shall be subject to the condition that all representations and warranties and other statements of the Company shall be herein are true and correct at and as of the date of this Agreement and the date closing of the Closing (except those representations purchase 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 sale of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse EffectOption; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation performed in respect of each of the Investor such Option; and the Company to consummate the Closing shall be subject to the following additional conditions:
(1a) no provision Counsel for the Company specified in Annex III hereto shall have furnished to you their written opinion, dated the date of such closing, in form and substance reasonably satisfactory to you, to the effect set forth in Annex III hereto.
(b) On the date of such closing, the Company shall have furnished to you such appropriate further information, certificates and documents as you may reasonably request.
(c) Since the respective dates as of which information is given in the Exchange Act Reports (as defined in Annex II hereto) to and including the date of such closing, there shall not have been any applicable law material adverse change in the capital stock or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any long-term debt of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor Company or any of its affiliates to file a prior notice under the Change in Bank Control Actsubsidiaries or any material adverse change, or any development that is known to the Company to involve a prospective material adverse change, in or affecting the business, properties, financial position, shareholders' equity or results of operations of the Company and its subsidiaries, otherwise seek prior approval than as set forth or non-objection contemplated in the Exchange Act Reports.
(d) Up to and including the date of such closing, there shall not have occurred any state of the following: (i) a suspension or federal banking regulatormaterial limitation in trading in securities generally on the New York Stock Exchange or the Nasdaq National Market; (ii) require a suspension or material limitation in trading in the Investor Company's securities on the Nasdaq National Market; (iii) a general moratorium on commercial banking activities declared by either Federal or any of its affiliates to become a bank holding companyNew York State authorities; or (iiiiv) cause the Investoroutbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or wary, together with any other person whose securities of if the Company would be aggregated with the Investor’s securities of the Company for purposes effect of any bank regulation such event specified in this Clause (iv) in your reasonable judgment makes it impracticable or law, inadvisable to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to proceed with the purchase of the Investor Shares contemplated hereby); and
(3) Option on the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined terms and in the Branch Purchase manner contemplated in this Agreement), shall have been satisfied or waived.
Appears in 1 contract
Conditions. On the Effective Date (and after giving effect to the terms hereof), (a) The obligation there shall exist no Event of the Investor to consummate the Closing shall be subject to the condition that Default or Default, (b) all representations and warranties and other statements made by the Issuer herein or in any of the Company Related Documents to which it is a party shall be true and correct with the same effect as though such representations and warranties had been made at and as of such time, (c) except as described in the date Official Statement or any other documents provided by the Issuer to the GSEs and approved by the GSEs prior to the Effective Date, no material adverse change shall have occurred in the condition (financial or otherwise) or operations of this Agreement and the Issuer between the date of the Closing Issuer’s most recent audited financial statements and the Effective Date, and no transactions or obligations having a material adverse effect on the condition (except those representations and warranties that financial or otherwise) or operations of the Issuer, whether or not arising from transactions in the ordinary course of the Issuer’s business, shall have been entered into by their terms speak specifically as of the Issuer subsequent to the date of this Agreement the Issuer’s most recent audited financial statements, (d) and such Official Statement (including any amendments or some other date supplements prepared subsequent to its date) shall be true and correct have been furnished to the GSEs prior to the distribution thereof which does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which made, not misleading, (e) except as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually described in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality Official Statement no 16 transaction or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect event shall have occurred and be continuing with respect to either no change shall have occurred in the condition (xfinancial or otherwise) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation operations of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and Issuer between the date of the Closing (except those 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); Issuer’s most recent audited financial statements and the condition that Effective Date which materially adversely affects the Investor shall have performed all issuance of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
Bonds, the security for any of the Bonds, or the Issuer’s ability to repay when due its obligations under this Agreement, any of the Bonds and the Related Documents, and (2f) the purchase except as otherwise expressly agreed by the Investor of GSEs, evidence reasonably satisfactory to the Investor Shares shall not GSEs that all existing liquidity and credit facilities relating to the Bonds have been (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Actwill be, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3applicable CLF Effective Date for Series) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedterminated.
Appears in 1 contract
Sources: Reimbursement Agreement (Federal Home Loan Mortgage Corp)
Conditions. The obligations of the Initial Purchaser to purchase the Units under this Agreement are subject to the satisfaction of each of the following conditions or waiver thereof by the Initial Purchaser:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties of each Obligor and other statements its Subsidiaries contained in this Agreement and in each of the Company Documents shall be true and correct as of the date of this Agreement hereof and at the date Closing Date. On or prior to the Closing Date, each Obligor and each other party to the Documents (other than the Initial Purchaser) shall have performed or complied with all of the Closing (except those representations agreements and warranties that by satisfied all conditions on 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 for such failures respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as satisfy would not havenot, individually or in the aggregate, have a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation No injunction, restraining order or order of the Company to consummate the Closing any nature by a Governmental Authority shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct have been issued as of the date Closing Date that would prevent or materially interfere with the consummation of this Agreement the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the date qualification or exemption from qualification of any of the Units in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of any Obligor, be pending or contemplated as of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) The obligation of each No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Investor and Closing Date, prevent the Company to consummate consummation of the Closing shall be subject to the following additional conditions:
(1) no provision Offering or any of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby under the Documents. No Proceeding shall be pending or, to the knowledge of any Obligor, threatened other than Proceedings that (A) if adversely determined would not, individually or prohibit in the Investor from owning aggregate, adversely affect the issuance or voting marketability of the Units, and (B) would not, individually or in the aggregate, have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Final Offering Circular, there shall not have been any Material Adverse Change.
(e) The Units shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL market.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Issuers or any securities of the Issuers (including, without limitation, the placing of any of the Investor Shares;
(2foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) the purchase by the Investor any "nationally recognized statistical rating organization" as such term is defined for purposes of the Investor Shares shall not (iRule 436(g)(2) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the Investor outlook for any rating of the Issuers or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of Issuers by any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); rating organization and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 1 contract
Conditions. (a) The obligation of the Investor Initial Purchaser to consummate purchase the Closing shall be Notes under this Agreement is subject to the condition that all performance by each of the Company and each of the Guarantors of their respective covenants and obligations hereunder and the satisfaction of each of the following conditions:
(a) All of the representations and warranties and other statements of the Company and the Subsidiaries contained in this Agreement and in each of the Transaction Documents shall be true and correct as of the date of this Agreement hereof and the date of at the Closing (Date, except those to the extent that the failure of such 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or “material,” “materiality,” “Material Adverse Effect contained thereinEffect” or any similar terms, qualifications or limitations to such representations and warranties) as to be true or correct individually or in the aggregate would not havereasonably be expected to have a Material Adverse Effect. On or prior to the Closing Date, the Company and each other party to the Transaction Documents (other than the Initial Purchaser) shall have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Transaction Documents (other than conditions to be satisfied by such other parties, which the failure to so satisfy would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; ).
(b) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the condition Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Transaction Documents. No stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company, be pending or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Transaction Documents. No Proceeding shall be pending or, to the knowledge of the Company, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Pricing Disclosure Package, there shall not have been any event that would have a Material Adverse Effect.
(e) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(f) The Initial Purchaser shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (1) the Chief Executive Officer of the Company and (2) the Chief Financial Officer of the Company, on behalf of the Company, to the effect that (a) the representations and warranties set forth in Section 4 hereof and in each of the Transaction Documents are true and correct in all respects, except to the extent that the Company shall have performed in all material respects all failure of its obligations hereunder theretofore to be performed such representations and warranties (without giving effect to any qualification as to materiality or “material,” “materiality,” “Material Adverse Effect contained therein); Effect” or any similar terms, qualifications or limitations to such representations and warranties) to be true or correct individually or in the condition that aggregate would not reasonably be expected to have a Material Adverse Effect, with the same force and effect as though expressly made at and as of the Closing Date, (b) the Company has performed and complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and since the date of the Closing most recent financial statements in the Pricing Disclosure Package (except those representations and warranties that by their terms speak specifically as exclusive of any amendment or supplement thereto after the date of this Agreement hereof), no event or some other date shall events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would reasonably be true and correct as of such date); and the condition that the Investor shall expected to have performed all of its obligations hereunder theretofore to be performed.
a Material Adverse Effect, (cd) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on since the date of the Closing most recent financial statements in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto after giving effect to the purchase of the Investor Shares contemplated herebydate hereof); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than as described in the condition set forth in Section 10.3(e) Pricing Disclosure Package or contemplated hereby, neither the Company nor any Subsidiary of the Branch Purchase Agreement Company has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company and the Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, financial condition or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company or any Subsidiary of the Company that is material to the business, financial condition or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, and (e) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company and each Guarantor, certifying such matters as the Initial Purchaser may reasonably request covering such matters as are customarily covered in such certificates.
(iii) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in the form previously approved by the Initial Purchaser or its counsel.
(iv) the opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, counsel to the Company, dated the Closing Date and addressed to the Initial Purchaser, substantially in the form of Exhibit A attached hereto.
(v) the opinion of Holme ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, local Colorado counsel to the Company, dated the Closing Date and addressed to the Initial Purchaser, substantially in the form of Exhibit B attached hereto.
(vi) the opinion of Carlin, Edwards, ▇▇▇▇▇ & ▇▇▇▇, PLLC, local Michigan counsel to the Company, dated the Closing Date and addressed to the Initial Purchaser, substantially in the form of Exhibit C attached hereto.
(vii) the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, local Oregon counsel to the Company, dated the Closing Date and addressed to the Initial Purchaser, substantially in the form of Exhibit D attached hereto.
(viii) the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, General Counsel of the Company, dated the Closing Date and addressed to the Initial Purchaser, substantially in the form of Exhibit E attached hereto.
(ix) the opinion of Proskauer Rose LLP, counsel to the Initial Purchaser, dated the Closing Date, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(g) The Initial Purchaser shall have received (A) a customary comfort letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent auditors, with respect to the Company’s acceptance , dated as of the proceeds date hereof, in form and substance satisfactory to the Initial Purchaser and its counsel, with respect to the financial statements and certain financial information contained in the Pricing Disclosure Package and (B) a customary bring-down comfort letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated the Closing Date, in form and substance satisfactory to the Initial Purchaser and its counsel, to the effect that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP reaffirms the statements made in its letter furnished pursuant to clause (A) with respect to the financial statements and certain financial information contained in the Pricing Disclosure Package.
(h) Each of the Acceptable Financing (as defined in the Branch Purchase Agreement), Transaction Documents shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of each of the Transaction Documents.
(i) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any transaction contemplated in the Transaction Documents.
(j) The terms of each Transaction Document shall conform in all material respects to the description thereof in the Pricing Disclosure Package.
(k) The Collateral Agent shall have received (with a copy for the Initial Purchaser) on the Closing Date:
(i) modifications to the Mortgages in connection with the issuance of the Notes;
(ii) such other approvals, opinions, or documents as the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Collateral Agent; and
(iii) the Collateral Agent and its counsel shall be satisfied or waivedthat (A) the Lien granted to the Collateral Agent, for the benefit of the Secured Parties in the collateral described above is of the priority described in the Pricing Disclosure Package; and (B) no Lien exists on any of the collateral described above other than the Lien created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement, in each case subject to the Permitted Liens.
Appears in 1 contract
Conditions. (a) The A. In addition to Purchaser’s absolute right to terminate this Contract for any reason at any time during the Review Period, the obligation of Purchaser under this Contract to purchase the Investor to consummate the Closing shall be Property from Seller is subject to the condition that satisfaction of each of the following conditions on or prior to the Closing Date, any of which conditions may be waived in whole or in part by Purchaser by written waiver at or prior to the Closing Date:
1. Title to the Real Property shall be good and marketable as required herein, free and clear of all liens and encumbrances, and subject to no exceptions other than the Permitted Exceptions and the Escrow Agent shall be prepared to issue, an owner’s title insurance policy pursuant to the Title Commitment insuring the title to the Real Property, subject only to the Permitted Exceptions, in the amount of the Purchase Price or such lesser amount as Purchaser, in its sole discretion, shall determine, and with such endorsements as Purchaser shall determine. Seller shall discharge all liens against the Property at Closing.
2. Seller shall have performed, observed and complied with all covenants, agreements and conditions required by this Contract to be performed by, observed and complied with on its part either on or prior to the Closing Date.
3. All of Seller’s representations and warranties and other statements of the Company contained herein shall be true and correct in all material respects as of the date Closing Date, and Seller will deliver to Purchaser at Closing a certificate to that effect (or disclosing any representations or warranties which are no longer true and accurate).
4. The physical condition of this Agreement the Property and the date title for the Property shall not have materially changed since the conclusion of the Review Period, except as disclosed to and accepted by Purchaser.
5. All tenants of the Leases shall be occupying the Property, and none of them shall be in default in the payment of rent or performance of any other material obligation, except as disclosed to and accepted by Purchaser.
6. Purchaser shall have received the Estoppel Certificates and SNDA Agreements as required pursuant to Section 7(I).
7. Purchaser and the Bound Parties shall have executed the Non-compete/Solicitation Agreements. In the event any of the foregoing conditions to the Closing are not satisfied or waived in writing by Purchaser as of the Closing Date, then, Purchaser may either (except those i) extend the date for Closing for a maximum of thirty (30) days until such conditions are satisfied, or (ii) terminate this Contract and have the Deposit refunded together with accrued interest or (iii) waive in writing the satisfaction of any such conditions, in which event this Contract shall be read as if such conditions no longer existed; provided, however that, if such failure of condition also constitutes or is accompanied by a default by Seller hereunder, Purchaser shall have all rights and remedies as set forth in Section 13 hereof. Notwithstanding that certain of Seller’s representations and warranties may be limited to the extent of actual knowledge of the facts stated therein, it shall be a condition precedent to Purchaser’s obligation to go to Settlement that by their terms speak specifically the facts stated in all such representations and warranties shall be correct as of the date time of Settlement.
B. The obligations of Seller under this Agreement Contract to sell the Property to Purchaser are subject to the satisfaction of each of the following conditions:
1. Purchaser shall have performed, observed and complied with all covenants, agreements and conditions required by this Contract to be performed by, observed and complied with on its part either on or some other date prior to the Closing Date.
2. All of Purchaser’s representations and warranties contained herein shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); respects.
3. Seller and the condition that since the date hereof no Material Adverse Effect Bound Parties shall have occurred and be continuing with respect to either (x) executed the Company or (y) Non-compete/Solicitation Agreements. In the Company after giving effect event any of the foregoing conditions to the transactions contemplated Closing are not satisfied or waived in writing by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct Seller as of the date of Closing Date, then, Seller may terminate this Agreement Contract and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date Deposit shall be true paid to Purchaser and correct as of such date); Seller and the condition that the Investor Purchaser shall have performed no further responsibility to each other; provided, however that, if such failure of condition also constitutes or is accompanied by a default by Purchaser hereunder, Seller shall have all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor rights and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions remedies as set forth in Section 10 of 14 hereof and the Branch Purchase Agreement, other than the condition set forth indemnity contained in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), 3A hereof shall have been satisfied or waivedsurvive.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wheeler Real Estate Investment Trust, Inc.)
Conditions. (a) The obligation of the Investor All warranties and representations made by Seller herein to consummate Purchaser (except for any such representation or warranty that expressly relates solely to a date prior to the Closing shall be subject to the condition that all representations and warranties and other statements of the Company Date), after disregarding any materiality qualifications contained therein, shall be true and correct on and as of the Closing Date, with the same effect as if such warranties and representations had been made by Seller to Purchaser on and as of the Closing Date, with only such exceptions as would not, in the aggregate, be reasonably expected to have a material adverse impact on the Assets or the operation of the Stations;
(b) Seller shall have performed and complied in all material respects, after disregarding any materiality qualifications contained therein, with all agreements, covenants, and conditions herein required to be performed or complied with on Seller's part on or prior to the Closing Date, with only such exceptions as would not, in the aggregate, be reasonably expected to have a material adverse impact on the Assets or the operation of the Stations;
(c) each of the Material Consents shall have been duly obtained and delivered to Purchaser, with no material adverse change to the terms of the Assumed Contracts with respect to which such Material Consent shall have been obtained, unless Purchaser shall have consented in writing to such change;
(d) Seller shall be the holder of the FCC Licenses and there shall not have been any modification with respect to such FCC Licenses which has a materially adverse effect on either Station or the conduct of its business or operations other than proceedings generally applicable to the television broadcast industry;
(e) no proceeding shall be pending, the effect of which would be to revoke, cancel, fail to renew, suspend, or adversely modify the FCC Licenses;
(f) Seller shall have made, or shall stand willing and able to make, all deliveries to Purchaser required to be made pursuant to this Agreement;
(g) between the date of this Agreement and the date Closing Date, there shall have been no material adverse change in the condition of either Station or of the Closing Assets;
(except those representations and warranties that by their terms speak specifically as h) the consent of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures any governmental authority required to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in obtained for the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all consummation of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by this Agreement shall have been obtained, and the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject waiting period with respect to the condition that all representations and warranties and other statements of filings made by the Investor shall be true and correct as of parties under the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor HSR Act shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law expired or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)been terminated; and
(3i) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), FCC Consent shall have been satisfied granted without any materially adverse condition to Purchaser, such FCC Consent shall be in full force and effect, and, unless waived by the Purchaser, such FCC Consent shall have become a Final Order. For the purpose of this Agreement, an action or waivedorder of the FCC granting the FCC's Consent shall be deemed to have become a "Final Order" when such action or order shall have been issued by the FCC in writing, setting forth the FCC Consent, and (i) so long as such action or order shall not have been reversed, stayed, enjoined, set aside, annulled or suspended, and (ii) so long as no protest, request for stay, reconsideration or review by the FCC on its own motion or by any third party, petition for FCC reconsideration or for rehearing, application for FCC review, or judicial appeal of such action or order shall be pending, when the period provided by law for initiating such protest, request for stay, reconsideration or review by the FCC on its own motion, petition for FCC reconsideration or for rehearing, application for FCC review, or judicial appeal of such action or order shall have expired.
Appears in 1 contract
Sources: Asset Purchase Agreement (Valuevision International Inc)
Conditions. The obligations of the Initial Purchasers to purchase the Notes under this Agreement are subject to the performance by each of the Company and each of the Guarantors of their respective covenants and obligations hereunder and the satisfaction of each of the following conditions:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company Company, Parent and the Subsidiaries, that are qualified by materiality or the possibility of a Material Adverse Effect and contained in this Agreement and in each of the other Transaction Documents, shall be true and correct, and the representations and warranties of the Company, Parent and the Subsidiaries contained in this Agreement and in each of the other Transaction Documents that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects as of the date hereof and at the Closing Date. On or prior to the Closing Date, the Company, the Guarantors and each other party to the Transaction Documents (other than the Initial Purchasers) shall have performed or complied in all material respects with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Transaction Documents (other than conditions to be satisfied by such parties, which the failure to be so satisfied would not, individual or in the aggregate, reasonably be expected to have a Material Adverse Effect. It being understood and agreed that for purposes of this Agreement Agreement, in the event that Jefferies determines that a Material Adverse Effect has occurred in any case and the date Company, Parent or a Guarantor seeks to dispute such determination, the Company, Parent or such Guarantor shall bear the burden of proof to demonstrate by clear and convincing evidence that the definition of Material Adverse Effect has not been satisfied.
(b) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued or threatened as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the other Transactions under the Transaction Documents; and no stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company after due inquiry, be pending or contemplated as of the Closing Date.
(except those c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the other Transactions under the Transaction Documents. No Proceeding shall be pending or, to the knowledge of the Company after reasonable inquiry, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Time of Sale Document and the Final Offering Memorandum, there shall not have been any Material Adverse Change.
(e) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of Parent or any securities of Parent (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(f) The Representative shall have received on the date hereof and/or the Closing Date (as specified below):
(i) certificates dated the Closing Date, signed by (1) the Chief Executive Officer and (2) the principal financial or accounting officer of Parent, on behalf of the Company, Parent and the Subsidiaries, to the effect that (a) the representations and warranties that by their terms speak specifically as set forth in Section 4 hereof, in each of the date Transaction Documents and the Perfection Certificate that are qualified by materiality or Material Adverse Effect shall be true and correct, and the representations and warranties in each of this Agreement the Transaction Documents and the Perfection Certificate that are not qualified by materiality or some other date Material Adverse Effect shall be true and correct in all material respects as though expressly made at and as of the Closing Date, except for the representations and warranties that were expressly as of a certain date, then as of such datedate (b) each of the Company and the Guarantors has performed and complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Time of Sale Document and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), except for such failures to be so true and correct (without giving effect to no event or events have occurred, no information has become known nor does any qualification as to materiality or Material Adverse Effect contained therein) as would not havecondition exist that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; , (d) since the date of the most recent financial statements in the Time of Sale Document and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), other than as described in the Time of Sale Document and the Final Offering Memorandum or contemplated hereby, neither Parent nor any subsidiary of Parent has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to Parent and its subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations or prospects of Parent and its subsidiaries, taken as a whole, and there has not been any change in the capital stock or short-term or long-term indebtedness of Parent or any subsidiary of Parent that is material to the business, condition (financial or otherwise) or results of operations or prospects of Parent and its subsidiaries, taken as a whole, and (e) the sale of the Notes has not been enjoined (temporarily or permanently);
(ii) a certificate, dated the Closing Date, executed by the Secretary of Parent on behalf of the Company and each Guarantor, certifying such matters as the Representative may reasonably request;
(iii) a certificate evidencing qualification by such entity as a foreign corporation in good standing issued by the Secretaries of State (or comparable office) of each of the jurisdictions in which each of the Company and the Guarantors operates as of a date within five days prior to the Closing Date;
(iv) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of Parent substantially in the form previously approved by the Representative or its counsel;
(v) the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel to the Company and the Guarantors, dated the Closing Date, in the form of Exhibit A attached hereto;
(vi) the opinion of ▇▇▇▇▇▇ and Calder, Cayman Islands counsel to the Company and the Guarantors, shall have performed furnished to the Initial Purchasers, at the request of the Company or Parent, its written opinion, dated the Closing Date and addressed to the Initial Purchasers, substantially in the form of Exhibit B attached hereto;
(vii) an opinion, dated the Closing Date, of ▇▇▇▇▇ Day, counsel to the Initial Purchasers, in form satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions;
(viii) the Initial Purchasers shall have received from UHY LLP, independent auditors, with respect to Parent and its subsidiaries, (A) a customary comfort letter, dated the date hereof, in form and substance reasonably satisfactory to the Initial Purchasers and their counsel, with respect to the financial statements and certain financial information contained in the Time of Sale Document, and (B) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and their counsel, to the effect that UHY LLP reaffirms the statements made in its letter furnished pursuant to clause (A) with respect to the financial statements and certain financial information contained in the Time of Sale Document and the Final Offering Memorandum;
(ix) an Officers’ Back-Up Certificate dated as of the date hereof and as of the Closing Date executed by the Chief Executive Officer and the Chief Financial Officer of Parent providing back-up disclosure support as specified therein, in form and substance reasonably satisfactory to the Initial Purchasers; and
(x) the Natixis Amendment shall have been entered into in a form and substance reasonably satisfactory to the Initial Purchasers.
(g) The terms of each Transaction Document shall conform in all material respects all to the description thereof in the Time of its obligations hereunder theretofore Sale Document and the Final Offering Memorandum. Each of the Company and Guarantors shall have executed and delivered, or caused to be performed delivered, to the Representative (without giving effect i) each of the Transaction Documents to which it is a party and (ii) the Notes being purchased by the Initial Purchasers at the Closing pursuant to this Agreement, in each case in form and substance reasonably satisfactory to the Representative.
(h) The Representative shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any qualification other Transaction contemplated in the Transaction Documents.
(i) The Collateral Agent shall have received (with a copy for the Initial Purchasers) on the Closing Date:
(i) appropriately completed copies of Uniform Commercial Code lien financing statements naming the Company and each Guarantor as to materiality or Material Adverse Effect contained therein); a debtor and the condition that since Collateral Agent as the secured party, or other similar instruments or documents to be filed under the Uniform Commercial Code of all jurisdictions or Companies Registry filings as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Collateral Agreements;
(ii) appropriately completed copies of Uniform Commercial Code Form UCC 3 termination statements, if any, necessary to release all Liens (other than the security interests, liens or encumbrances permitted under the Indenture and the Collateral Agreements) of any Person in any Collateral described in any Collateral Agreement previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC 11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date hereof no Material Adverse Effect shall have occurred and be continuing with respect reasonably near to either (x) the Closing Date, listing all effective financing statements which name the Company or any Guarantor (yunder its present name and any previous names) as the Company after giving effect to debtor, together with copies of such financing statements (none of which shall cover any Collateral described in any Collateral Agreement, other than such financing statements that evidence the transactions contemplated by Liens permitted under the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement Indenture and the date of the Closing (except those 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 dateCollateral Agreements); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2iv) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Actsuch other approvals, opinions, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require documents as the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor Collateral Agent may reasonably request in form and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect substance reasonably satisfactory to the purchase of the Investor Shares contemplated hereby)Collateral Agent; and
(3v) the conditions set forth in Section 10 Collateral Agent and its counsel shall be satisfied that (i) the Liens granted to the Collateral Agent, for the benefit of the Branch Purchase Agreement, Secured Parties in the Collateral described above is of the priority described in the Time of Sale Document and the Final Offering Memorandum; and (ii) no Lien exists on any of the Collateral described above other than the condition set forth Liens created in Section 10.3(e) favor of the Branch Purchase Agreement with respect Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement, in each case subject to the Company’s acceptance of Liens permitted under the proceeds of Indenture and the Acceptable Financing Collateral Agreements.
