Common use of Execution and Closing Clause in Contracts

Execution and Closing. A. Purchaser has (a) executed this Agreement on and as of May 6, 2015, and the execution thereof by Seller is subject to, and shall occur upon, the approval of the Bankruptcy Court as of the date of said approval (the “Execution Date”); (b) executed that certain Escrow Agreement referred to and required in the Bidding Procedures Order, accompanied by the deposit with the escrow agent named therein (the “Escrow Agent”) of the sum of $1,300,000, equivalent to 10% of the Purchase Price (the “Escrow Deposit”), transmitted on the date hereof by wire transfer to the Escrow Agent; provided, that Seller and Purchaser shall deliver written instructions to the Escrow Agent to the effect that the Escrow Deposit shall be (i) applied to the payment of the Purchase Price by the Purchaser, if this Agreement is approved by the Bankruptcy Court (as defined below), or (ii) returned to the Purchaser if the purchase of the Assets by Purchaser is not approved by the Bankruptcy Court (as defined below) or if Agreement is terminated for any reason. B. Seller shall continue to operate the Business with its employees from the Execution Date to the Closing Date as described in subsection E. of this Section 1.5. C. Unless mutually extended by the parties, the final closing of the transactions contemplated in this Agreement (the “Closing”) will occur within five (5) business days after the Sale Order, as defined in Section 1.6 (A)(6), has been entered by the Bankruptcy Court (the “Closing Date”). D. [RESERVED] E. The Parties agree that continuity of business operations up until the Closing Date is of the essence to this Agreement. Therefore, 1. From the Execution Date until the Closing Date, except as otherwise consented to in writing by Purchaser, Seller shall: a. conduct the Business only in the ordinary course of business; b. use its best efforts to (a) preserve the present business operations and organization, and (b) preserve the present relationships with any person or entity having business dealings with the Business including, without limitation, customers and suppliers; c. maintain all of the Assets named on Addendum A in their current condition; d. maintain the books, accounts and records of the Business in the ordinary course of business; continue to collect accounts receivable and pay accounts payable associated with the Business utilizing procedures consistent with past practices and without discounting or accelerating payment of such accounts; and comply with all contractual and other obligations applicable to the operation of the Business; e. permit Purchaser’s representatives to remain on the business premises during normal business hours and to observe the operation of the business wherever conducted; provided Purchaser’s representatives do not interfere with Seller’s business operations; f. comply in all material respects with applicable laws; and g. not take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement. 2. From the date hereof until the Closing Date, except as otherwise consented to in writing by Purchaser, Seller shall not: a. incur or assume any indebtedness with respect to the Assets named on Addendum A; b. sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Assets named on Addendum A; c. enter into or agree to enter into any merger or consolidation with, any corporation or other entity; d. introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, other than in the ordinary course of business; e. enter into any transaction with respect to the Assets named on Addendum A which by reason of its size, nature, or otherwise is not in the ordinary course of business; f. terminate, amend, restate, supplement or waive any rights under any Material Contract; g. or make anything which would make any of the representations and warranties of Seller in this Agreement untrue or incorrect in any material respect.

Execution and Closing. A. Purchaser has (a) executed The execution of this Agreement on and as of May 6, 2015, and the execution thereof by Seller is subject todeliveries set forth in Section 2.10 will take place (i) at the offices of ▇▇▇▇▇ Day in Washington, and shall occur uponD.C., the approval of the Bankruptcy Court as of the date of said approval (the “Execution Date”); (b) executed that certain Escrow Agreement referred to and required in the Bidding Procedures Orderat 10:00 a.m., accompanied by the deposit with the escrow agent named therein (the “Escrow Agent”) of the sum of $1,300,000local time, equivalent to 10% of the Purchase Price (the “Escrow Deposit”), transmitted on the date hereof by wire transfer to the Escrow Agent; provided, that Seller and Purchaser shall deliver written instructions to the Escrow Agent to the effect that the Escrow Deposit shall be (i) applied to the payment of the Purchase Price by the Purchaser, if this Agreement is approved by the Bankruptcy Court (as defined below), or (ii) returned at such other place and time as Buyer, Seller and MHSI may agree in writing (the "Execution Date"). The Parties agree that their respective rights and obligations hereunder and under the documents delivered pursuant to Section 2.10(a) and Section 2.10(b) shall not take effect until the Purchaser if the purchase of the Assets by Purchaser is not approved by the Bankruptcy Court (as defined below) or if Agreement is terminated for any reason. B. Seller shall continue to operate the Business with its employees Closing Date, that such documents will be held in escrow from the Execution Date to the Closing Date as described in subsection E. by ▇▇▇▇▇ Day and released only pursuant to joint instructions of this Section 1.5. C. Unless mutually extended by the partiesMHSI and Buyer, the final closing and that such documents shall be of the transactions contemplated in this Agreement (the “Closing”) will occur within five (5) business days after the Sale Order, as defined in Section 1.6 (A)(6), has been entered by the Bankruptcy Court (the “Closing Date”). D. [RESERVED] E. The Parties agree that continuity of business operations up no force and effect until the Closing Date is consummated. (b) Subject to Section 2.9(c) below, the Closing will take place within 30 days after receipt from the IRS of an additional private letter ruling (the "Private Letter Ruling") containing the following rulings: (i) the Operating Company, using the Covol 298-1 reagent, will produce a "qualified fuel" within the meaning of Section 29(c)(1)(C) of the essence Code; (ii) production of qualified fuel at the Facility will be attributable solely to this Agreement. Therefore,the Operating Company, entitling the Operating Company to the Tax Credit on such fuel sold to unrelated parties; and 1. From (iii) the Tax Credit may be passed through to and allocated among the members of the Operating Company (which shall be defined in the Private Letter Ruling as MHSI, Buyer and Seller), in accordance with each member's interest in the Operating Company when the Tax Credit arises, which is determined based on a valid allocation of the receipts from the sale of the qualified fuel. (c) Buyer shall not be obligated to consummate the Closing if the Private Letter Ruling is not issued by July 31, 2003 or if, at the time the requirements of Section 2.9(b) are satisfied, either (i) a Tax Event has occurred; (ii) MHSI and Seller have not funded the Operating Company fully for the period up to and including the Closing Date; (iii) Seller or MHSI has not performed any of the covenants the Seller or MHSI is required to perform between the Execution Date until and the Closing Date under this Agreement or any other Transaction Document, or there is a material breach of a representation and warranty set forth in Section 3.3(p) and such failure or breach, in the written opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP (or other nationally recognized tax counsel) should have a materially adverse effect on Buyer's ability to claim Tax Credits, or (iv) the Private Letter Ruling contains (or fails to contain) language the presence (or absence) of which in the written opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP (or other nationally recognized tax counsel) should have a materially adverse effect on Buyer's ability to claim Tax Credits or (v) there shall be revealed or there shall have occurred a circumstance or an event that, in Buyer's reasonable judgment, results in, or at the Closing Date would result in (A) a material breach of a representation and warranty set forth in Section 3.3(i), (B) a breach of a representation and warranty set forth in Section 3.1(b) of this Agreement, (C) a tort claim against the Operating Company that could reasonably be expected to result in a liability to the Operating Company in excess of $5 million or (D) a casualty to the Facility that has a material adverse effect on the capacity of the Facility to produce synthetic fuel qualifying for Tax Credits, and in any such case (A)-(D), Seller and MHSI have not, within ninety (90) days of such revelation or occurrence, cured or corrected such circumstance or event. (d) On the Closing Date, except as otherwise consented Seller and MHSI each shall deliver to in writing by Purchaser, Seller shall: a. conduct the Business only in the ordinary course Buyer an officer's certificate of business; b. use its best efforts to (a) preserve the present business operations and organization, and (b) preserve the present relationships with any person or entity having business dealings with the Business including, without limitation, customers and suppliers; c. maintain all of the Assets named on Addendum A in their current condition; d. maintain the books, accounts and records of the Business in the ordinary course of business; continue to collect accounts receivable and pay accounts payable associated with the Business utilizing procedures consistent with past practices and without discounting or accelerating payment of such accounts; and comply with all contractual and other obligations applicable to the operation of the Business; e. permit Purchaser’s representatives to remain on the business premises during normal business hours and to observe the operation of the business wherever conducted; provided Purchaser’s representatives do not interfere with Seller’s business operations; f. comply in all material respects with applicable laws; and g. not take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement. 2. From the date hereof until the Closing Date, except as otherwise consented to in writing by Purchaser, Seller shall not: a. incur or assume any indebtedness with respect to the Assets named on Addendum A; b. sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Assets named on Addendum A; c. enter into or agree to enter into any merger or consolidation with, any corporation or other entity; d. introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, other than in the ordinary course of business; e. enter into any transaction with respect to the Assets named on Addendum A which by reason of its size, nature, or otherwise is not in the ordinary course of business; f. terminate, amend, restate, supplement or waive any rights under any Material Contract; g. or make anything which would make any an Authorized Officer certifying that each of the representations and warranties set forth in Sections 3.1, 3.2 and 3.3 of Seller in this Agreement untrue is true and correct in all material respects as of the Closing Date; provided that if MHSI is not able to deliver such certificate, Buyer shall not be obligated to consummate the Closing only if the circumstances preventing the delivery of such certificate should in the written opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP (or incorrect other nationally recognized tax counsel) have a materially adverse effect on Buyer's ability to claim Tax Credits. (e) On the Closing Date, Seller shall deliver to Buyer a bring-down opinion of internal and outside counsels to MHSI and Seller addressing the matters set forth in any material respectSection 2.10(b)(ii), (iii) and (iv), which opinions shall be in form and substance satisfactory to Buyer.