(as defined in the Branch Purchase Agreement), j) Provision shall have been satisfied made for the filing of all Uniform Commercial Code financing statements or waivedother similar financing statements and Uniform Commercial Code Form UCC-3 termination statements.
Appears in 1 contract
Conditions. (a) The obligation of the parties hereto is subject to the following conditions:
(i) no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making the consummation of the transactions contemplated hereby illegal or otherwise enjoining, restraining or prohibiting consummation of the transactions contemplated by this Agreement;
(ii) all conditions precedent to the closing set forth in the Business Combination Agreement shall have been satisfied (which shall be deemed satisfied if mutually determined by the applicable parties to the Business Combination Agreement and other than those conditions under the Business Combination Agreement that, by their nature are to be satisfied in connection with the closing, including to the extent that any such condition is dependent upon the consummation of this Agreement or waived by the applicable parties to the Business Combination Agreement as provided therein) and the closing of the Business Combination shall have occurred; and
(iii) all conditions precedent to the Closing set forth in the Purchase Agreement shall have been satisfied (which shall be deemed satisfied if mutually determined by the applicable parties to the Purchase Agreement and other than those conditions under the Purchase Agreement that, by their nature are to be satisfied in connection with the Closing, including to the extent that any such condition is dependent upon the consummation of this Agreement or waived by the applicable parties to the Purchase Agreement as provided therein).
(b) The obligation of the Investor to consummate the Closing transactions contemplated by this Agreement shall be subject to the condition conditions (which may be waived in writing (email being sufficient) by the Investor) that (i) all representations and warranties and other statements of the Company contained in the Transaction Documents shall be true and correct in all material respects at and as of the date of this Agreement and the date of the Closing (except those other than (A) 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 for such failures to be so true and correct (without giving effect to any qualification are qualified as to materiality or Material Adverse Effect contained therein(as defined below), which representations and warranties shall be true and correct in all respects and (B) those representations and warranties that speak as would not haveof a specified earlier date, individually in the aggregate, a Material Adverse Effect; the condition that the Company which shall have performed be so true and correct in all material respects (or, if qualified by materiality, in all respects) as of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinsuch specified earlier date); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (xii) the Company and the DevvStream shall have performed, satisfied and complied in all material respects with all obligations, covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or (y) the Company after giving effect complied with by it at or prior to the transactions contemplated by the Branch Purchase AgreementClosing.
(bc) The obligation of the Company to consummate the Closing transactions contemplated by this Agreement shall be subject to the condition conditions (which may be waived in writing (email being sufficient) by the Company) that (i) all representations and warranties and other statements of the Investor contained in the Transaction Documents shall be true and correct in all material respects at and as of the date of this Agreement and the date of the Closing (except other than (A) representations and warranties that are qualified as to materiality or Material Adverse Effect (as defined below), which representations and warranties shall be true and correct in all respects and (B) those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date a specified earlier date, which shall be so true and correct in all material respects (or, if qualified by materiality, in all respects) as of such specified earlier date); and the condition that (ii) the Investor shall have performed performed, satisfied and complied in all of its obligations hereunder theretofore material respects with all obligations, covenants, agreements and conditions required by the Transaction Documents to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject , satisfied or complied with by it at or prior to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedClosing.
Appears in 1 contract
Sources: Subscription Agreement (Focus Impact Acquisition Corp.)
Conditions. (a) The obligation obligations of the Investor to consummate the Closing Purchasers under this Agreement shall be subject to the condition that all representations and warranties and other statements of the Company shall be herein are true and correct at and as of the date of this Agreement and the date closing of the Closing (except those representations purchase and warranties that by their terms speak specifically as sale of the date of this Agreement or some other date shall be true and correct as of such date)Convertible Notes, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor , and the Company to consummate the Closing shall be subject to the following additional conditions:
(1a) Counsel for the Company specified in Annex III hereto shall have furnished to you its written opinion, dated the date of such closing, in form and substance satisfactory to each Purchaser, to the effect set forth in Annex III hereto.
(b) On the date of such closing, the Company shall have furnished to each Purchaser such appropriate further information, certificates and documents as such Purchaser may reasonably request.
(c) The representations and warranties of the Company in this Agreement shall be correct when made and at the time of the Closing.
(d) The Company shall have performed and complied with all agreements and conditions contained in this Agreement required to be performed or complied with by it prior to or at the Closing and after giving effect to the issue and sale of the Convertible Notes, no provision Default or Event of Default shall have occurred and be continuing.
(e) The Company shall have delivered to each Purchaser an Officer's Certificate, dated the date of the Closing, certifying that the conditions specified in Sections 5(c), 5(d) and 5(k) have been fulfilled.
(f) The Company shall have delivered to each Purchaser a certificate certifying as to the resolutions attached thereto and other corporate proceedings relating to the authorization, execution and delivery of the Convertible Notes and the Agreements.
(g) On the date of the Closing the purchase of Convertible Notes by each Purchaser shall (i) be permitted by the laws and regulations of each jurisdiction to which such Purchaser is subject, without recourse to provisions (such as Section 1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance companies without restriction as to the character of the particular investment, (ii) not violate any applicable law or regulation and no judgment(including, injunctionwithout limitation, order Regulation U, T or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any X of the Investor Shares;Board of Governors of the Federal Reserve System) and (iii) not Subject such Purchaser to any tax, penalty or liability under or pursuant to any applicable law or regulation, which law or regulation was not in effect on the date hereof. If requested by any Purchaser, such Purchaser shall have received an Officer's Certificate certifying as to such matters of fact as such Purchaser may reasonably specify to enable such Purchaser to determine whether such purchase is so permitted.
(2h) The Company shall sell the purchase by the Investor entire principal amount of the Investor Shares shall not Convertible Notes scheduled to be sold at the Closing as specified in Schedule I hereto.
(i) require Without limiting the Investor provisions of Section 6(f), the Company shall have paid on or before the Closing the fees, charges and disbursements of the Purchasers' special counsel.
(j) A Private Placement number issued by Standard & Poor's CUSIP Service Bureau (in cooperation with the Securities Valuation Office of the National Association of Insurance Commissioners) shall have been obtained for the Convertible Notes.
(k) The Company shall not have changed its jurisdiction of incorporation or been a party to any merger or consolidation and shall not have succeeded to all or any substantial part of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection liabilities of any state or federal banking regulator; (ii) require the Investor or other entity, at any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on time following the date of the Closing most recently filed Exchange Act Report (after giving effect to the purchase of the Investor Shares contemplated herebydefined below); and.
(31) All corporate and other proceedings in connection with the conditions set forth in Section 10 of the Branch Purchase Agreementtransactions contemplated by this Agreement and all documents and instruments incident to such transactions shall be satisfactory to each Purchaser and its special counsel, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), and each Purchaser and its special counsel shall have been satisfied received all such counterpart originals or waivedcertified or other copies of such documents as such Purchaser or it may reasonably request.
Appears in 1 contract
Conditions. (ai) The obligation of the Investor Purchasers to consummate purchase the Closing shall be Units under this Agreement is subject to the condition that all satisfaction of each of the following conditions:
(a) All the representations and warranties of Terex and the other statements of the Company Terex Entities contained in this Agreement shall be true and correct in all material respects (except that any representation or warranty that already contains a materiality exception therein, in each such case shall be true and correct as of the date of this Agreement written) at and the date as of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company Date after giving effect to the transactions contemplated by the Branch Purchase AgreementDocuments, with the same force and effect as if made on and as of such date. On or prior to the Closing Date, each of Terex and the other Terex Entities shall have performed or complied in all material respects with all of the agreements and satisfied in all material respects all conditions on their part to be performed, complied with or satisfied pursuant to the Documents.
(b) The obligation of the Company to consummate the Closing Offering Circular shall be subject have been printed and copies distributed to the condition that all representations Purchasers not later than 12:00 noon, New York City time, on April 30, 1995 or at such later date and warranties and other statements of time as the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedPurchasers may approve.
(c) The obligation No injunction, restraining order or order of each any nature by a Governmental Authority shall have been issued as of the Investor Closing Date that would prevent or interfere with the issuance and sale of the Company Units; and no stop order suspending the qualification or exemption from qualification of any of the Units in any jurisdiction designated by the Purchasers pursuant to consummate Section 5(e) hereof shall have been issued and no Proceeding for that purpose shall have been commenced or be pending or contemplated.
(d) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any Governmental Authority that would, as of the Closing Date, prevent the issuance or sale of the Units; and on the Closing Date, no Proceeding shall be subject pending against or affecting or, to the following additional conditions:knowledge of any of the Terex Entities after due inquiry, threatened against Terex or any of the Subsidiaries before any Governmental Authority, except for such Proceedings that if adversely determined could not, singly or in the aggregate, either (i) adversely affect the issuance or marketability of the Units or (ii) are reasonably likely to be adversely determined to Terex and if so adversely determined could have a Material Adverse Effect.
(e) Since the date as of which information is given in the Offering Circular,
(1) no provision there shall not have been any Material Adverse Change; and (2) other than as adequately disclosed in the Offering Circular, there shall not have been any material change in the capital stock or long-term debt, or material increase in short-term debt, of any applicable law Terex or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;Subsidiaries and (B) neither Terex nor any of the Subsidiaries shall have incurred any liability, direct or contingent, that, singly or in the aggregate, could have a Material Adverse Effect.
(2f) On the purchase by Closing Date, the Investor of the Investor Shares Purchasers shall not have received (i) require certificates dated the Investor Closing Date, signed by (A) the President and (B) a principal financial or any accounting officer of its affiliates Terex, on behalf of all of the Terex Entities, (x) confirming the matters set forth in paragraphs (a), (b), (c), (d) and (e) of this Section 9 and (y) certifying as to file a prior notice under such other matters as the Change in Bank Control ActPurchasers may reasonably request, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require a certificate, dated the Investor Closing Date, signed by the Secretary or any an Assistant Secretary of its affiliates to become a bank holding company; or each domestic Terex Entity, certifying such matters as the Purchasers may reasonably request and (iii) cause a certificate of solvency, dated the InvestorClosing Date, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities signed by the Investor chief financial officer of Terex on behalf of each Terex Entity substantially in the form previously approved by the Purchasers.
(g) The Purchasers shall have received on the Closing Date an opinion (reasonably satisfactory in form and substance to the Purchasers and counsel to the Purchasers), dated the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel to Terex, substantially in the form of Exhibit A hereto.
(h) The Purchasers shall have received on the Closing Date an opinion (in form and substance reasonably satisfactory to the Purchasers and counsel to the Purchasers), dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, general counsel to Terex, substantially in the form of Exhibit B hereto.
(i) The Purchasers shall have received on the Closing Date the opinions (in form and substance reasonably satisfactory to the Purchasers and counsel to the Purchasers), dated the Closing Date, of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, special Scottish counsel to Terex, (ii) Simeon & Associes, special French counsel to Terex, (iii) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Partner, special German counsel to Terex, (iv) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, special Italian counsel to Terex, and (v) ▇▇▇▇ & ▇▇▇▇, P.C., special Connecticut counsel to Terex, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Arsht & ▇▇▇▇▇▇▇, special Delaware counsel to Terex, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & Raife, special Iowa counsel to Terex, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, special Kentucky counsel to Terex, Butzel Long, special Michigan counsel to Terex, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special Mississippi counsel to Terex, ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Golden & ▇▇▇▇▇▇, special Oklahoma counsel to Terex, ▇▇▇▇▇▇, Padget, ▇▇▇▇▇▇ & ▇▇▇▇▇, special South Carolina counsel to Terex, and ▇▇▇▇▇ and ▇▇▇▇, special Wyoming counsel to Terex, in each case substantially in the form of Exhibit C hereto.
(j) The Purchasers shall have received on the Closing Date an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, in form and substance reasonably satisfactory to the Purchasers covering such other personsmatters as are customarily covered in such opinions.
(k) would represent more than 9.9% of any class of voting securities of the Company outstanding on The Purchasers shall have received from Price Waterhouse and Ernst & Young (i) a customary comfort letter, dated the date of the Closing (after giving effect Offering Circular, in form and substance reasonably satisfactory to the purchase of Purchasers, with respect to the Investor Shares contemplated herebyfinancial statements and certain financial information contained in the Offering Circular, and (ii) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Purchasers, to the effect that they reaffirm the statements made in the letter furnished pursuant to clause (i); and, except that the specified date referred to shall be a date not more than five days prior to the Closing Date.
(3l) The Operative Documents shall have been executed and delivered by all parties thereto and the conditions set forth in Section 10 Purchasers shall have received a fully executed original of the Branch Purchase Agreementeach Operative Document, other than the condition set forth Mortgages, in Section 10.3(ewhich case the Purchasers shall be supplied a copy of each such Mortgage.
(m) On or prior to the Closing Date, each Terex Entity, Legris and Potain, S.A. shall have entered into all of the Branch Purchase Agreement with respect agreements and consummated all of the transactions required to be consummated on or prior to the Company’s acceptance Closing Date described in, or contemplated by, the Offering Circular under the captions "Summary--The Refinancing," "Use of Proceeds" and "The Acquisition" in each case in form and substance reasonably satisfactory to the Purchasers, including, but not limited to, (i) the consummation of the Acquisition of PPM by Cranes and the Koehring Contribution and (ii) the issuance of one or more intercompany notes by PPM Europe and its subsidiaries in an aggregate principal amount reasonably satisfactory to the Purchasers in favor of Terex and the application of the proceeds therefrom to repay existing indebtedness of the Acceptable Financing (as defined in the Branch Purchase Agreement), PPM Europe and its subsidiaries. The Purchasers shall have been satisfied received all opinions, certificates, letters and other documents delivered under or waivedin connection with the Acquisition Transaction, including the Acquisition Agreements, and letters to the effect that the Purchasers may rely on such opinion, certificates, letters and other documents as if addressed to it.
Appears in 1 contract
Sources: Purchase Agreement (Terex Corp)
Conditions. 3.1 Completion of the sale and purchase of the Sale Shares and the Sale Loans under this Agreement is conditional upon the following conditions being fulfilled in all respects:
(a) The obligation the passing of the Investor Board Resolution and an ordinary resolution by the Purchaser's shareholders to consummate approve this Agreement and the Closing shall be subject transactions contemplated thereunder;
(b) the passing of the Board Resolution of the Sellers to approve this Agreement and the condition that all representations and warranties and other statements transactions contemplated thereunder;
(c) the valuation of the Company to be valued by an independent valuer and reviewed by auditor appointed by the Purchaser shall not be true and correct as less than KRW122,103,000,000;
(d) if required, the relevant authorities in Korea approving the transactions contemplated by this Agreement excluding the approval of the date change in the representative director of the Company which can happen only after the Completion Date;
(e) there being no law, or legally binding decision, order or disposition of the court or other government or statutory authorities that restricts or prohibits transferring of all or part of the Sale Shares or the Sale Loans to the Purchaser or modifies the terms and conditions of this Agreement or adversely affects performance of this Agreement;
(f) there being no issue with the antitrust filing to be filed with the Korea Fair Trade Commission;
(g) if required, Seller A shall assist the Purchaser to complete the acceptance of the report on succession to the Company's Casino business; SHARE PURCHASE AGREEMENT 5
(h) the receipt by the Purchaser of a legal opinion (in form and substance satisfactory to the Purchaser) issued by a firm of Korean legal advisers appointed by the Purchaser in relation to this Agreement and the transactions contemplated hereunder, as to the following (including but not limited to): (i) the due incorporation, shareholding structure, valid and continued existence of the Company; (ii) the validity, legality and enforceability of all relevant approvals, Licences, registrations, confirmation and/or permits for the Company to conduct its business as required under the laws and regulations in Korea; and (iii) that the entering into and completion of this Agreement and the transactions contemplated hereunder will not cause the Company to be in breach of any such approvals, Licences etc.;
(i) the Purchaser being satisfied, at its absolute discretion, with the results of its legal, financial and tax due diligence of the Company;
(j) the obtaining by the Sellers, to the Purchaser's satisfaction, of all necessary consents, authorisations or other approvals of any kind in connection with the entering into and performance by it of the terms of this Agreement which may be required by any regulatory authority or any relevant governmental agencies;
(k) the obtaining of the consent letter of auditors of the Company at the cost of the Purchaser to incorporation by reference of the English translation of their audit report in Form 6-K which has been prepared in accordance with accounting principles generally accepted in Korea for the year ended December 31, 2015;
(l) all obligations and covenants of the Sellers to be performed under this Agreement on or before the Completion Date having been duly performed;
(m) having obtained the resignation letters or agreement of the existing directors and statutory auditor of the Company stating that they voluntarily resign from their respective positions, and they have no claims against the Company; and
(n) there having been no adverse material change in the business and financial prospects of the Company and all Warranties given by Seller A remaining true and correct on the Completion Date.
3.2 Seller A shall provide or procure to be provided to the Purchaser all information in its possession or under its control that is required by the Purchaser for the purpose of satisfying any of the Conditions. Seller A undertakes that the Purchaser, its directors, officers, employees, advisors and agents, shall be given all reasonable access to the books, records and accounts of the Company for such purpose, subject to such limitations necessary to maintain the strict confidentiality of this Agreement and transactions contemplated herein.
3.3 Seller A undertakes to the Purchaser that there would be no transfer of any of the Sale Shares or the amount of the Sale Loans and no change to the share capital of the Company from the date of the Closing (except those representations signing of this Agreement and warranties that by their terms speak specifically as of prior to the date of Completion.
3.4 The Purchasers may at any time waive all or any of the Conditions in writing on or before 4:00 p.m. (Hong Kong time) on the Completion Date.
3.5 If the Conditions (other than the Condition in Clause 3.1(a)) have not all been fulfilled or waived before 4:00 p.m. (Hong Kong time) on the Completion Date by the Purchaser: SHARE PURCHASE AGREEMENT 6
(a) this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.lapse;
(b) The obligation of the Company to consummate the Closing Initial Deposit shall be subject returned to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement Purchaser without any withholding or some other date shall be true and correct as of such date)deduction within 3 days; and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.and
(c) The obligation of each upon the return of the Investor and Initial Deposit to the Company Purchaser pursuant to consummate the Closing shall be Clause 3.5.(b), subject to the following additional conditions:
(1) no provision liability of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit party to the transactions contemplated hereby or prohibit the Investor from owning or voting other party in respect of any antecedent breach of the Investor Shares;
(2) the purchase by the Investor terms of this Agreement, none of the Investor Shares shall not (i) require the Investor parties will have any further rights or any of its affiliates to file a prior notice obligations under the Change this Agreement except in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities respect of the Company would be aggregated with the Investor’s securities provisions of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities Clauses 16 (Confidentiality) and 17 (Governing Law) which (assuming, for this purpose only, will continue in full conversion and/or exercise of such securities by the Investor force and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedeffect.
Appears in 1 contract
Sources: Share Purchase Agreement (Iao Kun Group Holding Co LTD)
Conditions. If with respect to the Borrowed Securities, (ai) The obligation the Company has not performed all of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore required to be performed (without giving effect to any qualification as to materiality by it under this Agreement on or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect prior to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor Time or any Date of its affiliates to file a prior notice under Delivery, as the Change in Bank Control Actcase may be, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 5 hereof have not been satisfied on or prior to the Closing Time or any Date of Delivery, as the case may be, or (iii) any of the Branch Purchase Agreement, other than the condition conditions set forth in Section 10.3(ethe applicable Forward Sale Agreement shall not have been satisfied on or prior to the Closing Time or any Date of Delivery, as the case may be, (clauses (i) through (iii), together, the “Conditions”), then the Forward Seller, in its sole discretion, may elect not to borrow and deliver for sale to the Underwriters the Borrowed Securities otherwise deliverable on such date. In addition, in the event the Forward Seller determines that in connection with establishing its commercially reasonable hedge position, in its sole judgment, the Forward Seller (or its affiliate) (x) is unable, after using commercially reasonable efforts, to borrow and deliver for sale the full number of Borrowed Securities to be borrowed and sold pursuant to this Agreement at the Branch Purchase Agreement Closing Time or on such Date of Delivery or (y) would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so with respect to the Company’s acceptance all or any portion of the proceeds such full number of the Acceptable Financing Borrowed Securities, then, in each case and upon notice delivered no later than 9:00 A.M., (as defined in the Branch Purchase AgreementEastern time), at the Closing Time or Date of Delivery, as applicable, the Forward Seller shall have been satisfied only be required to deliver for sale to the Underwriters on the Closing Time or waivedsuch Date of Delivery, as the case may be, the aggregate number of shares of Common Stock that the Forward Seller or its affiliate is able to borrow in connection with establishing its hedge position at or below such cost.
Appears in 1 contract
Conditions. The obligations of the Initial Purchaser to purchase the Notes under this Agreement are subject to the satisfaction of each of the following conditions or waiver thereof by the Initial Purchaser:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company and its Subsidiaries contained in this Agreement and in each of the Documents shall be true and correct as of the date of this Agreement hereof and at the date Closing Date. On or prior to the Closing Date, the Company and each other party to the Documents (other than the Initial Purchaser) shall have performed or complied with all of the Closing (except those representations agreements and warranties that by satisfied all conditions on 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 for such failures respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as satisfy would not havenot, individually or in the aggregate, have a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company to consummate after due inquiry, be pending or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding shall be pending or, to the knowledge of the Company after due inquiry, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would not, individually or in the aggregate, have a Material Adverse Effect, except as disclosed in the Final Offering Circular.
(d) Subsequent to the respective dates as of which data and information is given in the Final Offering Circular, there shall not have been any Material Adverse Change.
(e) The Notes shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL market.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(g) The Initial Purchaser shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (1) the Chief Executive Officer and (2) the principal financial or accounting officer of the Company, on behalf of the Company, to the effect that (a) the representations and warranties set forth in Section 4 hereof and in each of the Documents, are true and correct in all respects, as of the date hereof and at the Closing Date, (b) the Company and each other party to the Documents (other than the Initial Purchaser) have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which failure to satisfy would not, individually or in the aggregate, have a Material Adverse Effect), (c) at the Closing Date or since the date of the most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), other than as disclosed in the Final Offering Circular or contemplated hereby, no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), other than as disclosed in the Final Offering Circular or contemplated hereby, neither the Company nor any Subsidiary of the Company has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company and its Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and its Subsidiaries, taken as a whole, and there has not been any change in the Capital Stock or long-term indebtedness of the Company or any Subsidiary of the Company that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and its Subsidiaries, taken as a whole, and (e) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company and the Guarantors, certifying such matters as the Initial Purchaser may reasonably request.
(iii) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in a form satisfactory to the Initial Purchaser.
(iv) the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Company, and local counsel for the Company and the Guarantors, dated the Closing Date, in form reasonably satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(v) an opinion, dated the Closing Date, of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(h) The Initial Purchaser shall have received (I) from E&Y, independent auditors, with respect to the Company, (A) a customary comfort letter, dated the date of the Final Offering Circular, in form and substance reasonably satisfactory to the Initial Purchaser, with respect to the financial statements and certain financial information contained in the Final Offering Circular, and (B) a customary "bring down" comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that E&Y reaffirms the statements made in its letter furnished pursuant to clause (I)(A) above and (II) from KPMG LLP, independent auditors, with respect to Target, (A) a customary comfort letter, dated the date of the Final Offering Circular, in form and substance reasonably satisfactory to the Initial Purchaser, with respect to the financial statements and certain financial information contained in the Final Offering Circular relating to Target, and (B) a customary "bring down" comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that E&Y reaffirms the statements made in its letter furnished pursuant to clause (II)(A) above.
(i) Each of the Documents shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of each Document.
(j) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any transaction contemplated in the Documents.
(k) The Initial Purchaser shall have received the Final Offering Circular, and the terms of each Document shall conform in all material respects to the description thereof in the Final Offering Circular.
(l) None of the parties to any of the Documents are in breach or default in any material respect under their respective obligations thereunder.
(m) The Collateral Agent and its counsel shall be satisfied that, concurrent with the purchase of the Notes hereunder by the Initial Purchaser, (i) the Lien granted to the Collateral Agent, for the benefit of the Secured Parties in the collateral is of the priority described in the Final Offering Circular; and (ii) no Lien exists on any of the collateral other than the Lien created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement, in each case subject to the condition that all representations and warranties and other statements Permitted Liens.
(n) All information certified to by an officer of the Investor Company in the Perfection Certificate, to be dated as of the Closing shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(co) The obligation of each Company shall have deposited all of the Investor and gross proceeds received from the Company to consummate Offering into the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the InvestorEscrow Account, together with any other person whose securities of sufficient cash to yield the Company would be aggregated with Escrow Redemption Price, plus accrued but unpaid interest to, but excluding, the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which Escrow Redemption Date (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (both as defined in the Branch Purchase AgreementOffering Circular and for purposes of this Section 7(o), assuming an Escrow Redemption Date of January 31, 2005) for all of the Notes and shall have been satisfied or waivedprovided to the Initial Purchaser evidence thereof reasonably satisfactory to the Initial Purchaser. (p) The Company shall have paid all fees payable to the Initial Purchaser under Section 3 hereof.
Appears in 1 contract
Sources: Purchase Agreement (Eschelon Telecom of California, Inc.)
Conditions. (a) The obligation of the Investor Initial Purchaser to consummate purchase the Closing shall be Notes or the Offered Shares, under this Agreement is subject to the condition that all satisfaction of each of the following conditions or waiver thereof by the Initial Purchaser:
(a) All the representations and warranties contained in this Agreement and other statements in each of the Company Documents shall be true and correct as of the date hereof and at the First Closing Date as though then made and, with respect to the Optional Additional Shares, as of this Agreement each Option Closing date as though then made. On or prior to the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, the Company and each other party to the date Documents (other than the Initial Purchaser) shall have performed or complied in all material respects with all of the Closing (except those representations agreements and warranties that by satisfied all conditions on 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 for such failures respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as satisfy would not havenot, individually or in the aggregate, have a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the qualification or exemption from qualification of any of the Notes or the Offered Shares, in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company to consummate the Closing shall after due inquiry, be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct pending or contemplated as of the date of this Agreement and First Closing Date and, with respect to the date of the Optional Additional Shares, each Option Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) The obligation of each No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Investor First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, prevent the consummation of the Offerings or any of the transactions contemplated under the Documents. No Proceeding shall be pending or, to the knowledge of the Company after due inquiry, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes or the Offered Shares, and (B) would not, individually or in the aggregate, have a Material Adverse Effect, except as disclosed in the Final Offering Circulars.
(d) Subsequent to the respective dates as of which data and information is given in the Time of Sale Circulars and the Company Final Offering Circulars, there shall not have been any Material Adverse Change.
(e) The Notes and the Offered Shares shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to consummate trading in the Closing PORTAL market.
(f) The Underlying Securities shall be subject have been approved for listing on the American Stock Exchange, to the following additional conditionsextent required by such exchange, subject only to notice of issuance.
(g) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or the Goldking Entities or any securities of the Company or the Goldking Entities (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or the Goldking Entities or any securities of the Company or the Goldking Entities by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes or the Offered Shares than that on which the Notes or Offered Shares were marketed.
(h) The Initial Purchaser shall have received on the applicable Closing Date:
(i) certificates dated the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, signed by (1) no provision of any applicable law or regulation the Chief Executive Officer and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor principal financial or accounting officer of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActCompany, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities on behalf of the Company would be aggregated with Company, to the Investor’s securities effect that (a) the representations and warranties set forth in Section 5 hereof and in each of the Documents, are true and correct in all respects, as of the date hereof and at the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, (b) the Company for purposes and each other party to the Documents (other than the Initial Purchaser) have performed or complied with all of any bank regulation the agreements and satisfied all conditions on their respective parts to be performed, complied with or law, satisfied pursuant to collectively the Documents (other than conditions to be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities satisfied by the Investor and such other personsparties, which failure to satisfy would not, individually or in the aggregate, have a Material Adverse Effect), (c) would represent more than 9.9% of any class of voting securities of at First Closing Date and, with respect to the Company outstanding on Optional Additional Shares, each Option Closing Date or since the date of the most recent financial statements in the Final Offering Circulars (exclusive of any amendment or supplement thereto after the date hereof), other than as disclosed in the Final Offering Circulars or contemplated hereby, no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Final Offering Circulars (exclusive of any amendment or supplement thereto after the date hereof), other than as disclosed in the Final Offering Circulars or contemplated hereby, neither the Company, the Goldking Entities nor the Guarantors have incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company and the Guarantors, taken as a whole, or the Goldking Entities or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations of the Company and the Guarantors, taken as a whole, or the Goldking Entities and there has not been any change in the Capital Stock or long-term indebtedness of the Company or the Guarantors of the Company or the Goldking Entities that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and the Guarantors, taken as a whole, or the Goldking Entities and (e) the sale of the Notes or the Offered Shares has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, executed by the Secretary of the Company and the Guarantors, certifying such matters as the Initial Purchaser may reasonably request.
(after giving iii) a certificate of solvency, dated the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, executed by the principal financial or accounting officer of the Company substantially in a form reasonably satisfactory to the Initial Purchaser.
(iv) the opinion, dated the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, of Eaton & Van Winkle LLP, counsel to the Company and the Guaranto▇▇ ▇▇bst▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ form attached hereto as Exhibit D.
(v) the opinion, dated the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, of Jackson Walker L.L.P., counsel to the Company and the Guarantor▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ the form attached hereto as Exhibit E.
(vi) the opinion, dated the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, of Thompson & Knight LLP, counsel to the Initial Purchaser, in for▇ ▇▇▇▇▇▇actory to the Initial Purchaser.
(vii) the opinion, dated the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, of Louisiana counsel to the Company and the Guarantors, substantially in the form attached hereto as Exhibit F.
(viii) an opinion, dated the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, of White & Case LLP, counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(ix) The "lock-up" agreements, each substantially in the form of Exhibit G-1 hereto, from the persons identified on Exhibit G-2 relating to sales and certain other dispositions of shares of Common Stock or certain other securities shall be in full force and effect on the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date.
(i) The Initial Purchaser shall have received from each Malone & Bailey P.C. and Hein and Associates LLP, independent public ▇▇▇▇▇▇tan▇▇ ▇▇▇er the sta▇▇▇▇ds established by the American Institute of Certified Public Accountants, with respect to the Company and the Goldking entities, respectively, (A) customary comfort letters, dated the date of this Agreement, in form and substance reasonably satisfactory to the Initial Purchaser, with respect to the financial statements and certain financial information contained in the Preliminary Offering Circulars, (B) customary comfort letters, dated the date of this Agreement, in form and substance reasonably satisfactory to the Initial Purchaser, with respect to the financial statements and certain financial information contained in the Final Offering Circulars and (C) customary "bring down" comfort letters, dated the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that each of Malone & Bailey P.C. and Hein and Associates LLP reaffirms the statem▇▇▇▇ ▇ade ▇▇ ▇▇s respecti▇▇ ▇etters furnished pursuant to clause (A) and (B).
(j) On the date hereof and also at the Closing Date, the Initial Purchaser shall have received from the principal financial or accounting officer of the Company a certificate in form and substance reasonably satisfactory to the Initial Purchaser as to the accuracy of certain numbers contained or incorporated by reference in the Time of Sale Circulars and the Offering Circulars, which numbers shall be set forth in a schedule attached to such certificate.
(k) Each of the Documents shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of each Document.
(l) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any transaction contemplated in the Documents.
(m) The Initial Purchaser shall have received the Final Offering Circulars, and the terms of each Document shall conform in all material respects to the description thereof in the Time of Sale Circulars.
(n) Prior to the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, each of DeGloyer and MacNaughton, the Company's independent petroleum engineer and Cawley, ▇▇▇▇▇▇▇▇▇ & Associates, Goldking's independent petroleum engi▇▇▇▇, sh▇▇▇ ▇▇▇▇ furnished to the Initial Purchaser a letter or letters, dated the respective date of delivery thereof, in form and substance satisfactory to the Initial Purchaser.
(o) None of the parties to any of the Documents are in breach or default in any material respect under their respective obligations thereunder.
(p) The Collateral Agent shall have received on the applicable Closing Date:
(i) appropriately completed copies of Uniform Commercial Code UCC-1 financing statements naming each of the Company and the Guarantors as the debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the Lien of the Collateral Agent pursuant to the Security Agreement;
(ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any Security Agreement previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, listing all effective financing statements which name the Company (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Agreement, other than such financing statements that evidence Permitted Liens);
(iv) fully executed counterparts of a Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing (the "Deed of Trust"), in form and substance reasonably satisfactory to Collateral Agent, which Deed of Trust shall cover the real and personal property relating to the Obligors' facilities in the locations to be listed on Schedule I to the Indenture; and
(v) such other approvals or documents as the Collateral Agent or the Initial Purchaser may reasonably request in form and substance reasonably satisfactory to the Collateral Agent or Initial Purchaser, as the case may be.
(q) The Collateral Agent and its counsel shall be satisfied that, concurrent with the purchase of the Investor Notes or the Offered Shares contemplated hereby)hereunder by the Initial Purchaser, (A) the Lien granted to the Collateral Agent, for the benefit of the Secured Parties in the collateral described above is of the priority described in the Final Offering Circulars; andand (B) no Lien exists on any of the collateral described above other than the Lien created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement, in each case subject to the Permitted Liens.
(3r) the conditions set forth in Section 10 of the Branch Purchase AgreementAll steps, other than the condition set forth in Section 10.3(e) payment of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement)consideration, shall have been satisfied or waivedcompleted in connection with the Acquisition. In the case of the Preferred Stock, all steps, other than the release of (x) funds by the Initial Purchaser and (y) shares of Preferred Stock to the Initial Purchaser shall have been consummated in connection with the sale and purchase of the Preferred Stock. In the case of the Notes, the offering of Preferred Stock shall have been consummated.
Appears in 1 contract
Sources: Purchase Agreement (Dune Energy Inc)
Conditions. (a) The obligation of the Investor to consummate the Closing shall You will complete all necessary further documentation and execution same as may be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated reasonably required by the Branch Purchase AgreementCompany.
(b) The obligation of Company and you agree that the Company to consummate the Closing shall be subject to the condition that all representations terms and warranties and other statements of the Investor shall be true and correct as of the date facts of this Agreement agreement and the date of the Closing (except those representations and warranties that its contents may be disclosed as required 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedlaw.
(c) The obligation You acknowledge that during the term of each of the Investor and your employment you had access to information which is confidential and/or proprietary to the Company and its clients, including but not limited to consummate the Closing shall be subject information of a business, financial or technical nature and all other information relating to the following additional conditions:
(1) no provision of any applicable law or regulation business and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities affairs of the Company would and its clients which is not in the public domain through no fault on your part. You undertake and agree that all such information shall be aggregated with and remain at all times the Investor’s securities exclusive property of the Company Company. You further undertake and agree that you will at all times hereafter maintain such information in confidence and shall not disclose such information to anyone else nor shall you use it for purposes your own benefit or for the benefit of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities others except as expressly directed in writing by the Investor and such other personsCompany.
(d) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect You shall deliver up to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth Company, Company property in Section 10 of the Branch Purchase Agreementyour possession or under your control including, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect without limitation, security passes to the Company’s acceptance premises and all Company documents, plans, financial data, laptop, computer discs, files, memoranda, correspondence and all documentation prepared or obtained by you in the course of your employment with the Company relating to its affairs. You undertake not to retain copies of any Company documentation in your possession or under your control, without the prior written consent of the proceeds Company.
(e) The Parties will not at any time hereafter for a period of two (2) years, in any fashion, form, or manner, criticize, denigrate or otherwise disparage or cause disparagement of any other Party, and will not say or do anything that damages or impairs in any way the goodwill and/or reputation of the Acceptable Financing Parties; provided that you may respond accurately and fully to any request for information if required by legal process or in connection with a government investigation. In addition, nothing in this provision or this Agreement is intended to prohibit or restrain you in any manner from making disclosures protected under the whistleblower provisions of federal, provincial or state law or regulation or other applicable law or regulation.
(f) You agree that for a period of one (1) year after the date of your signing the Form of Acceptance, without the written consent of the Company, you will not contact, solicit or otherwise communicate with any employee of the Company unless requested by Company to do so.
(g) You agree to cooperate fully with the Company in connection with its actual or contemplated defense, prosecution, or investigation of any claims or demands by or against third parties, or other matters arising from events, acts, or failures to act that occurred during the period of your employment by the Company. Such cooperation includes, without limitation, making yourself available to the Company upon reasonable notice, without subpoena, to provide complete, truthful and accurate information in witness interviews, depositions, and trial testimony. The Company will reimburse you for reasonable out-of-pocket expenses you incur in connection with any such cooperation (excluding foregone wages, salary, or other compensation) and will make reasonable efforts to accommodate your scheduling needs.
(h) You agree that the resolution of this matter is dependent on you executing the attached Form of Acceptance. This represents the entirety of our agreement with you in connection with your termination of employment and supersedes all prior agreements or understanding including emails or otherwise. If any portion of this agreement is unenforceable then all other aspects of the agreement shall remain in force to the fullest extent as defined allowed by law. This may be executed in counterparts. Please read this letter and the attached Form of Acceptance carefully and ensure that you fully understand the contents of both. You may wish to consider consulting with a legal advisor prior to signing the Form of Acceptance. If you are satisfied that you understand and agree with the terms set out in this letter and in the Branch Purchase Agreement), shall have been satisfied or waived.Form of Acceptance please sign the Form of Acceptance where indicated and return it to me. Your signature on the Form of Acceptance should be witnessed where indicated. Yours sincerely _/s/ ▇▇▇▇▇ ▇▇▇▇▇▇_________ ▇▇▇▇▇ ▇▇▇▇▇▇
Appears in 1 contract
Sources: Separation Agreement (EBET, Inc.)
Conditions. The obligations of the Underwriters to purchase the Shares under this Agreement are subject to the satisfaction of each of the following conditions:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company contained in this Agreement shall be true and correct as of the date of this Agreement hereof and the date of at the Closing (except those representations and warranties that by their terms speak specifically as of Date. On or prior to the date of this Agreement or some other date shall be true and correct as of such date)Closing Date, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company and each other party hereto (other than the Underwriters) shall have performed in all material respects or complied with all of its obligations hereunder theretofore the agreements and satisfied all conditions on their respective parts to be performed (without giving effect to any qualification as to materiality performed, complied with or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementsatisfied hereunder.
(b) The obligation Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b) under the Act; all filings required by Rule 433 under the Act shall have been made, and no such filings shall have been made without the consent of the Underwriters (which consent shall not have been unreasonably withheld); and no stop order or notice suspending the effectiveness of or preventing the use of the Registration Statement or preventing or suspending the use of the Final Prospectus of any Issuer Free Writing Prospectus shall have been issued, and no proceedings or examination for such purpose shall have been instituted or threatened. Any request of the Commission for inclusion of additional information in the Registration Statement shall have been complied with. No other injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated hereunder, including the issuance of any stop order suspending the qualification or exemption from qualification of any of the Shares in any jurisdiction, and no proceeding for that purpose shall have been commenced or, to the knowledge of the Company to consummate after due inquiry, be pending or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated hereunder. No proceeding shall be pending or, to the knowledge of the Company after due inquiry, threatened other than proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Shares, and (B) would not, individually or in the aggregate, have a Material Adverse Effect, except as disclosed in the Registration Statement and the Final Prospectus.
(d) Except as may be disclosed in the Registration Statement, subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof after the date hereof), the Final Prospectus (exclusive of any supplement thereto), or any Issuer Free Writing Prospectus (exclusive of any supplement thereto), there shall not have been any material adverse change having a Material Adverse Effect.
(e) The Underwriters shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, on behalf of the Company, to the effect that (A) the representations and warranties set forth in Section 4 hereof, are true and correct, as of the date hereof and at the Closing Date, (B) the Company has performed or complied with all of the agreements and satisfied all conditions on its part to be performed, complied with or satisfied hereunder, (C) at the Closing Date or since the date of the most recent financial statements in or incorporated by reference into the Registration Statement and the Final Prospectus (exclusive of any amendment or supplement thereto after the date hereof), other than as disclosed in or incorporated by reference into the Registration Statement and the Final Prospectus or contemplated hereby, no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (D) since the date of the most recent financial statements in or incorporated by reference into the Registration Statement and the Final Prospectus (exclusive of any amendment or supplement thereto after the Applicable Time), other than as disclosed in or incorporated by reference into the Registration Statement and the Final Prospectus or contemplated hereby, the Company has not incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are materially adverse to the Company, taken as a whole, or entered into any transactions not in the ordinary course of business that are materially adverse to the business, financial condition or results of operations of the Company, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company other than pursuant to the terms of outstanding debt and equity securities that is materially adverse to the business, financial condition or results of operations of the Company, taken as a whole, (E) the Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto, no stop order or notice suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Final Prospectus or any Issuer Free Writing Prospectus has been issued, and no proceedings or examinations for that purpose have been instituted or, to the knowledge of such officers, threatened; and (f) the sale of the Shares has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company, certifying such matters as the Underwriters may reasonably request.
(iii) an opinion of Winthrop & Weinstine, P.A., outside counsel for the Company, dated the Closing Date, to the effect that:
(A) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Final Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect on the Company, taken as a whole;
(B) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in or incorporated by reference into the Final Prospectus;
(C) the shares of Common Stock outstanding prior to the issuance of the Shares to be sold by the Company in the Offering have been duly authorized and are validly issued, fully paid and non-assessable;
(D) the Shares to be sold by the Company in the Offering have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and, except as described in the Registration Statement, the issuance of such Shares will not be subject to any preemptive or similar rights;
(E) this Agreement has been duly authorized, executed and delivered by the condition Company;
(F) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of applicable law or the certificate of incorporation or bylaws of the Company or, to such counsel’s knowledge, any agreement or other instrument binding upon the Company that is material to the Company, taken as a whole, or, to such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares;
(G) the statements relating to legal matters, documents or proceedings included in (a) the Final Prospectus under the captions “Description of Capital Stock,” “Description of Warrants” and “Description of Units” and (b) the Registration Statement in Item 15, in each case, fairly summarize in all representations material respects such matters, documents or proceedings;
(H) after due inquiry, to its knowledge, such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company is a party or to which any of the properties of the Company is subject that are required to be described in the Registration Statement or the Final Prospectus and warranties are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(I) the Company is not, and after giving effect to the Offering and sale of the Shares and the application of the proceeds thereof as described in the Final Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act; and
(J) (a) in the opinion of such counsel (i) each document filed pursuant to the Exchange Act and incorporated by reference in the Registration Statement and the Final Prospectus (except for the financial statements and financial schedules and other statements financial and statistical data included therein, as to which such counsel need not express any opinion) appeared on its face to be appropriately responsive as of its filing date in all material respects to the requirements of the Investor shall Exchange Act and the applicable rules and regulations of the Commission thereunder and (ii) the Registration Statement and the Final Prospectus (except for the financial statements and financial schedules and other financial and statistical data included therein, as to which such counsel need not express any opinion) appear on their face to be true appropriately responsive in all material respects to the requirements of the Securities Act and correct the applicable rules and regulations of the Commission thereunder, and (b) nothing has come to the attention of such counsel that causes such counsel to believe that (i) the Registration Statement (except for the financial statements and financial schedules and other financial and statistical data included therein, as to which such counsel need not express any belief), at the time the Registration Statement became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (ii) the most recent Preliminary Prospectus (except for the financial statements and financial schedules and other financial and statistical data included therein, as to which such counsel need not express any belief), as of the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Final Prospectus (except for the financial statements and financial schedules and other financial and statistical data included therein, as to which such counsel need not express any belief), as of its date or as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iv) an opinion of (x) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and (y) Stoel Rives LLP, intellectual property counsel for the Company, dated the Closing Date, to the effect that:
(A) the statements included or incorporated by reference in the Registration Statement, the Base Prospectus and the Final Prospectus under the captions “Summary — Our Business;” “Risk Factors — Risks Relating to Our Business - Our ability to compete depends on our ability to protect our intellectual property, which may not be adequately protected;” “Risk Factors — Risks Relating to Our Business -We are at risk of intellectual property infringement claims;” and “Risk Factors — Risks Relating to Our Business - We plan on purchasing intellectual property for the next versions of our FPOA, and we may not be able to obtain the intellectual property we need under terms and conditions that are acceptable to us;” relating to patents, patent applications, copyrights, trademarks, trademark applications, trade secrets, non-disclosure agreements, work-for-hire agreements, or other proprietary rights (collectively, the “Intellectual Property Statements”), insofar as such Intellectual Property Statements constitute summaries of documents or legal proceedings or refer to matters of law or legal conclusions, are accurate and complete in all material respects and present fairly the information purported to be shown;
(B) nothing has come to its attention that causes it to believe that (a) the Intellectual Property Statements in the Registration Statement, at the Effective Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (b) the Intellectual Property Statements in the most recent Preliminary Prospectus, as of the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (c) the Intellectual Property Statements in the Final Prospectus, as of the date of this Agreement and the Final Prospectus or the date hereof, included or include an untrue statement of a material fact or omitted or omit to state a material fact necessary in order to make the statements therein, in the light of the Closing circumstances under which they were made, not misleading;
(except those representations and warranties that by their terms speak specifically as C) to its knowledge, (a) there are no legal or governmental proceedings pending relating to patent rights, trade secrets, trademarks, service marks, copyrights or other proprietary information or materials of the date Company, and (b) no such proceedings are threatened or contemplated by governmental authorities or others;
(D) it does not know of this Agreement any contracts or some other date shall be true and correct as documents relating to the patents, copyrights, trade secrets, trademarks, service marks or other proprietary information or materials of such date); and the condition Company that the Investor shall have performed all are of its obligations hereunder theretofore a character required to be performed.described in the Registration Statement, the Base Prospectus or the Final Prospectus or to be filed as an exhibit to the Registration Statement or any Incorporated Document which have not been so described or filed as required;
(cE) The obligation of each to its knowledge, (a) the Company, and its customers using products of the Investor Company in their intended manner, is not and would not be infringing or otherwise violating, and, upon the Company to consummate commercialization and sale of the Closing shall be subject to products or services described in the following additional conditions:
(1) no provision Registration Statement, the Base Prospectus or the Final Prospectus as under development, neither of them would infringe or otherwise violate, any patents, trade secrets, trademarks, service marks, copyrights or other proprietary information or materials of others, and it is unaware of any applicable law claims, or regulation any facts which would form a reasonable basis for a claim, of any such infringement, and (b) there are no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting infringements by others of any of the Investor Shares;
(2) the purchase by the Investor patents, trade secrets, trademarks, service marks, copyrights or other proprietary information or materials of the Investor Shares shall not (i) require the Investor Company, and it is unaware of any claims, or any facts which would form a reasonable basis for a claim, of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.any
Appears in 1 contract
Conditions. (a) The obligation of the Investor to consummate purchase and acquire the Closing Shares hereunder shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as on each of the date of this Agreement and the date of the Closing (except those 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); and Closing, the condition that the Investor Company shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor , and the Company to consummate the Closing shall be subject to the following additional conditions:
(1a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing, no provision stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, and the Investor shall have received the Prospectus in accordance with the federal securities laws.
(b) Prior to the Closing Date, there shall not have occurred any change, or any development involving a prospective change, which would constitute a Material Adverse Effect, and that makes it impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(c) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Shares or materially and adversely affect or reasonably be believed to materially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any applicable law other nature by any federal or regulation state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Shares or materially and no judgmentadversely affect or reasonably be believed to materially and adversely affect the business or operations of the Company.
(d) The Investor shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, injunctionLLP, order or decree counsel to the Company, such counsel’s written opinion and written statement, addressed to the Investor and dated the Closing Date, in form and substance as set forth in Exhibit B.
(e) The Shares shall prohibit have been authorized for quotation on the Nasdaq Global Market, Inc.
(f) The JV Agreement and the agreements contemplated thereby, and the Services Agreement shall have been executed and delivered by the parties thereto.
(g) The actions taken by the Company’s board of directors to pre-approve the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company this Agreement for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities Section 203 of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to DGCL and the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Shareholder Rights Agreement shall not have been satisfied amended or waivedmodified in any respect and remain in full force and effect.
Appears in 1 contract
Conditions. (a) The obligation obligations of the Investor Company to consummate sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing shall be Date are subject to the condition that all representations the Prospectus, as amended or supplemented, in relation to the Shares, shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period described for such filing by the rules and warranties regulations under the Securities Act, and other statements as of the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall be in effect or shall be pending or, to the knowledge of the Company, threatened by the Commission; and no notice objecting to its use pursuant to Rule 401(g)(2) shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall have been instituted or threatened. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 3(a)(62) under the Exchange Act; and
(ii) there shall be true not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and correct its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the date of Shares on the Closing (except those representations terms 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; manner contemplated in the condition that the Company shall have performed in all material respects all Time of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase AgreementSale Prospectus.
(b) The obligation Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be contained in this Agreement are true and correct as of the date of this Agreement Closing Date and that the date Company has complied with all of the Closing (except those representations agreements and warranties that by their terms speak specifically as satisfied all of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of conditions on its obligations hereunder theretofore part to be performedperformed or satisfied hereunder on or before the Closing Date. Any officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The obligation Underwriters shall have received on the Closing Date an opinion, including an opinion with regard to the Company’s qualification and taxation as a REIT, and a negative assurance letter of Cravath, Swaine & ▇▇▇▇▇ LLP, outside counsel for the Company, each dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(d) The Underwriters shall have received on the Closing Date an opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, tax counsel for the Company, with regard to the Company’s qualification and taxation as a REIT, dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of the General Counsel or Associate General Counsel to the Company, dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion and a negative assurance letter of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, each dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(g) The Underwriters shall have received, on each of the Investor date hereof and the Company to consummate Closing Date, a letter dated the date hereof or the Closing shall be subject Date, as the case may be, in form and substance satisfactory to the following additional conditions:
(1) no provision of any applicable law or regulation Underwriters, from PricewaterhouseCoopers LLP, independent public accountants, containing statements and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any information of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates type ordinarily included in accountants’ “comfort letters” to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement underwriters with respect to the Company’s acceptance financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than three business days prior to the Closing Date.
(h) The Underwriters shall have received, on each of the proceeds date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Vice President and Chief Financial Officer of the Acceptable Financing (as defined Company, substantially in the Branch Purchase Agreement), form of Exhibit B hereto.
(i) The Shares shall have been satisfied approved for listing on the New York Stock Exchange (“NYSE”), subject only to official notice of issuance.
(j) On or waivedprior to the Closing Date, the Company shall have furnished to the Underwriters such further certificates and documents as the Underwriters may reasonably request.
(k) The representations and warranties of the Company contained herein shall be true and correct on and as of the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Crown Castle International Corp)
Conditions. The obligations of the Initial Purchaser to purchase the Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company and the Guarantors contained in this Agreement and in each of the Documents to which it is a party shall be true and correct in all material respects (except that any representation or warranty that already contains a materiality exception therein, in each such case shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically written) as of the date of this Agreement or some other date shall be true hereof and correct as of such date), except for such failures to be so true and correct at the Closing Date (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated Acquisition and Related Transaction). On or prior to the Closing Date, the Company and each other party to the Documents (other than the Initial Purchaser) shall have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the Branch Purchase Agreementfailure to so satisfy would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect).
(b) The obligation No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company, after reasonable internal inquiry, be pending as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding other than as set forth in the Pricing Disclosure Package shall be pending or, to the knowledge of the Company after reasonable internal inquiry, threatened other than Proceedings that (i) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (ii) would not, individually or in the aggregate, have a Material Adverse Effect.
(d) Subsequent to consummate the respective dates as of which data and information is given in the Pricing Disclosure Package there shall not have been any Material Adverse Change.
(e) The Notes shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in The PORTAL Market.
(f) On or after the date hereof and on or prior to the Closing Date, (i) there shall be subject not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any negative change, nor shall any notice have been given of any potential or intended negative change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the condition Notes than that all on which the Notes were marketed.
(g) The Initial Purchaser shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, on behalf of the Company, to the effect that (A) the representations and warranties set forth in Section 4 hereof and other statements in each of the Investor shall be Documents that are not qualified by materiality were true and correct in all material respects as of the Applicable Time and are true and correct in all material respects as of the Closing Date, with the same force and effect as though expressly made at and as of the Closing Date, (B) the representations and warranties set forth in Section 4 hereof and in each of the Documents that are qualified by materiality were true and correct as of the date of this Agreement Applicable Time and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be are true and correct as of the Closing Date, with the same force and effect as though expressly made at and as of the Closing Date, (C) the Company has performed and complied in all material respects with all agreements and satisfied in all material respects all conditions on its part to be performed or satisfied by the Company at or prior to the Closing Date, (D) at the Closing Date, since the Applicable Time or since the date of the most recent financial statements in the Pricing Disclosure Package and except as described in the Pricing Disclosure Package, (exclusive of any amendment or supplement thereto after the date hereof), to the knowledge of such dateofficers, no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (E) since the date of the most recent financial statements in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof); , other than as described in the Pricing Disclosure Package or contemplated hereby, neither the Company nor any Subsidiary of the Company has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company and the Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company or any Subsidiary of the Company that is material to the Investor shall have performed all business, condition (financial or otherwise) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, and (F) the sale of the Notes has not been enjoined (temporarily or permanently);
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company and each Guarantor, certifying such matters as the Initial Purchaser may reasonably request;
(iii) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in the form previously approved by the Initial Purchaser or its obligations hereunder theretofore counsel;
(iv) the opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to be performedthe Company, dated the Closing Date, in the form of Exhibit D attached hereto; and
(v) an opinion, dated the Closing Date, of Proskauer Rose LLP, counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(ch) The obligation Initial Purchaser shall have received from each of Ernst & Young LLP, independent auditors, with respect to the Company, BDO ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, independent auditors, with respect to Hay Hall Holdings Limited and Hay Hall Group Limited, and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent auditors, with respect to ▇▇ ▇▇▇▇'▇ Corporation, (A) a comfort letter, dated as of April 3, 2007, in form and substance reasonably satisfactory to the Initial Purchaser and their counsel, with respect to the financial statements and certain financial information contained in the Pricing Disclosure Package and the Final Offering Circular, and (B) a comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser and their counsel, to the effect that Ernst & Young LLP, BDO ▇▇▇▇ ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, respectively, each reaffirms the statements made in its letter furnished pursuant to clause (A).
(i) Each of the Documents shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of each Document.
(j) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any transaction contemplated in the Documents.
(k) The terms of each Document shall conform in all material respects to the description thereof in the Pricing Disclosure Package and the Final Offering Circular.
(l) [INTENTIONALLY DELETED]
(m) [INTENTIONALLY DELETED]
(n) The Company shall have received an executed waiver and consent from ▇▇▇▇▇ Fargo Foothill, Inc., in accordance with the terms of the Investor and Credit Agreement, authorizing the Company to consummate the Closing Acquisition without violating any provision of the Credit Agreement. TB's Wood's shall be have received an executed waiver and consent from and creditors of ▇▇ ▇▇▇▇'▇ with respect to ▇▇ ▇▇▇▇'▇ existing senior secured revolving credit facility assumed by the Company in connection with the Acquisition, in accordance with the terms of such credit facility, authorizing ▇▇ ▇▇▇▇'▇ to become subject to the following additional conditions:terms of the Indenture and Senior Unsecured Notes Indentures (including becoming a Guarantor and providing security under the Indenture and becoming a guarantor under the terms of the Senior Unsecured Notes Indenture) without violating any provision of such credit facility.
(1o) no provision of any applicable law or regulation and no judgmentImmediately prior to the Closing Date, injunctionForest Acquisition Corporation shall be a direct, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any wholly-owned subsidiary of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares Company. Forest Acquisition Corporation shall not (i) require the Investor or any of its affiliates to file remain a prior notice under the Change in Bank Control Actdirect, or otherwise seek prior approval or nonwholly-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities owned subsidiary of the Company would be aggregated with until the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedBack-end Merger is completed.
Appears in 1 contract
Sources: Purchase Agreement (TB Wood's INC)
Conditions. 7.1 Conditions to Each Party's Obligations. The respective obligations of each party to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions any of which may be waived in whole, or to the extent permitted hereby, in part:
(a) The obligation This Agreement and the Merger shall have been duly approved and adopted at the Special Meeting by (i) the holders of a majority of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct Shares outstanding as of the record date and (ii) the holders of this Agreement and the date a majority of the Closing (except those representations Shares outstanding which are present in person or represented by proxy at the Special Meeting and warranties that entitled to vote thereat, excluding Shares owned by their terms speak specifically as of the date of this Agreement Conseco and its direct or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementindirect Subsidiaries.
(b) The obligation There shall not be in effect any statute, rule, regulation, executive order, decree, ruling or injunction or other order of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements a court or governmental or regulatory agency of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition competent jurisdiction directing that the Investor transactions contemplated herein not be consummated; provided, however, that prior to invoking this condition each party shall use all reasonable efforts to have performed all of its obligations hereunder theretofore to be performedany such decree, ruling, injunction or order vacated.
(c) The obligation of each All governmental consents, orders and approvals legally required for the consummation of the Investor Merger and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby shall have been obtained and be in effect at the Effective Time, except where the failure to obtain any such consent, order or prohibit approval would not, individually or in the Investor from owning aggregate, reasonably be expected to have a material adverse effect on the validity or voting any enforceability of this Agreement, on the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities ability of the Company would be aggregated with to perform its obligations under this Agreement, or on the Investor’s securities Business or Condition of the Company for purposes of any bank regulation or lawand its Subsidiaries, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (taken as defined in the Branch Purchase Agreement), shall have been satisfied or waiveda whole.
Appears in 1 contract
Sources: Merger Agreement (Conseco Inc Et Al)
Conditions. (aI) The obligation obligations of the Investor Company to consummate sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing shall be Date are subject to the condition that all representations the Prospectus, as amended or supplemented, in relation to the Shares, shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period described for such filing by the rules and warranties regulations under the Securities Act, and other statements as of the Closing Date and each Option Closing Date, no stop order suspending the effectiveness of the Registration Statement shall be in effect or shall be pending or, to the knowledge of the Company, threatened by the Commission; and no notice objecting to its use pursuant to Rule 401(g)(2) shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall have been instituted or threatened. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 3(a)(62) under the Exchange Act; and
(ii) there shall be true not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and correct its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement and the date of the Closing (except those 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)that, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregateUnderwriters’ judgment, a Material Adverse Effect; is material and adverse and that makes it, in the condition that Underwriters’ judgment, impracticable to market the Company shall have performed Shares on the terms and in all material respects all the manner contemplated in the Time of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase AgreementSale Prospectus.
(b) The obligation Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(I)(a)(i) above and to the effect that the representations and warranties of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be contained in this Agreement are true and correct as of the date of this Agreement Closing Date and that the date Company has complied with all of the Closing (except those representations agreements and warranties that by their terms speak specifically as satisfied all of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of conditions on its obligations hereunder theretofore part to be performedperformed or satisfied hereunder on or before the Closing Date. Any officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The obligation Underwriters shall have received on the Closing Date an opinion, including an opinion with regard to the Company’s qualification and taxation as a REIT, and a negative assurance letter of Cravath, Swaine & ▇▇▇▇▇ LLP, outside counsel for the Company, each dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(d) The Underwriters shall have received on the Closing Date an opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, tax counsel for the Company, with regard to the Company’s qualification and taxation as a REIT, dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of the General Counsel or Associate General Counsel to the Company, dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion and a negative assurance letter of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, each dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(g) The Underwriters shall have received, on each of the Investor date hereof and the Company to consummate Closing Date, a letter dated the date hereof or the Closing shall be subject Date, as the case may be, in form and substance satisfactory to the following additional conditions:
(1) no provision of any applicable law or regulation Underwriters, from PricewaterhouseCoopers LLP, independent public accountants, containing statements and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any information of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates type ordinarily included in accountants’ “comfort letters” to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement underwriters with respect to the Company’s acceptance financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than three business days prior to the Closing Date.
(h) The Underwriters shall have received, on each of the proceeds date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants to Target, containing statements and information of the Acceptable Financing (type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the consolidated financial statements of Target as defined of and for the year ended December 31, 2016 contained in the Branch Purchase Agreement)Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than three business days prior to the Closing Date.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company listed in Exhibit B hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Vice President and Chief Financial Officer of the Company, substantially in the form of Exhibit C hereto.
(k) The Shares shall have been satisfied approved for listing on the New York Stock Exchange (“NYSE”), subject only to official notice of issuance.
(l) On or waivedprior to the Closing Date, the Company shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
(m) The representations and warranties of the Company contained herein shall be true and correct on and as of the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Crown Castle International Corp)
Conditions. (a) Section 7.1 Conditions to Each Party's Obligation to Effect the Merger. The obligation respective obligations of each party to effect the Investor to consummate the Closing Merger shall be subject to the condition fulfillment at or prior to the Closing Date of the following conditions:
(a) The Company Requisite Vote shall have been obtained.
(b) The waiting period applicable to the consummation of the Merger shall have expired or been terminated under the HSR Act.
(c) None of the parties hereto shall be subject to any decree, order or injunction of a court of competent jurisdiction, U.S. or foreign, which prohibits the consummation of the Merger; and no statute, rule or regulation shall have been enacted by any governmental authority of competent jurisdiction which prohibits or makes unlawful the consummation of the Merger.
(d) The Registration Statement shall have become effective and no stop order with respect thereto shall be in effect and no proceedings for that purpose shall have been commenced or threatened by the SEC.
(e) The Parent Common Shares to be issued pursuant to the Merger shall have been authorized for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 7.2 Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger shall be subject to the fulfillment or waiver by the Company at or prior to the Closing Date of the following conditions:
(a) (i) Parent shall have performed in all material respects its covenants and agreements contained in this Agreement required to be performed on or prior to the Closing Date and (ii) the representations and warranties of Parent and Sub contained in this Agreement and in any document delivered in connection herewith (A) to the extent qualified by Parent Material Adverse Effect or any other statements of the Company materiality qualification shall be true and correct and (B) to the extent not qualified by Parent Material Adverse Effect or any other materiality qualification shall be true and correct in all material respects, in each case as of the date of this Agreement and the date as of the Closing Date (except those for representations and warranties that by their terms speak specifically made as of the date of this Agreement or some other date shall a specified date, which need be true and correct only as of the specified date) ; provided that the condition set forth in clause (ii) shall be deemed to have been satisfied unless such date), except for such failures to be so true breaches of representations and correct warranties (without giving effect regard to any qualification as to materiality or Parent Material Adverse Effect contained therein) as would not haveor any other materiality qualification or threshold), individually or in the aggregate, would reasonably be expected to have a Parent Material Adverse Effect; and the condition Company shall have received a certificate of Parent, executed on its behalf by its President or a Senior Vice President of Parent, dated the Closing Date, certifying to such effect.
(b) The Company shall have received the opinion of Crowe & ▇▇▇▇evy, ▇▇▇▇▇el to the Company, in form and substance reasonably satisfactory to the Company, on the basis of certain facts, representations and assumptions set forth in such opinion, dated the Closing Date, a copy of which shall be furnished to Parent, to the effect that (i) the Merger will qualify for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code and Parent, Sub and the Company will be "parties" to a reorganization within the meaning of Section 368(b) of the Code, (ii) no gain or loss will be recognized by the Company in connection with the Merger and (iii) a shareholder of the Company that is a United States Person (within the meaning of Section 7701(a)(30) of the Code) and that receives both (A) Parent Common Shares and (B) cash in the Merger in exchange for Company Shares will recognize realized gain only to the extent of the lesser of such realized gain or the cash received in the exchange (but will not recognize any loss). In rendering such opinion, such counsel shall be entitled to receive and rely upon representations of officers of the Company, Sub and Parent as to such matters as such counsel may reasonably request.
Section 7.3 Conditions to Obligation of Parent to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the fulfillment or waiver by Parent at or prior to the Closing Date of the following conditions:
(i) The Company shall have performed in all material respects all of its obligations hereunder theretofore covenants and agreements contained in this Agreement required to be performed on or prior to the Closing Date and (without giving effect ii) the representations and warranties of the Company contained in this Agreement and in any document delivered in connection herewith (A) to any qualification as to materiality or the extent qualified by Company Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and any other statements of the Investor materiality qualification shall be true and correct and (B) to the extent not qualified by Company Material Adverse Effect or any other materiality qualification shall be true and correct in all material respects, in each case as of the date of this Agreement and the date as of the Closing Date (except those for representations and warranties that by their terms speak specifically made as of the date of this Agreement or some other date shall a specified date, which need be true and correct only as of such the specified date); and the condition provided that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in clause (ii) shall be deemed to have been satisfied unless such breaches of representations and warranties (without regard to Company Material Adverse Effect or any other materiality qualification or threshold), individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect; and Parent shall have received a certificate of the Company, executed on its behalf by its President or a Vice President of the Company, dated the Closing Date, certifying to such effect.
(b) Parent shall have received the opinion of McGuireWoods LLP, counsel to Parent, in form and substance reasonably satisfactory to Parent, on the basis of certain facts, representations and assumptions set forth in such opinion, dated the Closing Date, a copy of which will be furnished to the Company, to the effect that (i) the Merger will qualify for United States federal income tax purposes as a reorganization within the meaning of Section 10.3(e368(a) of the Branch Purchase Agreement Code and Parent, Sub and the Company will be "parties" to a reorganization within the meaning of Section 368(b) of the Code and (ii) no gain or loss will be recognized in connection with respect the Merger by any corporation which is a party to the Company’s acceptance reorganization. In rendering such opinion, such counsel shall be entitled to receive and rely upon representations of officers of the proceeds of the Acceptable Financing (Company, Sub and Parent as defined in the Branch Purchase Agreement), shall have been satisfied or waivedto such matters as such counsel may reasonably request.
Appears in 1 contract
Conditions. (a) The obligation This policy any endorsement hereon and the schedule shall be read together as one contract and any word or expression to which a specific meaning has been attached in any part of this policy or of the Investor schedule shall bear such specific meaning wherever it may appear.
1. The Insured shall take all reasonable precautions to consummate prevent or minimize injury, illness, loss or damage which may give rise to a claim under this policy.
2. In the Closing event of any incident or circumstance which may give rise to a claim for indemnity under this policy, the Insured shall give immediate notice in writing to the Insurer. Such notice having been given not later than 30 days after expiry of the policy period, any claim to which that incident or circumstance has given rise, which may be made within 36 months after the expiry of the period specified in the schedule, shall be deemed for the purpose of this policy to have been made during the existence hereof.
3. The Insured shall not admit liability or settle or make or promise any payment in respect of any claim which may be the subject to of indemnity hereunder, or incur any costs or expenses in connection therewith, without the condition that all representations and warranties and other statements written consent of the Company Insurer which shall be true entitled to take over and correct as conduct in the name of the Insured the defence and/or settlement of any such claim, for which purpose the Insured shall give all the information and assistance that the Insurer may reasonably require. The Insurer will not settle any claim without the consent of the Insured. If, however, the Insured refuses to consent to any settlement recommended by the Insurer and shall elect to contest or continue any legal proceedings, then the liability of the Insurer shall not exceed the amount for which the claim could have been so settled plus the costs and expenses incurred with its consent up to the date of such refusal.
4. The Insurer may pay to the Insured the maximum sum payable under this Agreement policy in respect of any occurrence or any lesser sum for which the claim or claims arising from such occurrence can be settled and the date Insurer shall not be under any further liability in respect of that occurrence except for the payment of costs and expenses of litigation incurred prior to such payment.
5. If at the time of any occurrence or claim there is or but for the existence of this policy would be any other policy of indemnity or insurance in favour of or effected by or on behalf of the Closing (Insured applicable to such occurrence or claim the Insurer shall not be liable under this policy to indemnify the Insured in respect of such occurrence or claim except those representations as far as concerns any excess beyond the amount which would be payable under such other indemnity or insurance had this policy not been effected.
6. Where a retroactive date is specified in the schedule, this insurance does not apply to claims made against the Insured by reason of any negligent act, error or omission committed, occurred or alleged to have been committed or occurence prior to the said retroactive date.
7. The Insured shall at all times
a) maintain accurate descriptive records of all professional services which shall be available for inspection and warranties that use by their terms speak specifically the Insurer or its duly appointed representatives insofar as they pertain to any claim hereunder,
b) give to the Insurer or its duly appointed representatives such information, assistance and signed statements as the Insurer may require, and
c) assist in the defence of any claim at its own expense;
8. The due observance and fulfilment of the date terms, provisions and conditions so far as they relate to anything to be done or complied with by the Insured and the truth of the statements in the proposal made by him (which shall be the basis of this Agreement or some other date contract and held to be incorporated herein) shall be true conditions precedent to any liability of the Insurer.
9. In the event of any dispute arising between the Insured and correct the Insurer this insurance shall be governed by the law of the country specified in the schedule whose courts shall be the only ones having jurisdiction in any dispute arising hereunder.
10. It is hereby agreed that if any payment is made under this insurance in respect of a claim, the Insurer is thereupon subrogated to all the Insured's rights of recovery on relation thereto.
11. If the Insured makes any claim knowing the same to be fraudulent or false, as regards the amount or otherwise, this insurance shall become void and all claims thereunder shall be forfeited.
12. This insurance shall not apply in connection with any insurance and shall only pay losses if and so far as they are not recoverable under any other insurance.
13. The indemnity provided by this policy is restricted to apply in respect of a) compensation resulting from judgement rendered by or obtained from a court of competent jurisdiction in the territory stated in the schedule b) charges, expenses and legal costs incurred and recoverable in the territory stated in the schedule.
14. In the absence of a local legal regulations regarding the cancellation this insurance may be cancelled by the Insured at any time by written notice to the Insurer. This insurance may also be cancelled by or on behalf of the Insurer by registered, certified or other first class mail to the Insured's address as shown in the schedule, containing written notice about when, not less than 30 days thereafter, the cancellation shall be effective. The mailing of such date), except for such failures to notice as aforesaid shall be so true sufficient proof of notice and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company this insurance shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since terminate at the date hereof no Material Adverse Effect and hour specified in such notice.
15. If this insurance is cancelled by the Insured, the Insurer shall have occurred and refund the customary short rate proportion of the premium hereon. If this insurance is cancelled by, or on behalf of, the Insurer for any reason other than non-payment of the premium or any breach of contract by the Insured, the Insurer shall refund the pro rata proportion of the premium hereon.
16. Payment or tender of any unearned premium by the Insurer shall not be continuing with respect to either (x) the Company or (y) the Company after giving effect a condition precedent to the transactions contemplated by the Branch Purchase Agreementeffectiveness of cancellation but such payment shall be made as soon as practicable.
(b) The obligation 17. If the period of the Company to consummate the Closing shall be subject limitation relating to the condition that all representations and warranties and other statements giving of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that notice is prohibited or made void 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgmentstatutory provision, injunction, order or decree such period shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power be amended so as to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect be equal to the purchase minimum period of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied notice permitted by such law or waivedstatutory provision.
Appears in 1 contract
Conditions. (a) The obligation of the Investor to consummate purchase and acquire the Closing Shares hereunder shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as on each of the date of this Agreement and the date of the Closing (except those 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); and Date, the condition that the Investor Company shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor , and the Company to consummate the Closing shall be subject to the following additional conditions:
(1a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing, no provision stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, and the Investor shall have received the Prospectus in accordance with the federal securities laws.
(b) Prior to the Closing Date, there shall not have occurred any change, or any development involving a prospective change, which would constitute a Material Adverse Effect, and that makes it impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(c) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Shares or materially and adversely affect or reasonably be believed to materially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any applicable law other nature by any federal or regulation and no judgment, injunction, order or decree state court of competent jurisdiction shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any have been issued as of the Investor Shares;Closing Date which would prevent the issuance or sale of the Shares or materially and adversely affect or reasonably be believed to materially and adversely affect the business or operations of the Company.
(2d) The Investor shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, counsel to the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates Company, such counsel’s written opinion, addressed to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of dated the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions Date, in form and substance as set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(eExhibit B.
(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), The Shares shall have been satisfied or waived.authorized for quotation on the NASDAQ Global Market, Inc.
Appears in 1 contract
Conditions. 5.1 The obligation of the Seller to effect the Completion is subject to the satisfaction (or waiver agreed to in writing by the Seller) at or prior to the Completion of each of the following conditions:
(a) The obligation Purchaser shall have obtained the approval from the Financial Services Commission (the “FSC”) with respect to its application filed under the Financial Holding Companies Act of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements Korea for inclusion of the Company as a subsidiary of the Purchaser due to the acquisition of the Shares (the “Purchaser Required Approval”);
(b) No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Applicable Law or Order prohibiting or making illegal the consummation of the transactions contemplated hereby (provided, that if any Governmental Authority enacts, issues, promulgates, enforces or enters any such Order, the Seller shall use its best endeavours to ensure such Order is vacated by pursuing all available legal challenges and appeals thereto);
(c) Each of the Purchaser’s Warranties shall be true and correct in all respects, in each case, as of the date of this Agreement and the date as of the Closing Completion Date as though made on and as of such date (except those representations and warranties that other than Purchaser’s Warranties which by their terms speak specifically address matters only as of another specified date, which shall be true and correct only as of such date), except where the failure of such Purchaser’s Warranties to be so true and correct has not, individually or in the aggregate, materially impaired or prevented the ability of the Purchaser to consummate the transactions contemplated by the Transaction Documents; and
(d) The Purchaser shall have, in all material respects, performed and complied with the agreements and covenants required hereunder to be performed or complied with by it at or prior to the Completion.
5.2 The obligation of the Purchaser to effect the Completion is subject to the satisfaction (or waiver agreed to in writing by the Purchaser) at or prior to the Completion of each of the following conditions:
(a) The Purchaser shall have obtained the Purchaser Required Approval;
(b) No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Applicable Law or Order prohibiting or making illegal the consummation of the transactions contemplated hereby (provided, that if any Governmental Authority enacts, issues, promulgates, enforces or enters any such Order, the Purchaser shall use its best endeavours to ensure such Order is vacated by pursuing all available legal challenges and appeals thereto);
(c) Each of the Seller’s Warranties shall be true and correct in all respects, in each case, as of the date of this Agreement or some and as of the Completion Date as though made on and as of such date (other date than Seller’s Warranties which by their terms address matters only as of another specified date, which shall be true and correct only as of such date), except for where the failure of such failures Seller’s Warranties to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would has not havehad, individually or in the aggregate, a Material Adverse Effect; the condition that the Company ;
(d) The Seller shall have performed have, in all material respects all of its obligations respects, performed and complied with the agreements and covenants required hereunder theretofore to be performed or complied with by it at or prior to the Completion; and
(without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect e) There shall not have occurred and be continuing with respect any Material Adverse Effect.
5.3 Each Party undertakes to either use its best endeavours to ensure that the conditions set forth in Clauses 5.1 and 5.2 (xcollectively, the “Conditions”) which it is in control of, or responsible for hereunder, are fulfilled as soon as reasonably practicable and, in any event, by the Company or (y) Long Stop Date. If it becomes apparent that the Company after giving effect FSC will not otherwise give the Purchaser Required Approval, the Purchaser shall promptly notify the Seller and shall promptly offer, accept and agree to all such conditions, obligations, undertakings and/or modifications as are required by the FSC to obtain the Purchaser Required Approval.
5.4 Without prejudice to the transactions contemplated by generality of Clause 5.3, the Branch Purchase Agreement.
Purchaser shall within 5 (bfive) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of Business Days after the date of this Agreement commence unofficial discussion with the FSC regarding its filing of a formal application for the Purchaser Required Approval, and shall file the date of the Closing (except those representations and warranties that by their terms speak specifically application as of soon as possible after the date of this Agreement but in no event later than 15 (fifteen) Business Days after the date of this Agreement, subject to the FSC’s confirmation for the submission of the formal application.
5.5 Without prejudice to Clauses 5.3 and 5.4, the Purchaser shall ensure that any notifications and/or filings made by it in connection with the Purchaser Required Approval are made as soon as reasonably practicable and with all due care and that such notifications and/or filings are accurate and complete, in all material respects, with regard to all requirements specified by the relevant Governmental Authority. In furtherance of the foregoing, the Seller shall:
(a) render to the Purchaser such assistance as may reasonably be requested by the Purchaser in respect of the Purchaser’s obligations to obtain the Purchaser Required Approval; and
(b) as soon as reasonably practicable following a request from the Purchaser, provide the Purchaser with all information reasonably necessary to make any notification or some other date filing in connection with the Purchaser Required Approval or as requested by any Governmental Authority, provided that neither the Seller nor any member of the Seller’s Group shall be true required under this Clause 5.5 to provide the Purchaser or any member of the Purchaser’s Group with documents or information which contain commercially sensitive or confidential information which the Seller considers (acting in good faith and correct as on a reasonable basis) the disclosure of which would be in violation of any Applicable Law.
5.6 Each Party shall keep the other Party promptly informed of, and shall consult with the other Party regarding, the progress of satisfying the Conditions which it is in control of, or responsible for hereunder. Each Party shall immediately inform the other Party of all developments which would or might reasonably be expected to result in such date); Party becoming unable to comply with, or satisfy in any respect, any Condition, which it is in control of, or responsible for hereunder. Without any prejudice to the generality of the foregoing, the Purchaser shall, to the extent permitted by Applicable Law and the condition that requirements of Governmental Authorities:
(a) consult with the Investor shall have performed all Seller or its nominated professional advisers prior to communicating with the FSC (including by email, telephone and text) in any material respect in connection with the Purchaser Required Approval;
(b) give the Seller prior written notice of, and (if the Seller so reasonably requests) procure permission for the attendance of its obligations hereunder theretofore to be performed.Authorised Representatives of the Seller at, substantive meetings and teleconferences with applicable Governmental Authorities in connection with the Purchaser Required Approval;
(c) The obligation provide the Seller with draft copies of each of the Investor and the Company all material written submissions to consummate the Closing shall be subject any Governmental Authority in relation to the following additional conditions:
Purchaser Required Approval (1other than any such submission or any part thereof that the Purchaser considers (acting in good faith and on a reasonable basis) no provision of to be competitively sensitive or required to be kept confidential under contractual obligations or Applicable Law) at such time as will permit the Seller a reasonable opportunity to provide comments on such material submissions before they are submitted or sent or made and, in completing such material submissions or communications, and to the extent reasonably practicable, have due regard to any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase reasonable comments made by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Seller; and
(3d) promptly provide the conditions set forth Seller upon receipt with copies of all correspondence received from the relevant Governmental Authorities in Section 10 of any material respect in connection with the Branch Purchase Agreement, Purchaser Required Approval (other than any such correspondence or any part thereof that the condition set forth Purchaser considers (acting in Section 10.3(egood faith and on a reasonable basis) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreementbe competitively sensitive or required to be kept confidential under contractual obligations or Applicable Law), shall have been satisfied or waived.
Appears in 1 contract
Sources: Share Purchase Agreement (Prudential Financial Inc)
Conditions. (a) The obligation obligations of the Investor Investment Entity to consummate cancel the Valero Obligations in exchange for the Shares at the First Exchange Closing and any Optional Closing shall be subject to the condition that all satisfaction (or waiver) of the following conditions:
(i) Valero shall have furnished to the Investment Entity an opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., special counsel to Valero, dated the applicable Closing Date in the form of Exhibit B hereto and of ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel of Valero, dated the applicable Closing Date in the form of Exhibit C hereto;
(ii) the private letter ruling (as described in the Registration Statement) shall remain in full force and effect and shall not have been revoked in whole or in part as of the applicable Closing Date;
(iii) no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, or other legal restraint or prohibition shall be in effect preventing the transactions contemplated to occur at the First Exchange Closing or the Optional Exchange Closing, as applicable;
(iv) (A) the representations and warranties and other statements of the Company Valero in this Agreement shall be true and correct in all respects on and as of the date of applicable Closing Date, with the same effect as if made on the applicable Closing Date, (B) Valero shall have complied with all the covenants and satisfied all the conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the applicable Closing Date and (C) Valero shall have furnished to the date Investment Entity a certificate of Valero in a form reasonably satisfactory to the Investment Entity, signed by an authorized officer of Valero, in his or her capacity as an officer of Valero and not in his or her individual capacity, and dated the applicable Closing Date, to the effect set forth in clauses (except those A) and (B) above;
(A) the representations and warranties that by their terms speak specifically as of the date of CST Brands in this Agreement or some other date shall be true and correct in all respects on and as of such date)the applicable Closing Date, except for such failures to be so true and correct with the same effect as if made on the applicable Closing Date, (without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinB) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company CST Brands shall have performed in complied with all material respects the covenants and satisfied all of the conditions on its obligations hereunder theretofore part to be performed or satisfied pursuant to this Agreement at or prior to the applicable Closing Date and (without giving C) CST Brands shall have furnished to the Investment Entity a certificate of CST Brands in a form reasonably satisfactory to the Investment Entity, signed by the chief executive officer and chief financial officer of CST Brands, dated the applicable Closing Date, to the effect to any qualification as to materiality or Material Adverse Effect contained therein); set forth in clause (A) and (B) above;
(vi) the Underwriting Agreement has been duly executed and delivered and shall remain in full force and effect and the condition that since conditions to the date hereof no Material Adverse Effect shall have occurred obligations of the Underwriters to purchase and be continuing pay for the applicable Shares as set forth in the first paragraph of Section 6 (with respect to either Valero and CST Brands only) and Section 6(a), (xb), (e), (g), (j), (k) (with respect to Valero and CST Brands only), (m) and (o) of the Company Underwriting Agreement shall have been satisfied or waived (y) the Company after giving effect other than those conditions that by their nature cannot be satisfied prior to the transactions contemplated applicable closing pursuant to the Underwriting Agreement); and
(vii) Valero shall have furnished to the Investment Entity a properly completed and executed (i) United States Treasury Department Form W-9 (or other applicable form or statement specified by the Branch Purchase Treasury Department regulations in lieu thereof) and (ii) certification of non-foreign status substantially in the form set forth in Treasury Regulations Section 1.1445-2(b)(2)(iv). In the event that any of the conditions set forth in this clause (a) shall not have been fulfilled (or waived by the Investment Entity) on the First Exchange Closing Date, this Agreement may be terminated by the Investment Entity by delivering a written notice of termination to Valero and CST Brands. The parties acknowledge and agree that any of their respective rights and/or obligations under the Underwriting Agreement shall not be affected by any such termination of this Agreement.
(b) The obligation obligations of Valero to exchange Shares for cancellation of the Company to consummate Valero Obligations at the First Exchange Closing and any Optional Closing shall be subject to the condition that all satisfaction (or waiver) of the following conditions:
(i) The Investment Entity shall have furnished to Valero an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Investment Entity, dated the applicable Closing Date in the form of Exhibit D hereto;
(ii) (A) the representations and warranties and other statements of the Investor Investment Entity in this Agreement shall be true and correct in all respects on and as of the date of this Agreement applicable Closing Date, with the same effect as if made on the applicable Closing Date, (B) the Investment Entity shall have complied with all the agreements and satisfied all the date conditions on its part to be performed or satisfied at or prior to the applicable Closing Date and (C) the Investment Entity shall have furnished to Valero a certificate of the Investment Entity in a form reasonably satisfactory to Valero, signed by an authorized officer and dated the applicable Closing Date, to the effect set forth in clauses (except those representations A) and warranties that by their terms speak specifically (B) above;
(iii) the private letter ruling (as described in the Registration Statement) shall remain in full force and effect and shall not have been revoked in whole or in part as of the date applicable Closing Date;
(iv) no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any federal, state, local or foreign government or any court of this Agreement competent jurisdiction, administrative agency or some commission or other date governmental authority or instrumentality, domestic or foreign, or other legal restraint or prohibition shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit in effect preventing the transactions contemplated hereby to occur at the First Exchange Closing or prohibit the Investor from owning or voting any of the Investor SharesOptional Exchange Closing, as applicable;
(2v) the purchase Investment Entity shall have delivered to Valero IRS Form W-9 (or other applicable form or statement specified by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change Treasury Department regulation in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)lieu thereof; and
(3vi) the Underwriting Agreement shall have been duly executed and delivered and shall remain in full force and effect and the conditions to the obligations of the Underwriters to purchase and pay for the applicable Shares as set forth in the first paragraph of Section 6 (with respect to the Investment Entity only) and Section 6(c)(d), (f), (i), (k) (with respect to the Investment Entity only) and (l)-(n) of the Underwriting Agreement shall have been satisfied or waived (other than those conditions that by their nature cannot be satisfied prior to the applicable closing pursuant to the Underwriting Agreement). In the event that any of the conditions set forth in Section 10 this clause (b) shall not have been fulfilled (or waived by Valero) on the First Exchange Closing Date, this Agreement may be terminated by Valero by delivering a written notice of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect termination to the Company’s acceptance Investment Entity and CST Brands. No representation, warranty or covenant made by the Investment Entity in this Agreement shall give rise to any claim in respect of tax liabilities. The parties acknowledge and agree that any of their respective rights and/or obligations under the proceeds Underwriting Agreement shall not be affected by any such termination of the Acceptable Financing (as defined in the Branch Purchase this Agreement), shall have been satisfied or waived.
Appears in 1 contract
Conditions. Notwithstanding anything in this Commitment Letter (a) The including each of the exhibits attached hereto), the Fee Letters, the Facility Documentation or any other agreement or undertaking concerning the financing of the Transactions to the contrary, the obligation of the Investor Commitment Party hereunder to fund the Term Facility on the Closing Date, and the agreements of the Arranger to perform the services described herein, are subject solely to the conditions specified in Exhibit C hereto, and there are no conditions (expressed, implied or otherwise) to such funding or performance, including compliance with the terms of this Commitment Letter, the Fee Letters or the Facility Documentation, other than those expressly set forth in Exhibit C hereto (such conditions, collectively, the “Limited Conditionality Provisions”), and, upon satisfaction (or waiver by the Commitment Party) of such conditions, the initial funding of the Term Facility shall occur. Notwithstanding anything in this Commitment Letter (including each of the exhibits attached hereto), the Fee Letters, the Facility Documentation or any other agreement or other undertaking concerning the financing of the Transactions to the contrary, (i) the only representations and warranties, the accuracy of which will be a condition to the availability of the Term Facility on the Closing Date shall be (A) such of the representations and warranties in the Acquisition Agreement made by the Company, the Seller and their respective subsidiaries as are material to the interests of the Lenders, but only to the extent that you have (and/or your applicable affiliate has) the right to terminate your (and/or its) obligations under the Acquisition Agreement or the right not to consummate the Closing shall be subject Acquisition pursuant to the condition that all terms of the Acquisition Agreement as a result of a breach of such representations and warranties in the Acquisition Agreement (to such extent, the “Specified Acquisition Agreement Representations”) and other statements (B) the Specified Representations (as defined below) and (ii) the terms of the Company Facility Documentation shall be true consistent with the Documentation Principles (as defined in Exhibit B) and correct as shall be in a form such that they do not impair the availability of the date of this Agreement and the date of Term Facility on the Closing Date if the Limited Conditionality Provisions are satisfied (except those representations and warranties or waived by the Commitment Party) (it being understood that, to the extent that by their terms speak specifically any security interest in any Collateral (as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually defined in the aggregate, a Material Adverse Effect; Existing Credit Agreement (as defined in Exhibit B)) is not or cannot be provided and/or perfected (if applicable) on the condition that the Company shall have performed Closing Date (other than (i) any security interest in all material respects all of its obligations hereunder theretofore to any Collateral which may be performed perfected (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either if applicable) by (x) the Company filing of a financing statement under the Uniform Commercial Code (the “UCC”) or (y) the Company after giving effect delivery to the transactions contemplated by the Branch Purchase Agreement.
Administrative Agent (b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(edesignee) of the Branch Purchase Agreement certificated equity interests with respect to the Company’s acceptance certificated securities (and related stock powers or other similar transfer instruments) of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.the
Appears in 1 contract
Conditions. (a) The obligation of the Investor Purchasers to consummate purchase the Closing shall be Series A Notes under this Agreement is subject to the condition that all satisfaction or waiver of each of the following conditions:
(i) All the representations and warranties and other statements of the Company Issuer in this Agreement shall be true and correct in all material respects (other than representations and warranties with a materiality qualifier, which shall be true and correct as of the date of this Agreement written) at and the date as of the Closing (except those representations Date after giving effect to the Transactions with the same force and warranties that by their terms speak specifically effect as if made on and as of such date. On or prior to the Closing Date, the Issuer shall have performed or complied in all material respects with all of the agreements and satisfied in all material respects all conditions on its part to be performed, complied with or satisfied pursuant to this Agreement.
(ii) The Offering Circular shall have been printed and copies made available to the Purchasers not later than 12:00 noon, New York City time, on the first business day following the date of this Agreement or some other at such later date and time as the Purchasers may approve.
(iii) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or interfere with the consummation of any of the Transactions; and no stop order suspending the qualification or exemption from qualification of any of the Series A Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or be pending or contemplated.
(iv) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of any of the Transactions. No Proceeding shall be true and correct as of such date)pending or threatened other than Proceedings that (A) if adversely determined could not, except for such failures to be so true and correct (without giving effect to any qualification as to materiality singly or Material Adverse Effect contained therein) as would not have, individually in the aggregate, adversely affect the issuance or marketability of the Series A Notes and (B) could not reasonably be expected to have a Material Adverse Effect.
(v) Since the date as of which information is given in the Offering Circular, there shall not have been any Material Adverse Change.
(vi) The Notes shall have (A) been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the PORTAL market, and (B) received a rating of B and B2 from Standard & Poor's Corporation and ▇▇▇▇▇'▇ Investors Services, Inc., respectively.
(vii) The Purchasers shall have received on the Closing Date (A) certificates dated the Closing Date, signed by (1) the President and (2) the principal financial or accounting officer of the Issuer, on behalf of the Issuer, (x) confirming the matters set forth in paragraphs (i) through (v) of this Section 9(a) and (y) certifying as to such other matters as the Purchasers may reasonably request, (B) a certificate, dated the Closing Date, signed by the Secretary of the Issuer, certifying such matters as the Purchasers may reasonably request and (C) a certificate of solvency, dated the Closing Date, signed by the principal financial or accounting officer of the Issuer substantially in the form previously approved by the Purchasers.
(viii) The Purchasers shall have received:
(1) an opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Issuer ("Winston & ▇▇▇▇▇▇"), dated the Closing Date, in the form of Exhibit A hereto; and
(2) an opinion, dated the condition Closing Date, of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois), in form and substance reasonably satisfactory to the Purchasers covering such matters as are customarily covered in such opinions.
(ix) The Purchasers shall have received from Ernst & Young LLP (A) a customary comfort letter, dated the date of the Offering Circular, in form and substance reasonably satisfactory to the Purchasers, with respect to the financial statements and certain financial information contained in the Offering Circular, and (B) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Purchasers, to the effect that they reaffirm the statements made in the letter furnished pursuant to clause (A), except that the Company specified date referred to shall be a date not more than five days prior to the Closing Date.
(x) The Documents shall have performed been executed and delivered by all parties thereto and the Purchasers shall have received a fully executed original of each Document.
(xi) The Purchasers shall have received copies of duly executed payoff letters, UCC-3 termination statements, mortgage releases and other collateral releases and terminations, each in form and substance satisfactory to the Purchasers, evidencing
(1) the repayment of the outstanding indebtedness of the Issuer under the Old Credit Facility (as defined in the Offering Circular) and (2) the release of all Liens created under the Old Credit Facility on each item constituting Collateral under the Indenture, and each such release shall be in full force and effect.
(xii) The Purchasers shall have received copies of commitments to issue ALTA title insurance policies on the real property collateral in form and substance satisfactory to the Purchasers.
(xiii) The Trustee shall have received executed copies of each UCC-1 financing statement signed by the Issuer, naming the Trustee as secured party and filed in such jurisdictions as the Purchasers may reasonably require.
(xiv) The Issuer shall have entered into the New Credit Facility and an amendment to the Securities Purchase Agreement on or prior to the Closing.
(xv) Counsel to the Purchasers shall have been furnished with such documents as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in this Section 9 and in order to evidence the accuracy, completeness or satisfaction in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality of the representations, warranties or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementconditions herein contained.
(b) The obligation of the Company Issuer to consummate sell the Closing shall be Series A Notes under this Agreement is subject to the condition that all satisfaction or waiver of each of the following conditions:
(i) The Purchasers shall have delivered payment to the Issuer for the Series A Notes pursuant to Sections 2 and 4 of this Agreement.
(ii) All of the representations and warranties and other statements of the Investor Purchasers in this Agreement shall be true and correct in all material respects at and as of the date of this Agreement Closing Date, with the same force and the date of the Closing (except those representations effect as if made on 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(ciii) The obligation No injunction, restraining order or order of each any nature by a Governmental Authority shall have been issued as of the Investor Closing Date that would prevent or interfere with the issuance and sale of the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation Series A Notes; and no judgment, injunction, stop order suspending the qualification or decree shall prohibit the transactions contemplated hereby or prohibit the Investor exemption from owning or voting qualification of any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares Series A Notes in any jurisdiction shall not (i) require the Investor have been issued and no Proceeding for that purpose shall have been commenced or any of its affiliates to file a prior notice under the Change in Bank Control Act, be pending or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date contemplated as of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedDate.
Appears in 1 contract
Conditions. (a) The obligation In addition to any and all other conditions precedent set forth in this Agreement, Buyer's obligations under this Agreement are subject to Buyer's written approval of the Investor following conditions, but Buyer shall have the right to consummate waive any such condition(s). In the Closing event Buyer determines that any such condition is not satisfied on or before the dates set forth below, Buyer may, in its sole and absolute discretion, disapprove said condition. Buyer's failure to deliver written notice of approval of any of the following conditions shall be subject conclusively deemed Buyer's disapproval thereof, and this Agreement shall, at Buyer’s option, terminate, in which event Escrow Agent shall immediately return the Deposit and the Additional Deposit to Buyer, Seller shall pay all escrow fees, and Seller shall have no further obligations under this Agreement.
A. On or before the Approval Date, Buyer's review and approval of such documents as Buyer may request reasonable from Seller, if in Seller’s possession.
B. On or before the Approval Date, Buyer's approval of its inspection of the Property (including but not limited to the physical condition that thereof). Seller shall make the Property available at reasonable times for inspection(s) by Buyer and its employees and agents in accordance with the provisions of Paragraph 22 hereof, which shall be completed at Buyer's sole expense. All inspections shall require insurance certificates naming Seller as an “also insured” party.
C. Upon the Closing, the Title Company shall be unconditionally committed to issue to Buyer the Title Policy as approved pursuant to Paragraph 3 hereof.
D. Upon the Closing, Seller shall not be in default under this Agreement and shall have performed its obligations hereunder, and all representations and warranties and other statements of the Company Seller shall be true and correct when made and as of the date of this Agreement and Closing.
E. On or before the date Approval Date, Buyer has obtained the approval of the Closing (except those representations and warranties that by their terms speak specifically as board of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all directors of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementparent entity.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 1 contract
Sources: Real Estate Purchase Agreement (Hines Global Reit Ii, Inc.)
Conditions. (a) The obligation of the Investor Buyer to consummate the Acquisition on the Closing shall be Date is subject to the condition that satisfaction of the following conditions (any or all of which may be waived by Buyer, in its sole discretion, in whole or in part, to the extent permitted by applicable law):
(i) each of the representations and warranties and other statements of the Company Seller contained herein shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as though the same had been made on and as of the Closing Date;
(ii) Seller shall have performed and complied, in all material respects, with the covenants and provisions of this Agreement required to be performed or complied with by it between the date hereof and the Closing Date;
(iii) since the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement Agreement, no event or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect circumstance shall have occurred and be continuing that has had, or is reasonably likely to have, a material adverse effect on the business, assets, properties, liabilities, financial condition or results of operations of Seller;
(A) no Legal Proceeding shall have been instituted or threatened or claim or demand made against Seller or Buyer seeking to restrain or prohibit or to obtain damages with respect to either (x) the Company or (y) the Company after giving effect to consummation of the transactions contemplated by this Agreement, or which might, in the Branch Purchase Agreement.
reasonable opinion of Buyer, result in a material adverse change in the business, assets, properties, liabilities, financial condition or results of operations of Seller and (bB) The obligation there shall not be in effect any Order of a Government Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements consummation of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharesby this Agreement;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 1 contract
Conditions. (a) 6.1 Conditions to Each Party's Obligations to Effect the Merger. The obligation respective obligations of each party to effect the Investor to consummate the Closing Merger shall be subject to the condition that all representations Merger being approved and warranties adopted by the requisite vote of the holders of the Base Ten Common Stock and other statements by the requisite vote of the holders of the Company's Capital Stock prior to the Effective Time.
6.2 Conditions to Obligations of the Company to Effect the Merger. The obligations of the Company to effect the Merger shall be subject to the fulfillment or waiver at or prior to the Effective Time of the additional following conditions:
(a) Each representation and warranty set forth in Article III shall be true and correct in all material respects as of the date of this Agreement and the date of the Closing Closing.
(except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinb) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company Purchasers shall have performed in all material respects all of its obligations hereunder theretofore each covenant or other obligation required to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect by them pursuant to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject Transaction Documents prior to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedClosing.
(c) The obligation of each consummation of the Investor and transactions contemplated by the Transaction Documents shall not be prohibited by any Legal Requirement or subject the Company to consummate the Closing any penalty or liability arising under any Legal Requirement or imposed by any Government Entity.
(d) No action, suit or proceeding shall be subject pending or threatened before any Government Entity the result of which could prevent or prohibit the consummation of any transaction pursuant to the Transaction Documents, cause any such transaction to be rescinded following additional conditions:
(1) no provision such consummation or adversely affect Purchasers performance of any applicable law or regulation their obligations pursuant to the Transaction Documents, and no judgment, injunctionorder, order decree, stipulation, injunction or decree charge having any such effect shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;exist.
(2e) All filings, notices, licenses, consents, authorizations, accreditation, waivers, approvals and the purchase like of, to or with any Government Entity or any other Person that are required for the Purchasers to consummate the Merger or any other transaction contemplated by the Investor of the Investor Shares shall not (i) require the Investor Transaction Documents or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of own the Company would be aggregated with Shares or to conduct the Investor’s securities of Business thereafter (the "Purchasers' Consents") shall have been duly made or obtained.
(f) Base Ten shall have delivered to the Company for purposes of any bank regulation or lawa Certificate dated the Closing Date, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities signed by the Investor and such other persons) would represent more than 9.9% President of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) Base Ten stating that the conditions set forth in Section 10 6.2 (a) through (e) have been satisfied.
(g) Base Ten shall have delivered to the Company a copy of the Branch Purchase resolutions duly adopted by Base Ten's board of directors authorizing Base Ten's execution, delivery and performance of the Transaction Documents to which Base Ten is a party and the consummation of the Merger and all other transactions contemplated by the Transaction Documents, as in effect as of the Closing, certified by an officer of Base Ten.
(h) Base Ten shall have delivered to the Company a copy of the resolutions duly adopted by Newco's board of directors authorizing Newco's execution, delivery and performance of the Transaction Documents to which Newco is a party and the consummation of the Merger and all other transactions contemplated by the Transaction Documents, as in effect as of the Closing, certified by an officer of Newco.
(i) Base Ten shall have delivered to the Company a copy of the resolutions duly adopted by Base Ten as the stockholder of Newco approving the Merger and this Agreement, other certified by an officer of Newco.
(j) Base Ten shall have delivered to the Company a certificate (dated not more than five business days prior to the condition set forth in Section 10.3(eClosing) of the Branch Purchase Agreement with respect Treasurer of the State of New Jersey as to the Company’s acceptance good standing of Base Ten in New Jersey and a certificate (dated not more than five business days prior to the Closing) of the proceeds Secretary of State of the Acceptable Financing State of Nevada as to the good standing of Newco in Nevada.
(k) Base Ten shall have delivered to the Company copies of the Purchasers' Consents.
(l) Base Ten shall have delivered to the Company written resignations from each director and officer of Base Ten set forth on Schedule 6.2(l) from such directorships and offices, to take effect as defined of the Closing.
(m) At or prior to Closing, Base Ten shall file with the SEC a Form 15, and such Form 15 shall not have been rejected by the SEC as of the Effective Time; provided, that, such filing shall be made only if the Parties anticipate that as a result of the Share Combination, Base Ten shall thereupon have fewer than 300 stockholders of record, as determined in accordance with the Exchange Act and the Regulations promulgated thereunder.
(n) On the Closing Date, Base Ten shall have cash or cash equivalents of no less than $450,000.00 in the Branch Purchase Agreement)accounts identified on Schedule 3.21 after the payment of all current liabilities payable in the ordinary course of business excluding $116,000 not expected to be paid, shall have been satisfied or waivedand the payment of liabilities reflected as due upon the consummation of the Merger on Schedule 3.15.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Base Ten Systems Inc)
Conditions. (a) 2.1 The respective obligation of Seller and Purchaser to effect the Investor to consummate the Closing transactions contemplated by this Agreement shall be subject to the condition satisfaction at or prior to the Closing of the following conditions:
(a) Subject to Section 5.16 hereto, the third party consents set forth on Schedule 2.1 hereto (collectively, the "Authorizations") shall have occurred, been filed or been obtained and not rescinded. Subject to Section 5.8, Seller shall pay the costs associated with obtaining the Authorizations; provided that all no party hereto shall have liability to any other arising from or related to any failure to obtain Authorizations of the limited partners of the Partnerships to the transactions contemplated hereby; provided further that no party hereto shall be required to pay to any party providing an Authorization any amount in respect of such Authorization.
(b) There shall not (i) be in effect any statute, regulation, order, decree or judgment of any Governmental Entity which makes illegal or enjoins or prevents the consummation of the transactions contemplated by this Agreement or (ii) have been commenced or threatened any action or proceeding by any Governmental Entity which seeks to prevent or enjoin the transactions contemplated by this Agreement.
2.2 The obligation of the Purchaser to effect the transactions contemplated by this Agreement shall be further subject to the satisfaction at or prior to the Closing of the following conditions:
(a) The representations and warranties and other statements of the Company Seller in this Agreement shall be true and correct in all mate- rial respects as of the date of this Agreement hereof and the date as of the Closing (except those Date with the same effect as though such representations and warranties had been made at and as of such time, other than representations and warranties that by their terms expressly speak specifically as of the a specific date of this Agreement or some other date shall time (which need only be true and correct as of such datedate or time), except for such failures to be so true and correct .
(without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinb) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company The Seller shall have performed in all material respects all of its obligations hereunder theretofore required to be performed by it under this Agreement at or prior to the Closing.
(without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect c) The Seller shall have occurred delivered or caused to be delivered to the Purchaser each of the documents specified in Section 1.4(b) hereof.
(d) The Purchaser shall have received from Seller a certificate, dated the Closing Date, duly executed by an officer of Seller, reasonably satisfactory in form to the Purchaser, to the effect of (a) and be continuing with respect (b) above (the "Seller's Officer's Certificate").
2.3 The obligation of the Seller to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by this Agreement shall be further subject to the Branch Purchase Agreementsatisfaction at or prior to the Closing of the following conditions:
(a) The representations and warranties of the Purchaser and Related in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date with the same effect as though such representations and warranties had been made at and as of such time, other than representations and warranties that speak as of a specific date or time (which need only be true and correct in all material respects as of such date or time).
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations Purchaser and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor Related shall have performed in all of its material respects all obligations hereunder theretofore required to be performedperformed by it under this Agreement at or prior to the Closing.
(c) The obligation of Purchaser shall have delivered or caused to be delivered to the applicable Seller each of the Investor documents specified in Section 1.4(c) hereof.
(d) The Seller shall have received from the Purchaser and Related a certificate, dated the Closing Date, duly executed by all general partners, an executive officer and the Company to consummate chief financial officer or chief accounting officer, if such positions exist, of the Closing shall be subject Purchaser and Related, reasonably satisfactory in form to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or lawSeller, to collectively be deemed to own, control or have the power to vote securities which effect of (assuming, for this purpose only, full conversion and/or exercise of such securities by a) and (b) above (the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby"Purchaser's Certificate"); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 1 contract
Sources: Purchase Agreement (Liberty Tax Credit Plus Iii Lp)
Conditions. (a) The obligation of any Agent, as agent of the Investor Company, at any time ("Solicitation Time") to consummate solicit offers to purchase the Closing Notes, the obligation of any Purchaser to purchase Notes pursuant to any Terms Agreement, and the obligation of any other purchaser to purchase Notes shall in each case be subject (1) to the condition that all representations and warranties and other statements of the Company shall be herein and all statements of officers of the Company made in any certificate furnished pursuant to the provisions hereof are true and correct (i) in the case of an Agent's obligation to solicit offers to purchase Notes, at and as of such Solicitation Time and (ii) in the case of any Purchaser's or any other purchaser's obligation to purchase Notes, at and as of the time the Company accepts the offer to purchase such Notes and, as the case may be, at and as of the related Time of Delivery or time of purchase; (2) to the condition that at or prior to such Solicitation Time, time of acceptance, Time of Delivery or time of purchase, as the case may be, the Company shall have complied with all its agreements and all conditions on its part to be performed or satisfied hereunder; and (3) to the following additional conditions when and as specified (it being understood that under no circumstance shall any Agent have any duty or obligation to exercise discretionary judgment on behalf of the Company or any purchaser in respect of the fulfillment of any such condition):
(a) Prior to such Solicitation Time or corresponding Time of Delivery or time of purchase, as the case may be:
(i) the Prospectus as amended or supplemented (including, if applicable, the Pricing Supplement) with respect to such Notes shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending before or contemplated by the Commission;
(ii) there shall not have been any downgrading, nor shall any notice have been given of any intended or potential downgrading or any review or possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization", as such term is defined for purposes of Rule 436(g)(2) under the Securities Act subsequent to the date hereof;
(iii) there shall not have been any change, or any development involving a prospective adverse change, in the capital stock or in the long-term debt of the Company or any of its Subsidiaries from that set forth or incorporated by reference in the Registration Statement and Prospectus which would, in the opinion of the Agents, materially impair the investment quality of the Notes;
(iv) the Company and its Subsidiaries shall have no liability or obligation, direct or contingent, which is material to the Company and its Subsidiaries, taken as a whole, other than those reflected or incorporated by reference in the Registration Statement and the Prospectus;
(v) there shall not have been any adverse change or development involving a prospective adverse change, in the condition, financial or otherwise, of the Company or any of its Subsidiaries or the earnings, affairs, or business prospects of the Company or any of its Subsidiaries, whether or not arising in the ordinary course of business, which would, in the opinion of the Agents, materially impair the investment quality of the Notes; and
(vi) there shall not have been any (A) outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic conditions or in the financial markets of the United States or elsewhere that, in the judgment of the applicable Agent, is material and adverse and would, in the judgment of the applicable Agent, make it impracticable to market the Notes on the terms and in the manner contemplated in the Prospectus, (B) suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange or the NASDAQ National Market System or limitation on prices for securities on any such exchange or National Market System, (C) enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in the opinion of the Agents materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any Subsidiary, (D) declaration of a banking moratorium by either federal or New York State authorities or (E) taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in the opinion of the Agents has a material adverse effect on the financial markets in the United States.
(b) On the Commencement Date, and in the case of a purchase of Notes by a Purchaser pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, General Counsel of the Company, or such other counsel acceptable to the Agents, shall have furnished to the Agents or the Purchaser, as the case may be, his written opinion, dated the Commencement Date or Time of Delivery, as the case may be, in form and substance satisfactory to such Agents or such Purchaser, as the case may be, to the effect that:
(i) the Company and each of the Subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority required to carry on its business as described in the Prospectus and to own, lease and operate its properties;
(ii) each of the Company and the Subsidiaries is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock of, or other ownership interests in, each of the Subsidiaries have been duly and validly authorized and issued, are fully paid and non-assessable and are owned by the Company, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature;
(v) the statements (A) incorporated by reference in the Prospectus from Item 3 of the Company's Annual Report on Form 10-K for the year ended December 31, 1997 and (B) incorporated in the Prospectus from Item 1 of Part II of the Company's Quarterly Reports on Form 10-Q filed since such Annual Report, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;
(vi) to the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is or could be a party or to which any of their respective property is or could be subject that are required to be described in the Registration Statement or the Prospectus and are not so described or incorporated by reference, or any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or are required to be filed as an exhibit to the Registration Statement that are not so described or filed or incorporated by reference as required;
(vii) to the best of such counsel's knowledge, neither the Company nor any of the Subsidiaries is in violation of its respective certificate of incorporation or by-laws except for such violations that would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, and, neither the Company nor any of its Subsidiaries is in default in the performance of any obligation, agreement, covenant or condition contained in any bond, debenture, indenture, loan agreement, mortgage, lease or any other agreement or instrument that is material to the Company and its subsidiaries, taken as a whole, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or their respective property is bound;
(viii) neither the Company nor any of the Subsidiaries has violated any Environmental Law or any provisions of the Employee Retirement Income Security Act of 1974, as amended, or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a material adverse effect on the business, prospects, financial condition or results of operation of the Company and its subsidiaries, taken as a whole;
(ix) each of the Company and the Subsidiaries has such Authorizations of, and has made all filings with and notices to, all governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including, without limitation, under any applicable Environmental Laws, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a material adverse effect on the business, prospects, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including, without limitation, the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and such Authorizations contain no restrictions that are materially burdensome to the Company and its subsidiaries, taken as a whole; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a material adverse effect on the business, prospects, financial condition or results of operations of the Company and its subsidiaries, taken as a whole;
(x) the execution, delivery and performance by the Company of this Agreement, any applicable Terms Agreement, the Indenture and the Notes and compliance by the Company with all the provisions hereof and thereof will not conflict with or constitute a breach of any of the terms or provisions of, or a default under, the certificate of incorporation or by-laws of the Company or any of its Subsidiaries or any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company and its subsidiaries, taken as a whole, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or their respective property is bound, except for any such conflict, breach or default which would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over the Company, any of its Subsidiaries or their respective property;
(xi) to the best of such counsel's knowledge, all leases to which the Company or any of its Subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder which might result in any material adverse change in the business, prospects, financial condition or results of operation of the Company and its subsidiaries, taken as a whole, and the Company and its Subsidiaries enjoy peaceful and undisturbed possession under all such leases to which any of them is a party as lessee with such exceptions as do not materially interfere with the use made by the Company or such Subsidiary;
(xii) each document incorporated by reference in the Registration Statement and the Prospectus (except for the financial statements included therein as to which no opinion need be expressed) complied as to form when filed with the Commission in all material respects with the Securities Exchange Act of 1934, as amended.
(1) the Registration Statement and the Prospectus (except for the financial statements, including the notes thereto, and supporting schedules and other financial, statistical and accounting data contained or incorporated by reference therein and the statements of eligibility of the Trustees on Form T-1, as to which no opinion need be expressed) comply as to form in all material respects with the requirements of the Securities Act and the rules and regulations of the Commission thereunder; and (2) nothing has come to the attention of such counsel that would lead such counsel to believe that (except for the financial statements, including the notes thereto, and supporting schedules and other financial, statistical and accounting data contained or incorporated by reference therein and the statements of eligibility of the Trustees on Form T-1 as to which no belief need be expressed) (x) any part of the Registration Statement when such part became effective or on the date of this Agreement and the date contained any untrue statement of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement a material fact or some other date shall be true and correct as of such date), except for such failures omitted to state a material fact required to be so true and correct (without giving effect stated therein or necessary to any qualification as to materiality or Material Adverse Effect contained therein) as would make the statements therein not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company misleading or (y) the Company after giving effect Prospectus on the date hereof contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the opinion and belief set forth in clauses (1) and (2) above shall be deemed not to cover information concerning an offering of particular Notes to the transactions contemplated by extent such information will be set forth in a supplement to the Branch Purchase Agreement.
Prospectus. The opinion described in Section 6 (b) The obligation above shall be rendered to you at the request of the Company to consummate the Closing and shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedso state therein.
(c) The obligation On the Commencement Date, and in the case of each a purchase of Notes by a Purchaser pursuant to a Terms Agreement or otherwise, if called for by the Investor and applicable Terms Agreement or other agreement, at the Company to consummate the Closing shall be subject corresponding Time of Delivery, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the following additional conditionsAgents, shall have furnished to the Agents or such Purchaser, as the case may be, their opinion, dated the Commencement Date or Time of Delivery, as the case may be, to the effect that:
(1i) no provision the forms of the Notes have been duly authorized and, when the terms of a particular Note and its issuance and sale have been duly established in conformity with the Indenture, and when such Note has been duly executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the purchasers thereof in accordance with the terms of this Agreement and any applicable law or regulation and no judgmentTerms Agreement, injunction, order or decree shall prohibit such Note will be entitled to the transactions contemplated hereby or prohibit the Investor from owning or voting any benefits of the Investor Shares;
(2) the purchase by the Investor Indenture and will be a valid and binding obligation of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActCompany, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of enforceable against the Company would in accordance with its terms except (a) as such enforcement may be aggregated with the Investor’s securities limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and (b) as such enforcement may be limited by general principles of the Company for purposes equity, regardless of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.wheth
Appears in 1 contract
Sources: Distribution Agreement (Donaldson Lufkin & Jenrette Inc /Ny/)
Conditions. The several obligations of the Underwriters to purchase the Securities under this Agreement are subject to the satisfaction of each of the following conditions:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company and WFS contained in this Agreement shall be true and correct on the Closing Date with the same force and effect as if made on and as of the date of this Agreement and the date of the Closing Date.
(except those representations and warranties that by their terms speak specifically as of b) The Registration Statement shall have become effective not later than ___P.M., North Carolina time, on the date of this Agreement or some other at such later date and time as the Representative may approve in writing, and at the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been commenced or shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality pending before or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedCommission.
(c) Since June 30, 1999, there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, affairs or business prospects, whether or not arising in the ordinary course of business, of the Company or WFS. On the Closing Date, the Representative shall have received (i) a certificate dated the Closing Date, signed by the President or a Vice President of the Company, confirming the matters set forth in paragraphs (a) (as to the Company's representations and warranties only), (b) and (c) of this Section (as to the Company only), and (ii) a certificate dated the Closing Date, signed by the President or a Vice President of WFS, confirming the matters set forth in paragraphs (a) and (c) of this Section. Such officers may in each certificate rely upon the best of their information and belief as to proceedings contemplated.
(d) The obligation Representative shall have received the opinion of Mitc▇▇▇▇, ▇▇lb▇▇▇▇▇▇ & ▇nup▇ ▇▇▇, counsel for the Company, dated the Closing Date and satisfactory to counsel to the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly existing and in good standing under the laws of the State of California, with corporate power and authority to own its properties, to conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement and each of the Investor Basic Documents to which it is a party, and is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the Company location of its properties or the character of its operations makes such qualification necessary, except such jurisdictions, if any, in which the failure to consummate be 13 14 so qualified will not have a material adverse effect on either the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law business or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any properties of the Investor Shares;Company.
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require The statements in the Investor or any Prospectus set forth under the captions "Summary of its affiliates Prospectus", "The Notes", "The Certificates", "The Contracts Pool" and "Certain Information Regarding the Securities", insofar as such statements purport to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities summarize certain provisions of the Company would be aggregated with Notes, the Investor’s securities Certificates or the Basic Documents, provide a fair summary of such provisions, and the statements in the Prospectus under the captions "Summary of Prospectus -- Tax Status", " -- ERISA Considerations", "Certain Legal Aspects of the Company for purposes of any bank regulation or lawContracts", "Certain Federal Income Tax Consequences", "Certain California Income Tax Consequences" and "ERISA Considerations", to collectively be deemed to own, control the extent such statements constitute matters of law or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement legal conclusions with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement)thereto, shall have been satisfied prepared or waivedreviewed by such counsel and are correct in all material respects.
Appears in 1 contract
Sources: Underwriting Agreement (WFS Financial Auto Loans Inc)
Conditions. The obligations of the Purchaser to consummate the transactions provided for hereby are subject, in the discretion of the Purchaser, to the satisfaction, on or prior to the Closing Date, of each of the following conditions, any of which may be waived by the Purchaser:
(a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company in Article IV shall be true and correct when made and at and as of the date of this Agreement Closing Date as if such representations and the date of the Closing warranties were made at such time (except that those representations and warranties that by their terms speak specifically which are made as of the date of this Agreement or some other a specific date shall be true and correct only as of such date), except for such failures to be so true and correct ;
(without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinb) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company Sellers shall have performed and satisfied in all material respects all of its obligations hereunder theretofore agreements and covenants required hereby to be performed or satisfied by them prior to or at the Closing Date;
(without giving effect c) all Consents from any Person, and all filings, registrations and notifications necessary to any qualification as to materiality or Material Adverse Effect contained therein); and permit the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to consummation of the transactions contemplated by this Agreement and the Branch Purchase Agreement.Ancillary Agreements shall have been obtained or made and the waiting period under the HSR Act shall have expired or been terminated;
(bd) The obligation no Court Order, Action or proceeding shall have been instituted or threatened which makes the transactions contemplated by this Agreement or the Ancillary Agreements illegal or otherwise prohibited;
(e) no Person who or which is not a party to this Agreement or the Ancillary Agreements shall have commenced or threatened to commence any Action seeking to restrain or prohibit, or to obtain damages in connection with, the transactions contemplated by this Agreement or the Ancillary Agreements;
(f) there shall not have occurred any event, change or condition that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect;
(g) the Purchaser and its Representatives shall have completed the Environmental Review, and in the sole discretion of the Company to consummate Purchaser, the Closing Purchaser shall be subject satisfied with the results of the Environmental Review. The Environmental Review shall have no effect whatsoever on the liability of the Sellers to the condition that all representations and Purchaser under this Agreement or otherwise for breach of any representations, warranties and other statements or covenants of the Investor Sellers hereunder;
(h) the Purchaser shall have obtained or been granted the right to use all Permits necessary for the operation of the Business;
(i) the Sellers shall have delivered the documents required to be delivered by them pursuant to Section 3.2, and the Ancillary Agreements shall be true in full force and correct effect;
(j) each of the employees of the Sellers identified on Exhibit 16 (the "Key Employees") shall have entered into an employment agreement with the Purchaser or Purchasing Affiliate on terms satisfactory to the Purchaser and the respective Key Employee (the "Executive Employment Agreements");
(k) the Sellers shall have delivered to the Purchaser opinions of counsel licensed in each of the respective jurisdictions of organization of the Sellers, dated as of the date Closing Date, substantially in the form of Exhibit 17 hereto;
(l) the Parent Agreements designated by the Purchaser shall have been terminated and the parties thereto shall have been released from all obligations thereunder and the Sellers shall have delivered to the Purchaser evidence satisfactory to the Purchaser of such termination and release;
(m) the Patent and Know-How License Agreement shall have been amended in a manner satisfactory to the Purchaser and Parent;
(n) the Sellers shall have delivered to the Purchaser such certificates of their officers to evidence compliance with the conditions set forth in this Article VII as may be reasonably be requested by the Purchaser;
(o) the Purchaser shall have received from the Sellers resolutions adopted by the directors of the Sellers, or other evidence satisfactory to the Purchaser, evidencing the approval of this Agreement and the date of the Closing (except those representations Ancillary Agreements 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit and thereby, certified by the Investor from owning or voting any authorized representatives of the Investor SharesSellers;
(2p) Parent US Sub shall have delivered to the purchase by the Investor Purchaser a non-foreign affidavit pursuant to Section 1445(b)(2) of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Code; and
(3q) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Parent shall have been satisfied or waivedobtained the Parent Board Approval.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ocular Sciences Inc /De/)
Conditions. (a) The obligation of the Investor The Chicago Corporation to consummate act as Placement Agent pursuant to Section 1 hereunder and the Closing shall be subject to the condition that all accuracy of the representations and warranties and other statements on the part of the Company shall be true and correct herein set forth as of the date of this Agreement hereof and the date as of the Closing (except those representations and warranties that by their terms speak specifically as Date, to the accuracy of the date statements of this Agreement or some other date shall be true and correct as officers of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all made pursuant to the provisions hereof, to the performance by the Company and of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); hereunder, and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1a) The Registration Statement shall have been declared effective by the Commission; no provision stop order suspending the effectiveness of any applicable law or regulation the Registration Statement shall have been issued and no judgmentproceedings for that purpose shall have been instituted or shall be pending or, injunction, order or decree shall prohibit to the transactions contemplated hereby or prohibit the Investor from owning or voting any knowledge of the Investor Shares;Company or you, shall be contemplated by the Commission.
(2b) the purchase by the Investor The legality and sufficiency of the Investor authorization, issuance and sale or transfer and sale of the Shares hereunder, the validity and form of the certificates representing the Shares, the execution and delivery of this Agreement, and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement and the Prospectus (except financial statements) shall have been approved by your special counsel.
(c) You shall not have advised the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact, which, in the opinion of your special counsel, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(d) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries, whether or not arising in the ordinary course of business, which, in the judgment of the Placement Agent, makes it impractical or inadvisable to proceed with the offering of the Shares as contemplated hereby.
(e) You shall have received from ▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Company, an opinion of counsel substantially in the form attached hereto as Exhibit B.
(f) A certificate of the chief executive officer and the chief financial officer of the Company, dated the Closing Date, to the effect that (i) require each signer of such certificate has examined the Investor Registration Statement and the Prospectus and (A) as of the date of such certificate, such documents are true and correct in all material respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (B) since the date of this Agreement no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulatormaterial respect; (ii) require each of the Investor or any representations and warranties of its affiliates to become a bank holding companythe Company contained in this Agreement were, when originally made, and are, at the time such certificate is dated true and correct; or (iii) cause each of the Investorcovenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, together timely and fully performed, and each condition herein required to be complied with by the Company on or prior to the date of such certificate has been duly, timely and fully complied with; and (iv) the Commission has not issued an order preventing or suspending the use of the Prospectus or any other person whose securities preliminary prospectus filed as a part of the Registration Statement or any amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the best knowledge of the respective signers, no proceedings for that purpose have been instituted or are pending or contemplated under the Act. The delivery of the certificate provided for in this subparagraph shall be and constitute a representation and warranty of the Company would as to the facts required in the immediately foregoing clauses (i) through (iv) of this subparagraph to be aggregated with set forth in such certificate.
(g) At the Investor’s securities of time the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor Registration Statement is declared effective and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding also on the Closing Date, there shall be delivered to you a letter addressed to you, as Placement Agent, from Ernst & Young LLP, independent accountants, the first one to be dated the effective date of the Registration Statement and the second one to be dated the Closing (after giving effect Date, to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions effect set forth in Section 10 Exhibit C. There shall not have been any change or decrease specified in the letters referred to in this subparagraph which makes it impractical or inadvisable in the judgment of the Branch Purchase AgreementPlacement Agent to proceed with the offering of the Shares as contemplated hereby.
(h) At the time the Registration Statement is declared effective and also on the Closing Date, other than there shall be delivered to you a letter addressed to you, as Placement Agent, from ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, S.C., independent accountants, the condition first one to be dated the effective date of the Registration Statement and the second one to be dated the Closing Date, to the effect set forth in Exhibit D.
(i) At the time the Registration Statement is declared effective and also on the Closing Date, there shall be delivered to you a letter addressed to you, as Placement Agent, from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, independent accountants, the first one to be dated the effective date of the Registration Statement and the second one to be dated the Closing Date, to the effect set forth in Exhibit E.
(j) The fees and out-of-pocket expenses payable by the Company pursuant to Section 10.3(e4(g) of the Branch Purchase Agreement with respect this Agreement, shall have been paid in full, to the Company’s acceptance extent that the Company shall have received an invoice therefor at any time prior to the Closing Date.
(k) All conditions to the closing of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall Chesapeake Acquisition have been satisfied or waived, and the Company and Chesapeake shall have notified you that they intend to complete the closing of the Chesapeake Acquisition on the Closing Date concurrently with or immediately after the Closing of the sale of the Shares pursuant to this Agreement.
(l) Such further certificates and documents as you may reasonably request.
(m) The Escrow Agent shall have received Funds from prospective investors for the purchase of all of the Shares. All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are satisfactory to you and to ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, special counsel to the Placement Agent, which approval shall not be unreasonably withheld. The Company shall furnish you with such manually signed or conformed copies of such opinions, certificates, letters and documents as you request. If any of the conditions specified in this Section shall not have been fulfilled when and as required by this Agreement, the Placement Agent shall have no obligation to transfer any funds representing the purchase price for the Shares to the Company and may, in its sole discretion, return any such funds to prospective Investors in the Offering. Any such return of funds to prospective Investors shall be without liability of the Placement Agent to the Company or to any shareholder, officer, director, employee or creditor of the Company. Notice of such return of funds to prospective Investors shall be given to the Company in writing, or by telegraph or telephone and confirmed in writing.
Appears in 1 contract
Conditions. (a) The obligation obligations of the Investor each party to consummate the Stock Purchase and to effectuate the Closing shall be are subject to the condition that all satisfaction or waiver of the following conditions at the time of the Closing:
(i) no judgment, order, injunction or decree (“Judgment”) issued by any United States federal, state, local or other government, or any United States court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality (a “Governmental Entity”) of competent jurisdiction or statute, law, rule or regulation (“Law”) or other legal prohibition (collectively, “Legal Restraints”) prohibiting the consummation of the Stock Purchase shall be in effect;
(ii) this Agreement shall not have been terminated in accordance with its terms; and
(iii) the waiting period (and any extension thereof) under the HSR Act (as defined in Section 2.02(b)) in respect of the Stock Purchase shall have lapsed or been terminated.
(b) Theobligations of the Buyer to consummate the Stock Purchase and to effectuate the Closing are subject to the satisfaction or waiver of the following conditions at the time of the Closing:
(i) the representations and warranties and other statements of the Company each Seller set forth in Article II shall be true and correct as of the date of this Agreement hereof and the date as of the Closing Closing, except to the extent any such representation and warranty expressly relates to a specified date (except those in which case on and as of such specified date), and (other than the representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date set forth in Section 2.03, which shall be true and correct as of in all respects at such date), time and at the Closing) except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not havenot, individually or in the aggregate, a Material Adverse Effect; prevent, materially delay or materially impede the condition that the Company Closing;
(ii) each Seller shall have performed in all material respects all of its obligations hereunder theretofore to be performed by it as of such time under this Agreement;
(without giving iii) the Buyer shall have received a certificate from each of the Sellers, signed on behalf of each of the Sellers by their respective authorized signatory, to the effect to any qualification as to materiality or Material Adverse Effect contained therein)that the conditions set forth in Section 1.03(b)(i) and Section 1.03(b)(ii) have been satisfied; and
(iv) the Buyer shall have received executed copies of IRS Form W-9 certifying that each Seller is exempt from U.S. federal backup withholding tax and the condition affidavit of each Seller that since such Seller is not a “foreign person” within the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) meaning of Section 1445 of the Company or (y) United States Internal Revenue Code of 1986, as amended, in substantially the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.form of Exhibit B.
(bc) The obligation obligations of the Company each Seller to consummate the Stock Purchase and to effectuate the Closing shall be are subject to the condition that all satisfaction or waiver of the following conditions at the time of the Closing
(i) the representations and warranties and other statements of the Investor Buyer set forth in Article III shall be true and correct as of the date of this Agreement hereof and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the Closing, except to the extent any such representation and warranty expressly relates to a specified date of this Agreement or some other date shall be true (in which case on and correct as of such specified date); , and except as would not, individually or in the condition that aggregate, prevent, materially delay or materially impede the Investor Closing;
(ii) the Buyer shall have performed in all of its material respects all obligations hereunder theretofore to be performed.
(c) The obligation performed by it as of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharessuch time under this Agreement;
(2iii) the purchase Sellers shall have received a certificate from the Buyer, executed by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or lawauthorized signatory, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) that the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in 1.03(c)(i) and Section 10.3(e1.03(c)(ii) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedsatisfied.
Appears in 1 contract
Conditions. (a) The obligation of the Investor to consummate the Closing shall be subject Conditions Precedent to the condition that all representations and warranties and other statements Obligation of the Company shall be true and correct as of to Sell the date of this Agreement and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) Assets. The obligation of the Company to consummate sell the Closing shall be Assets hereunder is subject to the condition that all representations reliance and warranties and other statements of satisfaction or waiver (with prior written notice to Purchaser) by the Investor shall be true and correct as of Company, at or before the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation Closing, of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any Accuracy of the Investor SharesPurchasers' Representations and Warranties. The representations and warranties of each Purchaser in this Agreement shall be true and correct in all material respects as of the date when made and as of the Closing Date;
(2) the purchase Performance by the Investor of the Investor Shares Purchasers. Purchaser shall not (i) require the Investor have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or any of its affiliates to file a complied with by such Purchaser at or prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Closing; and
(3) No Injunction. 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 which prohibits the conditions consummation of any of the transactions contemplated by this Agreement or the Transaction Documents.
(b) Conditions Precedent to the Obligation of the Purchaser to Purchase the Assets. The obligation of Purchaser hereunder to acquire and pay for the Assets is subject to the satisfaction or waiver by such Purchaser, at or before the Closing, of each of the following conditions:
(1) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company set forth in Section 10 this Agreement and in the Registration Rights Agreement shall be true and correct in all respects as of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) date when made and as of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.Closing Date;
Appears in 1 contract
Conditions. The obligations of the Initial Purchaser to purchase the Notes under this Agreement are subject to the satisfaction of each of the following conditions or waiver thereof by the Initial Purchaser:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company contained in this Agreement and in each of the Documents and the Perfection Certificate shall be true and correct as of the date of this Agreement hereof and at the date Closing Date. On or prior to the Closing Date, the Company and each other party to the Documents (other than the Initial Purchaser) shall have performed or complied with all of the Closing (except those representations agreements and warranties that by satisfied all conditions on 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 for such failures respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as satisfy would not havenot, individually or in the aggregate, have a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company to consummate the Closing shall after due inquiry, be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct pending or contemplated as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) The obligation of each No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Investor and Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding shall be pending or, to the knowledge of the Company after due inquiry, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would not, individually or in the aggregate, have a Material Adverse Effect.
(d) Subsequent to consummate the respective dates as of which data and information are given in the Final Offering Circular, there shall not have been any Material Adverse Change.
(e) The Notes shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL market.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(g) The proceeds of the Offering will be used in the manner described in the Final Offering Circular under the caption "Use of Proceeds."
(h) The Initial Purchaser shall have received on the Closing shall be subject to the following additional conditionsDate:
(i) certificates dated the Closing Date, signed by (1) no provision of any applicable law the Chairman or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any Vice Chairman of the Investor Shares;
Company and (2) the purchase by the Investor principal financial or accounting officer of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActCompany, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities on behalf of the Company would be aggregated Company, to the effect that (a) the representations and warranties set forth in Section 4 hereof are true and correct in all material respects with the Investor’s securities same force and effect as though expressly made at and as of the Company for purposes of any bank regulation or lawClosing Date, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other personsb) would represent more than 9.9% of any class of voting securities of the Company outstanding has complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date hereof or since the date of the Closing most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after giving effect to the purchase date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (d) since the date of the Investor Shares contemplated herebymost recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than as described in the Final Offering Circular or contemplated hereby, the Company has not incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition set forth in Section 10.3(e(financial or otherwise) or results of operations or prospects of the Branch Purchase Agreement Company, and there has not been any change in the Capital Stock or long-term indebtedness of the Company that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company, and (e) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company, certifying such matters as the Initial Purchaser may reasonably request.
(iii) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in the form previously approved by the Initial Purchaser.
(iv) the opinion of ▇▇▇▇▇▇ Beach LLP, counsel to the Company, dated the Closing Date, substantially in the form of Exhibit A attached hereto.
(v) an opinion, dated the Closing Date, of ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & Maw LLP, counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(i) The Initial Purchaser shall have received from PricewaterhouseCoopers LLP, independent auditors, with respect to the Company’s acceptance , (A) a customary comfort letter, dated the date of the proceeds Final Offering Circular, in form and substance reasonably satisfactory to the Initial Purchaser, with respect to the financial statements and certain financial information contained in the Final Offering Circular, and (B) a customary "bring down" comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that PricewaterhouseCoopers LLP reaffirms the statements made in its letter furnished pursuant to clause (A) above.
(j) Each of the Acceptable Financing (as defined in the Branch Purchase Agreement), Documents shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of each Document.
(k) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any transaction contemplated in the Documents.
(l) The Initial Purchaser shall have received the Final Offering Circular, and the terms of each Document shall conform in all material respects to the description thereof in the Final Offering Circular.
(m) None of the parties to any of the Documents shall be in breach or default of any of their respective obligations in any material respect.
(n) The Collateral Agent shall have received (with a copy for the Initial Purchaser) on the Closing Date:
(i) appropriately completed copies of Uniform Commercial Code financing statements naming the Company as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Security Agreement;
(ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any Security Agreement previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Agreement, other than such financing statements that evidence Permitted Liens);
(iv) such other approvals, opinions, or documents as the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Collateral Agent; and
(v) the Collateral Agent and its counsel shall be satisfied that (i) the Lien granted to the Collateral Agent, for the benefit of the Secured Parties in the collateral described above is of the priority described in the Final Offering Circular; and (ii) no Lien exists on any of the collateral described above other than the Lien created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement, in each case subject to the Permitted Liens.
(o) All Financing Statements or waivedother similar financing statements and Uniform Commercial Code Form UCC-3 termination statements required pursuant to clause (o)(i) and (ii) above (collectively, the "Filing Statements") shall have been delivered to CT Corporation System or another similar filing service company acceptable to the Collateral Agent (the "Filing Agent"). The Filing Agent shall have acknowledged in a writing reasonably satisfactory to the Collateral Agent and its counsel (i) the Filing Agent's receipt of all Filing Statements, (ii) that the Filing Statements have either been submitted for filing in the appropriate filing offices or will be submitted for filing in the appropriate offices within ten days following the Closing Date and (iii) that the Filing Agent will notify the Collateral Agent and its counsel of the results of such submissions within 30 days following the Closing Date.
(p) The Initial Purchaser shall have received prior to or contemporaneously with the Closing a payoff letter from the lender or agent under the Company's existing secured credit facility in form and substance satisfactory to the Initial Purchaser.
(q) The Company shall have delivered the following documents and instruments with regard to each Premises prior to or contemporaneously with the Closing:
(i) to the Collateral Agent, as mortgagee, fully executed counterparts of Mortgages, each dated as of the Closing Date, duly executed by the Company, together with evidence of the completion (or satisfactory arrangements for the completion), of all recordings and filings of such Mortgage as may be necessary to create a valid, perfected Lien, subject to Permitted Liens, against the properties to be covered thereby;
(ii) to the Collateral Agent, mortgagee's title insurance policies in favor of the Collateral Agent, as mortgagee for the ratable benefit of the Collateral Agent and the Secured Parties, in amounts and in form and substance and issued by insurers reasonably acceptable to the Collateral Agent, with respect to the property purported to be covered by such Mortgages, insuring that title to such property is marketable and that the interests created by the Mortgages constitute valid Liens thereon free and clear of all Liens, defects and encumbrances other than Permitted Liens, and such policies shall also include, to the extent available, a revolving credit endorsement and such other endorsements as the Collateral Agent shall reasonably request and shall be accompanied by evidence of the payment in full of all premiums thereon;
(iii) to the Collateral Agent, with respect to each of the covered Premises, the most recent survey of such Premises, together with either (A) an updated survey certification in favor of the Trustee and the Collateral Agent from the applicable surveyor stating that, based on a visual inspection of the property and the knowledge of the surveyor, there has been no change in the facts depicted in the survey or (B) an affidavit from the Company stating that there has been no change, other than, in each case, changes that do not materially adversely affect the use by the Company of such Premises for the Company's business as so conducted, or intended to be conducted, at such Premises; and
(iv) to the Collateral Agent, with respect to each Premises that is the subject of such Mortgages, such filings, surveys, local counsel opinions and fixture filings, along with such other documents, instruments, certificates and agreements, as the Collateral Agent and its counsel shall reasonably request or that are required to be delivered pursuant to the Indenture.
(r) The Initial Purchaser shall have received prior to or contemporaneously with the Closing executed Acknowledgments of Liens for each of the Company's Salt Handling and Storage Agreements in form and substance satisfactory to the Initial Purchaser.
(s) The Initial Purchaser shall have received prior to or contemporaneously with the Closing an executed Landlord Consent from Retsof Realty LLC and the principals of Retsof Realty LLC in favor of the Secured Parties confirming that the Secured Parties or their assignees will be entitled to receive a long term lease of the "▇▇▇▇▇▇ Plant Site" in Retsof, NY on the same financial terms as the existing lease for such premises in form and substance satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions. (a) 4.1 The obligation obligations of Parent and the Investor to consummate the Subscription Closing shall be are subject to the condition satisfaction or waiver of the following conditions: (a) occurrence of the Acceptance Time, (b) the receipt by the Investor of its portion of the Offer Consideration for each of its Company Shares validly tendered by the Investor and not withdrawn pursuant to the Offer prior to the Acceptance Time, (c) no Law having been enacted, entered, issued or promulgated (and remaining in effect) by any Governmental Authority that all prohibits, restricts or impedes the consummation of the Subscription Closing and (d) the Investor and its Affiliates shall have received any required approval under the outbound direct investment Laws of the People’s Republic of China (“ODI Approval”) in connection with the transactions contemplated hereby.
4.2 The obligations of Parent to consummate the Subscription Closing are subject to the satisfaction or waiver of the following conditions: (a) the representations and warranties and other statements of the Company Investor set forth in this Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality, which representations and warranties shall be true and correct in all respects) as of the date of this Agreement and the date as of the Subscription Closing Date with the same effect as though made on and as of such date (except those to the extent expressly made as of an earlier date, in which case as of such earlier date), (b) Investor shall have complied with or performed in all material respects its obligations and covenants required to be complied with or performed by it pursuant to this Agreement at or prior to the Subscription Closing and (c) there shall be no action, lawsuit, arbitration, claim or proceeding pending that seeks to enjoin, restrict or impede the consummation of this Agreement.
4.3 The obligations of the Investor to consummate the Subscription Closing are subject to the satisfaction or waiver of the following conditions: (a) the representations and warranties that by their terms speak specifically as of the date of Parent set forth in this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all other than representations and warranties that are qualified as to materiality, which representations and other statements of the Investor warranties shall be true and correct in all respects) as of the date of this Agreement and the date as of the Subscription Closing Date with the same effect as though made on and as of such date (except those representations and warranties that by their terms speak specifically to the extent expressly made as of an earlier date, in which case as of such earlier date), (b) Parent shall have complied with or performed in all material respects its obligations and covenants required to be complied with or performed by it pursuant to this Agreement at or prior to the Subscription Closing, (c) for the period from and including the date of this Agreement or some other date through and including such date, there shall not have not occurred any Material Adverse Change, (d) there shall be true no action, lawsuit, arbitration, claim or proceeding pending that seeks to enjoin, restrict or impede the consummation of this Agreement and correct as of such date); and (e) the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing Subscription Securities shall be approved for listing, subject to the following additional conditions:
(1) no provision official notice of any applicable law or regulation and no judgmentissuance, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedNew York Stock Exchange.
Appears in 1 contract
Conditions. (a) 7.1 Conditions to Each Party's Obligation To Effect the Merger. ---------------------------------------------------------- The obligation respective obligations of each party to effect the Investor to consummate the Closing shall Merger will be subject to the condition that all representations and warranties and other statements fulfillment at or prior to the Closing Date of the Company shall be true and correct as of the date of this following conditions:
(a) This Agreement and the date transactions contemplated hereby shall have been approved in the manner required by applicable law by the holders of the Closing (except those representations issued and warranties that by their terms speak specifically as outstanding shares of capital stock of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase AgreementCompany.
(b) The obligation waiting period applicable to the consummation of the Company to consummate Merger under the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor HSR Act shall have performed all of its obligations hereunder theretofore to be performedexpired or been terminated.
(c) The obligation of each Neither of the Investor and the Company to consummate the Closing parties hereto shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit injunction of a court of competent jurisdiction which prohibits the consummation of the transactions contemplated hereby by this Agreement. In the event any such order or prohibit injunction shall have been issued, each party agrees to use its reasonable best efforts to have any such injunction lifted.
(d) The Form S-4 shall have become effective and shall be effective at the Investor from owning or voting any Effective Time, and no stop order suspending effectiveness of the Investor Shares;Form S-4 shall have been issued, no action, suit, proceeding or investigation by the SEC to suspend the effectiveness thereof shall have been initiated and be continuing or, to the knowledge of Parent or the Company, be threatened in writing, and all necessary approvals under state securities laws relating to the issuance or trading of Parent Common Shares to be issued to the Company stockholders in connection with the Merger shall have been received.
(2e) All consents, authorizations, orders and approvals of (or filings or registrations with) any Governmental Entity required in connection with the purchase by execution, delivery and performance of this Agreement shall have been obtained or made, except for filings in connection with the Investor Merger and any other documents required to be filed after the Effective Time and except where the failure to have obtained or made any such consent, authorization, order, approval, filing or registration would not have a material adverse effect on the business, financial condition or results of operations of the Investor Surviving Corporation following the Effective Time.
(f) Parent Common Shares to be issued to the Company's stockholders in connection with the Merger shall not have been approved for listing on the NASDAQ, subject only to official notice of issuance.
(g) Each of Parent and the Company shall have received letters, (i) require dated as of the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; date hereof and (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities dated as of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or lawEffective Time, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect from their respective independent public accountants to the purchase effect that the Merger will qualify for "pooling of the Investor Shares contemplated hereby); and
(3) the conditions set forth interests" accounting treatment under Accounting Principles Board Opinion No. 16 if consummated in Section 10 of the Branch Purchase accordance with this Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 1 contract
Conditions. (a) The obligation of Purchaser under this Agreement to purchase the Investor to consummate the Closing shall be Property from Seller is subject to the condition that all satisfaction of each of the following conditions (any of which may be waived in whole or in part by Purchaser in writing on or prior to the Closing Date):
(i) Title to the Property shall be good and marketable, and subject to no liens, encumbrances, leases, licenses, rights of occupancy, security interests, restrictions, rights- of-way, easements or encroachments (collectively “Exceptions”) other than the Permitted Exceptions. Purchaser’s title insurance company shall be prepared to issue, at its standard premium rates, a title insurance policy insuring the title to the Property, subject only to the Permitted Exceptions, in the amount of the Purchase Price.
(ii) As of the Closing Date, (A) Seller’s representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement in all material respects, and the date of the Closing (except those 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 for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinB) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company Seller shall have performed in all material respects all of its other obligations hereunder theretofore to be performed under this Agreement.
(without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect iii) Purchaser shall have occurred and be continuing received from Seller evidence satisfactory to Purchaser that the lease with respect Greyhound Lines, Inc. has been terminated. In the event that any of the foregoing conditions to Closing have not been met or waived in writing by Purchaser on or before the Closing Date, Purchaser shall have the right to either (xi) extend the Company date for Closing until such conditions are satisfied, up to a maximum of ninety (90) days, or (yii) terminate this Agreement by written notice to Seller. In the Company after giving effect event of such termination, thereafter, this Agreement shall be deemed terminated and neither party shall have any further obligation to the transactions contemplated other (except as otherwise expressly provided in this Agreement). Further, so long as Seller is not in default of this Agreement, in the event Purchaser terminates this Agreement, Purchaser shall provide to Seller a copy of all environmental and engineering reports prepared by Purchaser or the Branch Purchase AgreementPurchaser Parties.
(b) The obligation of Seller under this Agreement to sell the Company Property to consummate the Closing shall be Purchaser is subject to the condition that all representations and warranties and other statements satisfaction of each of the Investor following conditions (any of which may be waived in whole or in part by Seller in writing on or prior to the Closing Date):
(i) All representations, warranties, acknowledgments and covenants made by Purchaser in this Agreement shall be true and correct as of the date of this Agreement in all material respects, and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall continue to be true and correct in all material respects as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedClosing Date.
(cii) The obligation of each of the Investor and the Company to consummate the Closing No laws, statutes, ordinances, governmental orders, regulations, rules or requirements shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgmenthave been enacted, injunctionadopted, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, issued or otherwise seek prior approval promulgated by a governmental entity or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, agency other than the condition set forth in Section 10.3(e) City that would prevent the use and development of the Branch Purchase Agreement Property in accordance with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase this Agreement), shall have been satisfied or waived.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Conditions. (a) The obligation of the Investor Purchasers to consummate purchase the Closing shall be Series A Notes under this Agreement is subject to the condition that all satisfaction or waiver of each of the following conditions:
(i) All the representations and warranties and other statements of the Company Issuer in this Agreement shall be true and correct in all material respects (other than representations and warranties with a materiality qualifier, which shall be true and correct as of the date of this Agreement written) at and the date as of the Closing (except those representations Date after giving effect to the Transactions with the same force and warranties that by their terms speak specifically effect as if made on and as of such date. On or prior to the Closing Date, the Issuer shall have performed or complied in all material respects with all of the agreements and satisfied in all material respects all conditions on its part to be performed, complied with or satisfied pursuant to the Documents; and nothing shall have come to the attention of the Issuer to lead it to believe that any other party to the Documents (other than the Purchasers) has not performed or complied in all material respects with all of the agreements and satisfied in all material respects all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents.
(ii) The Offering Circular shall have been printed and copies made available to the Purchasers not later than 12:00 noon, New York City time, on the first business day following the date of this Agreement or some other at such later date and time as the Purchasers may approve.
(iii) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or interfere with the issuance and sale of the Series A Notes; and no stop order suspending the qualification or exemption from qualification of any of the Series A Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or be pending or contemplated as of the Closing Date.
(iv) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the issuance or sale of the Series A Notes. No Proceeding shall be true and correct as of such date)pending or threatened other than Proceedings that (A) if adversely determined could not, except for such failures to be so true and correct (without giving effect to any qualification as to materiality singly or Material Adverse Effect contained therein) as would not have, individually in the aggregate, adversely affect the issuance or marketability of the Series A Notes or (B) could not reasonably be expected to have a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(bv) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor Notes shall have performed all (A) been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the PORTAL market, and (B) received a rating of its obligations hereunder theretofore to be performedB+ and B1 from Standard & Poor's Corporation and Mood▇'▇ ▇▇▇estors Services, Inc., respectively.
(cvi) The obligation of each of the Investor and the Company to consummate Purchasers shall have received on the Closing shall be subject to Date (A) certificates dated the following additional conditions:
Closing Date, signed by (1) no provision of any applicable law or regulation the Chief Executive Officer and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor principal financial or accounting officer of the Investor Shares shall not Issuer, on behalf of the Issuer, (x) confirming the matters set forth in paragraphs (i) require through (iv) of this Section 9(a) and (y) certifying as to such other matters as the Investor or any of its affiliates to file Purchasers may reasonably request, (B) a prior notice under certificate, dated the Change in Bank Control ActClosing Date, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require signed by the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities Secretary of the Company would be aggregated with Issuer, certifying such matters as the Investor’s securities Purchasers may reasonably request and (C) a certificate, dated the Closing Date, signed by the principal financial or accounting officer of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have Issuer substantially in the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities form previously approved by the Investor and such other personsPurchasers.
(vii) would represent more than 9.9% of any class of voting securities of the Company outstanding The Purchasers shall have received on the date of Closing Date an opinion and a letter (each reasonably satisfactory in form and substance to the Purchasers and counsel to the Purchasers), dated the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase AgreementDate, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.of
Appears in 1 contract
Conditions. Notwithstanding any other provision, as a condition precedent to each Closing (a) The obligation defined below), all of the Investor following conditions must be satisfied:
1. All documents, instruments and other writings required to consummate be delivered by Company to Purchaser pursuant to any provision of this Agreement or in order to implement and effect the Closing shall be subject transactions contemplated herein have been fully executed and delivered, including without limitation those enumerated in Section II.B above;
2. The Common Stock is listed for and currently trading on the Trading Market, Company is in compliance with all requirements to maintain listing on the Trading Market, and there is no notice of any suspension or delisting with respect to the condition that all representations and warranties and other statements trading of the shares of Common Stock on such Trading Market (other than with respect to such notices and matters as have been publicly disclosed by the Company shall be true and correct as of prior to the date of this Agreement and the date of the Closing (except those Agreement);
3. The representations and warranties that by their terms speak specifically as of the date of Company set forth in this Agreement or some other date shall be are true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all as if made on such date;
4. No material breach or default has occurred under any Transaction Document or any other agreement with Purchaser; and
5. There is not then in effect any law, rule or regulation prohibiting or restricting the transactions contemplated in any Transaction Document, or requiring any consent or approval which will not have been obtained, nor is there any pending or threatened proceeding or investigation which may have the effect of its obligations hereunder theretofore to be performed (without giving effect to prohibiting or adversely affecting any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to of the transactions contemplated by this Agreement; no statute, rule, regulation, executive order, decree, ruling or injunction will have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits the Branch Purchase transactions contemplated by this Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation , and no judgmentactions, injunctionsuits or proceedings will be in progress, order pending or, to Company’s knowledge threatened, by any person other than Purchaser or decree shall any Affiliate of Purchaser, that seek to enjoin or prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ascent Solar Technologies, Inc.)
Conditions. The obligations of the Initial Purchasers to purchase the Regulation S Notes under this Agreement are subject to the performance by each of the Company Parties of their respective covenants and obligations hereunder and the satisfaction of each of the following conditions:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company Parties contained in this Agreement and in each of the Regulation S Purchase Documents shall be true and correct as of the date of this Agreement hereof and at the date Closing Date. On or prior to the Closing Date, the Company and each other party to the Regulation S Purchase Documents (other than the Initial Purchasers) shall have performed or complied with all of the Closing (except those representations agreements and warranties that by satisfied all conditions on 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 for such failures respective parts to be performed, complied with or satisfied pursuant to the Regulation S Purchase Documents (other than conditions to be satisfied by such other parties, which the failure to so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as satisfy would not havenot, individually or in the aggregate, have a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority of the Company to consummate the Closing shall be subject to the condition competent jurisdiction that all representations and warranties and other statements of the Investor shall be true and correct would, as of the date Closing Date, render impossible the issuance or sale of this Agreement the Regulation S Notes; and the date no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing (except those representations and warranties that by their terms speak specifically as Date, prevent the issuance or sale of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedRegulation S Notes.
(c) No Proceeding shall be pending or, to the knowledge of the Company after due inquiry, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Regulation S Notes that are the subject of this Agreement, and (B) would not, individually or in the aggregate, have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Time of Sale Document and the CIM, there shall not have been any Material Adverse Change.
(e) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Regulation S Notes than that on which the Regulation S Notes were marketed.
(f) The obligation Initial Purchasers shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (1) the Chief Executive Officer and (2) the principal financial or accounting officer of the Company, on behalf of the Company, to the effect that (a) the representations and warranties set forth in Section 3 hereof, in each of the Regulation S Purchase Documents are true and correct with the same force and effect as though expressly made at and as of the Closing Date, (b) the Company Parties have performed and complied with all agreements and satisfied all conditions in all material respects on their part to be performed or satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Time of Sale Document and the CIM (exclusive of any amendment or supplement thereto after the date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Time of Sale Document and the CIM (exclusive of any amendment or supplement thereto after the date hereof), other than as described in the Time of Sale Document and the CIM or contemplated hereby, neither the Company nor any Subsidiary of the Company has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company and the Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company or any Subsidiary of the Company that is material to the business, condition (financial or otherwise) or results of operations of the Company and the Subsidiaries, taken as a whole, and (e) the sale of the Regulation S Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company and each Guarantor, certifying such matters as the Initial Purchasers may reasonably request.
(iii) The Company Parties shall have each delivered to the Purchasers or the Closing Agent (on behalf of the Purchasers) a certificate evidencing qualification by such entity as a foreign corporation and good standing issued by the Secretaries of State (or comparable office) of each of the Investor and jurisdictions in which the Company Parties operate as of a date within 30 days prior to consummate the Closing shall be subject Date.
(iv) the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, U.S. counsel to the following additional conditions:
(1) no provision of any applicable law or regulation Company and no judgmentSubsidiary Guarantors, injunctionand ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Bailhache, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change Bermuda counsel for Parent, in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date each case dated as of the Closing (after giving effect Date, substantially to the purchase of the Investor Shares contemplated hereby)effect set forth on Exhibit B; and
(3v) an opinion, dated the Closing Date, of ▇▇▇▇▇ Day, counsel to the Initial Purchasers, in form satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(g) The terms of each Transaction Document shall conform in all material respects to the description thereof in the Time of Sale Document and the CIM. Each of the Company Parties shall have executed and delivered, or caused to be delivered, to the Purchasers or the Closing Agent (i) each of the Transaction Documents to which it is a party and (ii) the Regulation S Notes being purchased by the Initial Purchasers at the Closing pursuant to this Agreement, in each case in form and substance reasonably satisfactory to the Initial Purchasers.
(h) All conditions set forth in Section 10 to closing of each of the Branch Purchase AgreementTransaction Documents shall be satisfied or, other than where applicable, waived; and the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Transactions shall have been satisfied consummated in accordance with their terms and in accordance with the applicable Transaction Documents and as described in the Preliminary CIM and as described or waivedto be described in the CIM.
(i) At least $750.00 million in aggregate principal amount of Notes shall have been sold by the Company to the Regulation D Purchasers and Initial Purchasers and an amount shall have been borrowed by the Company under the Credit Agreement sufficient to repay all outstanding borrowings under the Amended and Restated Second Lien Credit Agreement, dated as of July 28, 2006 among the Company, various lenders named therein, BNP Paribas, and RBS Securities Corporation (the “Second Lien Facility”).
(j) The Regulation S Notes shall have been designated for trading on PORTAL, to the extent so eligible, and shall be eligible for clearance and settlement through DTC.
Appears in 1 contract
Conditions. (a) The obligation of Lender to be bound by the Investor to consummate the Closing provisions of this Amendment shall be subject to the condition that all representations and warranties and other statements fulfillment of the Company following conditions precedent on or before the date hereof:
(a) Lender shall have received all of the following, each in form and substance satisfactory to Lender, in its sole discretion, and each duly executed by each party thereto, other than Lender:
(i) This Amendment;
(ii) Second Amendment to Sale and Participation Agreement, dated on or about the date hereof, executed by The CIT Group/Business Credit, Inc. ("CIT Group") (the "Second Amendment to Participation Agreement");
(iii) Modifications to such existing real estate lien documents as shall be true and correct as of the date of this Agreement and the date of the Closing required by Lender, duly executed by Borrower; and
(except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some iv) All other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect documents Lender may request with respect to any qualification as matter relevant to materiality this Amendment or Material Adverse Effect contained thereinthe transactions contemplated hereby.
(b) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all No Event of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect Default shall have occurred and be continuing with respect to either (x) the Company and no Default shall exist, unless such Event of Default or (y) the Company after giving effect to the transactions contemplated Default has been specifically waived in writing by the Branch Purchase AgreementLender.
(bc) Borrower shall have performed and complied with all agreements and conditions contained in the Agreement and the other Agreements which are required to be performed or complied with by Borrower before or on the date hereof.
(d) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties contained in the Agreement, as amended hereby, and the other statements of the Investor Agreements shall be true and correct in all material respects as of the date hereof, with the same force and effect as though made on and as of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(ce) The obligation No material adverse change shall have occurred in the business operations, financial condition or prospects of each of the Investor Borrower, and the Company to consummate the Closing no material adverse litigation shall be subject pending or, to the following additional conditions:knowledge of Borrower, threatened, against Borrower.
(1f) no provision of any applicable law or regulation All corporate and no judgmentlegal proceedings and all documents required to be completed and executed by the provisions of, injunction, order or decree shall prohibit and all instruments to be executed in connection with the transactions contemplated hereby or prohibit the Investor from owning or voting by, this Amendment and any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares related agreements shall not (i) require the Investor or any of its affiliates be satisfactory in form and substance to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedLender.
Appears in 1 contract
Sources: Loan and Security Agreement (Red Man Pipe & Supply Co)
Conditions. (a) The A. In addition to Purchaser’s absolute right to terminate this Agreement for any reason at any time during the Review Period, the obligation of Purchaser under this Agreement to purchase the Investor to consummate the Closing shall be Property from Seller is subject to the condition that satisfaction of each of the following conditions on or prior to the Closing Date, any of which conditions may be waived in whole or in part by Purchaser by written waiver at or prior to the Closing Date:
1. Title to the Real Property shall be good and marketable as required herein, free and clear of all liens, encumbrances and exceptions other than the Permitted Exceptions and the Escrow Agent shall be prepared to issue an owner’s title insurance policy pursuant to the Title Commitment insuring the title to the Real Property, subject only to the Permitted Exceptions, in the amount of the Purchase Price or such lesser amount as Purchaser, in its sole discretion, shall determine and with such endorsements which the Escrow Agent, prior to the end of the Review Period, shall have committed to issue upon payment of the appropriate premium therefor and no material change thereto shall have occurred prior to Closing. Seller shall discharge all liens against the Property at Closing other than the Mortgage which is to be assumed by Purchaser and other Permitted Exceptions.
2. Seller shall have performed, observed and complied with all material covenants, agreements and conditions required by this Agreement to be performed by, observed and complied with on its part either on or prior to the Closing Date.
3. All of Seller’s representations and warranties and other statements of the Company contained herein shall be true and correct in all material respects as of the Closing Date, and Seller will deliver to Purchaser at Closing a certificate to that effect (or disclosing any representations or warranties which are no longer true and accurate); provided that it shall be a condition to Purchaser’s obligation to proceed to the Closing that there shall not be any material change in such representations or warranties set forth in such certificate.
4. The physical condition of the Property and the title for the Property shall not have materially changed since the conclusion of the Review Period.
5. All tenants of the Leases shall be occupying the Property, and none of them shall be in default in the payment of rent or performance of any other material obligation.
6. Purchaser shall have received upon terms to its reasonable satisfaction: (a) the consent of the Mortgagee for the assumption of the Mortgage by the Purchaser upon substantially the current terms and conditions thereof (it being understood that unless Purchaser shall have terminated this Agreement during the Review Period, Purchaser shall be deemed to have approved the current terms of the Mortgage and related documents, and (b) a statement from the Mortgagee to the effect that, without investigation, the Mortgagee is not actually aware of any defaults with respect to the Mortgage (it being understood that the sole effect of the inaccuracy of any such statement shall be the inability of the Mortgagee to assert any such known default against Mortgagee based on events occurring prior to the Closing) (the “Mortgagee Estoppel”). If Purchaser shall not have received the foregoing items, then this Agreement shall be considered terminated, the Deposit shall be returned to Purchaser, and neither Purchaser nor Seller shall have any further liability under this Agreement, except as to matters that specifically survive such termination. In the event any of the foregoing conditions to the Closing are not satisfied or waived in writing by Purchaser as of the Closing Date, then, Purchaser may either (i) extend the date for Closing until such conditions are satisfied (but only if (A) the unfulfilled conditions shall have occurred by reason of a default by Seller hereunder that can reasonably be cured within thirty (30) days, and (B) such extended period for the Closing shall not exceed such thirty (30)-day period, and if such condition shall not be fulfilled as of the end of such thirty (30)-day period, then Purchaser may terminate this Agreement; (ii) terminate this Agreement and have the Deposit refunded to Purchaser together with accrued interest (provided, however, that termination and refund of the Deposit shall not be Purchaser’s exclusive remedy to the extent other remedies are permitted by this Agreement) or (iii) waive in writing the satisfaction of any such conditions, in which event this Agreement shall be read as if such conditions no longer existed; provided, however, that if such failure of condition also constitutes or is accompanied by a default by Seller hereunder, Purchaser shall have all applicable rights and remedies as set forth in Section 13 hereof, and the indemnity contained in Section 3A hereof shall survive Closing. Notwithstanding that certain of Seller’s representations and warranties may be limited to the extent of actual knowledge of the facts stated therein, it shall be a condition precedent to Purchaser’s obligation to go to Closing that the facts stated in all such representations and warranties shall be correct in all material respects as of the time of Closing. If the Mortgagee does not approve in writing the assumption of the Mortgage by the Purchaser on or before two hundred ten (210 days after the Effective Date, and if Purchaser is not in default under this Agreement, then either Seller or Purchaser may terminate this Agreement and the date Deposit shall be returned to Purchaser and neither party shall have any further liability hereunder, except as to Section 3 hereof.
B. The obligations of Seller under this Agreement to sell the Property to Purchaser are subject to the satisfaction of each of the following conditions, any of which conditions may be waived in whole or in part by Seller by written waiver at or prior to the Closing (except those Date:
1. Purchaser shall have performed, observed and complied with all material covenants, agreements and conditions required by this Agreement to be performed by, observed and complied with on its part either on or prior to the Closing Date.
2. All of Purchaser’s representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date contained herein shall be true and correct in all material respects.
3. Purchaser shall have assumed the Mortgage with the Consent of the Mortgagee and Seller and its affiliates shall have been released with respect to all obligations under the Mortgage and any related guaranties, indemnities and other undertakings related to the Loan.
C. It shall also be a condition to the respective obligations of Seller and Purchaser to proceed to the Closing that, simultaneously with the Closing, the closing under that certain Purchase and Sale Agreement (the “Related Agreement”), of even date herewith, between ECHO Dillsburg, L.P. and ▇▇▇▇▇▇ Commons Associates, LLC, it being understood (a) that Purchaser shall not be entitled to rely on this condition if ▇▇▇▇▇▇ Commons Associates, LLC shall be in material default under the Related Agreement, and (b) that Seller shall not be entitled to rely on this condition if ECHO Dillsburg, L.P. shall be in material default under the Related Agreement. If the Closing shall not have occurred on or before the Closing Date other than solely by reason of Seller’s default hereunder, then, Seller may either (i) extend the date for Closing until such conditions are satisfied (but only if (A) the unfulfilled conditions shall have occurred by reason of a default by Purchaser hereunder that can reasonably be cured within thirty (30) days and (B) such extended period for the Closing shall not exceed such thirty (30)-day period, and if such condition shall not be fulfilled as of the end of such datethirty (30)-day period, then Seller may terminate this Agreement by notice to Purchaser prior to the end of such thirty (30)-day period and have the Deposit refunded to Purchaser together with accrued interest), except for or (ii) terminate this Agreement with the Deposit together with accrued interest refunded to Purchaser if Purchaser shall not then be in default under this Agreement (provided, however, that termination shall not be Seller’s exclusive remedy to the extent other remedies are permitted by this Agreement) or (iii) waive in writing the satisfaction of any such failures conditions, in which event this Agreement shall be read as if such conditions no longer existed; provided, however that, if such failure of condition also constitutes or is accompanied by a default by Purchaser hereunder, Seller shall have all applicable rights and remedies as set forth in Section 14 hereof, and the indemnity contained in Section 3A hereof shall survive Closing. Notwithstanding that certain of Purchaser’s representations and warranties may be limited to the extent of actual knowledge of the facts stated therein, it shall be so true and correct (without giving effect a condition precedent to any qualification as Seller’s obligation to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition go to Closing that the Company facts stated in all such representations and warranties shall have performed be correct in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date time of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedClosing.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wheeler Real Estate Investment Trust, Inc.)
Conditions. 3.1 The obligations of the Purchaser and the Vendors to complete this Agreement are in all respects conditional upon the fulfilment or waiver of the following conditions:
(a) The obligation all notifications and applications required under any statutory provision or other law in any jurisdiction applicable to any of the Investor Group Companies where transfer of the Shares cannot be made legally without clearance, or pursuant to consummate Council Regulation (EEC) 4064/89 and any other applicable Council Regulations, in connection with the Closing shall conclusion or performance of this Agreement, having been made to the competent authorities, and in respect of each such notification or application:
(i) the relevant competition authority having stated in writing that the subject matter of the notification or application is permitted, or that there are no objections to it or that it will not be subject to any further investigations, the foregoing subject to no conditions or to conditions which are reasonably acceptable to the Purchaser; or
(ii) where applicable, the period during which the relevant authority may refuse permission for, object to or commence an investigation into the subject matter of the notification or application having expired without any such action having been taken;
(b) no order or judgement of any court or Governmental Entity having been issued or made prior to Completion which has the effect of making unlawful or otherwise prohibiting the transfer of the Shares as contemplated under this Agreement, provided that if any such order or judgement is capable of being appealed, the Condition in this clause 3.1(b) shall only be considered not to have been fulfilled if within thirty (30) days of the such order or judgement having been handed down (i) no such appeal has been lodged, or (ii) if appealed, no further order or judgment is handed down reversing or nullifying the effect of the initial order or judgment.
3.2 Subject to the provisions of clauses 3.5, 3.6 and 3.7, the obligations of the Purchaser to complete this Agreement are in all respects conditional upon the fulfilment or waiver of the condition that all representations and warranties and other statements no act, omission or event shall have occurred which upon Completion would result in:
(a) a Material Breach of (i) the Vendor Warranties upon their repetition at Completion or (ii) the obligations of the Company Vendors under this Agreement (other than the obligations referred to in clause 4.3(d)) that are required to be performed between the date hereof and Completion; or
(b) the Vendors not having complied in all material respects with their obligations referred to in clause 4.3(d). (the conditions referred to in this clause 3.2, together with the conditions referred to in clause 3.1 hereinafter collectively referred to as the Conditions), provided that the Condition in this clause 3.2 shall in any event only be true considered not to have been fulfilled if a Material Breach is incapable of remedy, or if capable of remedy, is not remedied by the Vendors within the thirty (30) day period referred to in clause 3.7.
3.3 The Purchaser undertakes to use all reasonable endeavours to ensure that each of the Conditions referred to in clause 3.1 are fulfilled, and correct the Vendors undertake to use all reasonable endeavours to ensure that the Conditions are fulfilled. The Purchaser and each of the Vendors undertake to use all reasonable endeavours to ensure that Completion takes place in accordance with clause 5 as of soon as reasonably practicable and in any event by the first Business Day that is one-hundred and twenty (120) days after the date of this Agreement (the Termination Date).
3.4 Without prejudice to the generality of clause 3.3, the Vendors and the date Purchaser undertake to cooperate with and assist each other by providing the other and any Competition Authority as soon as is reasonably practicable upon request and in good faith any necessary information and documents for the purpose of making any submissions, filings and notifications to any Competition Authority. Furthermore, the Closing Vendors and the Purchaser agree that they shall in consultation with each other and as soon as reasonably practicable (except those representations and warranties that by their terms speak specifically as of and, with respect to making the necessary initial filings with the relevant Competition Authorities, to the extent reasonably practicable, within five (5) Business Days after the date of this Agreement) take all commercially reasonable steps that are necessary to obtain all consents, approvals, or actions of any Competition Authority which are required pursuant to clause 3.l(a) in order to complete the transactions contemplated hereunder and, without limitation, shall:
(a) progress such submissions, filings and notifications with all necessary diligence;
(b) provide all information which is requested or required by any such Competition Authority (to the extent that such Competition Authority is legally entitled to request or require such information);
(c) notify each other, and provide copies (or, in the case of non-written communications, reasonable details), of any communications from any such Competition Authority in relation to obtaining any such consent, approval or action and communicate with any such Competition Authority in respect of any of the transactions contemplated by this Agreement only after having consulted with each other in advance;
(d) provide each other (or some each other’s agents or advisers) with draft copies of all submissions, filings, notifications and communications to any Competition Authority in relation to obtaining any such consent, approval or action (excluding communications of an administrative nature) at such time as will allow the other date shall be true (or its agents or advisers) a reasonable opportunity to provide comments on such submissions, filings, notifications and correct as communications and to amend them in accordance with the reasonable requirements of such dateParty (or its agents or advisers) before they are submitted or sent to such Competition Authority and take into account any such comments or amendments; and provide each other (or each other’s agents or advisers) with copies of all such submissions and communications in the form submitted or sent; and
(e) where reasonably requested by the other Party, and where permitted by the Competition Authority concerned, allow persons nominated by the Vendors or the Purchaser, as the case may be, to attend all meetings (and participate in all telephone or other conversations) with any Competition Authority and, where appropriate, to make oral submissions at such meetings (or telephone or other conversations).
3.5 Upon an act, except for such failures to be so true and correct (without giving effect to omission or event having occurred which upon Completion would result in a Material Breach or any qualification breach as to materiality or Material Adverse Effect contained therein) as a result of which the Vendors would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed having complied in all material respects all of its with their obligations hereunder theretofore referred to in clause 4.3(d), the Purchaser shall be performed entitled (in addition and without giving effect prejudice to any qualification as other rights or remedies it may have against the Vendors under this Agreement), to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect elect by notice in writing to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company Vendors not to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those 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); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to complete the purchase of the Investor Shares contemplated herebyand, except for clauses 1, 21 to 22, 25 to 29 and Schedule 1 of this Agreement, this Agreement shall automatically terminate and be of no further force or effect and no party shall have any claim hereunder of any nature whatsoever against the other party (save in respect of accrued rights and/or liabilities arising from the prior breach of this Agreement); and
. For these purposes: a Material Breach means any breach of (3a) the conditions set forth in Section 10 Vendor Warranties upon their repetition at Completion and/or (b) the obligations of the Branch Purchase Agreement, Vendors under this Agreement (other than that referred to in clause 4.3(d)) that are required to be performed between the condition set forth date hereof and Completion, the effect of which individually or in Section 10.3(ethe aggregate with all other such breaches, would result in the Vendors being liable for Damages in an amount exceeding fifteen per. cent (15%) of the Branch Purchase Agreement with respect Debt/Cash Free Price.
3.6 The Purchaser shall notify the Vendors promptly in writing (a Rescission Notice) upon becoming aware of an act, event or omission having occurred which upon Completion would result in a Material Breach and on which basis it would elect not to proceed to Completion.
3.7 Upon receipt of any Rescission Notice, if the Material Breach is capable of remedy the Vendors may within five (5) Business Days elect by written notice to the Company’s acceptance Purchaser to extend the rescission of this Agreement by up to thirty (30) days after such notice, and the length of such extension shall be indicated in such notice. During such time, the Vendors shall be entitled, and shall use all reasonable endeavours, to remedy the breach, matter, event or circumstance giving rise to the Rescission Notice.
3.8 The Vendors and Purchaser shall consult and co-operate with each other in relation to planning for and scheduling the Completion, and each party shall notify the other parties to this Agreement as soon as reasonably practicable upon becoming aware that any of the proceeds Conditions have been fulfilled.
3.9 Each party shall notify the other parties as soon as reasonably practicable upon becoming aware of anything that will cause any of the Acceptable Financing Conditions not to be fulfilled on or prior to the Termination Date.
3.10 If any of the Conditions shall not have been fulfilled by and on the Termination Date, then the Vendors or the Purchaser may, by written notice to the others, terminate this Agreement, and upon delivery of such notice, neither the Vendors nor the Purchaser shall be bound to proceed with the sale of the Shares and, except for clauses 1, 21 to 22, 25 to 29 and Schedule 1 of this Agreement, this Agreement shall automatically terminate and be of no further force or effect and no party shall have any claim hereunder of any nature whatsoever against the other party (as defined save in respect of accrued rights and/or liabilities arising from the Branch Purchase prior breach of this Agreement), provided, however, that the right to terminate this Agreement under this clause 3.10 shall have been satisfied not be available (i) to the Vendors if any Vendor is in breach of or waivedhas breached its obligation under clause 3.3 or 3.4 or is in material breach of or has materially breached its other obligations under this Agreement or (ii) to the Purchaser if it is in breach of or has breached its obligations under clauses 3.3 or 3.4 or is in material breach of or has materially breached its other obligations under this Agreement and, in the case of both (i) and (ii), such breach has contributed materially to the non-satisfaction of the Conditions.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Ssa Global Technologies, Inc)