Execution and Closing. A. Purchaser has (a) executed The execution of this Agreement on and as of May 6, 2015, and the execution thereof by Seller is subject todeliveries set forth in Section 2.10 will take place (i) at the offices of ▇▇▇▇▇ Day in Washington, and shall occur uponD.C., the approval of the Bankruptcy Court as of the date of said approval (the “Execution Date”); (b) executed that certain Escrow Agreement referred to and required in the Bidding Procedures Orderat 10:00 a.m., accompanied by the deposit with the escrow agent named therein (the “Escrow Agent”) of the sum of $1,300,000local time, equivalent to 10% of the Purchase Price (the “Escrow Deposit”), transmitted on the date hereof by wire transfer to the Escrow Agent; provided, that Seller and Purchaser shall deliver written instructions to the Escrow Agent to the effect that the Escrow Deposit shall be (i) applied to the payment of the Purchase Price by the Purchaser, if this Agreement is approved by the Bankruptcy Court (as defined below), or (ii) returned at such other place and time as Buyer, Seller and MHSI may agree in writing (the "Execution Date"). The Parties agree that their respective rights and obligations hereunder and under the documents delivered pursuant to Section 2.10(a) and Section 2.10(b) shall not take effect until the Purchaser if the purchase of the Assets by Purchaser is not approved by the Bankruptcy Court (as defined below) or if Agreement is terminated for any reason. B. Seller shall continue to operate the Business with its employees Closing Date, that such documents will be held in escrow from the Execution Date to the Closing Date as described in subsection E. by ▇▇▇▇▇ Day and released only pursuant to joint instructions of this Section 1.5. C. Unless mutually extended by the partiesMHSI and Buyer, the final closing and that such documents shall be of the transactions contemplated in this Agreement (the “Closing”) will occur within five (5) business days after the Sale Order, as defined in Section 1.6 (A)(6), has been entered by the Bankruptcy Court (the “Closing Date”). D. [RESERVED] E. The Parties agree that continuity of business operations up no force and effect until the Closing Date is consummated. (b) Subject to Section 2.9(c) below, the Closing will take place within 30 days after receipt from the IRS of an additional private letter ruling (the "Private Letter Ruling") containing the following rulings: (i) the Operating Company, using the Covol 298-1 reagent, will produce a "qualified fuel" within the meaning of Section 29(c)(1)(C) of the essence Code; (ii) production of qualified fuel at the Facilities will be attributable solely to this Agreement. Therefore,the Operating Company, entitling the Operating Company to the Tax Credit on such fuel sold to unrelated parties; and 1. From (iii) the Tax Credit may be passed through to and allocated among the members of the Operating Company (which shall be defined in the Private Letter Ruling as MHSI, Buyer and Seller), in accordance with each member's interest in the Operating Company when the Tax Credit arises, which is determined based on a valid allocation of the receipts from the sale of the qualified fuel. (c) Buyer shall not be obligated to consummate the Closing if the Private Letter Ruling is not issued by July 31, 2003 or if, at the time the requirements of Section 2.9(b) are satisfied, either (i) a Tax Event has occurred; (ii) MHSI and Seller have not funded the Operating Company fully for the period up to and including the Closing Date; (iii) Seller or MHSI has not performed any of the covenants the Seller or MHSI is required to perform between the Execution Date until and the Closing Date under this Agreement or any other Transaction Document, or there is a material breach of a representation and warranty set forth in Section 3.3(p) and such failure or breach, in the written opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP (or other nationally recognized tax counsel) should have a materially adverse effect on Buyer's ability to claim Tax Credits, or (iv) the Private Letter Ruling contains (or fails to contain) language the presence (or absence) of which in the written opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP (or other nationally recognized tax counsel) should have a materially adverse effect on Buyer's ability to claim Tax Credits or (v) there shall be revealed or there shall have occurred a circumstance or an event that, in Buyer's reasonable judgment, results in, or at the Closing Date would result in (A) a material breach of a representation and warranty set forth in Section 3.3(i), (B) a breach of a representation and warranty set forth in Section 3.1(b) of this Agreement, (C) a tort claim against the Operating Company that could reasonably be expected to result in a liability to the Operating Company in excess of $5 million or (D) a casualty to any of the Facilities that has a material adverse effect on the capacity of the Facilities to produce synthetic fuel qualifying for Tax Credits, and in any such case (A)-(D), Seller and MHSI have not, within ninety (90) days of such revelation or occurrence, cured or corrected such circumstance or event. (d) On the Closing Date, except as otherwise consented Seller and MHSI each shall deliver to in writing by Purchaser, Seller shall: a. conduct the Business only in the ordinary course Buyer an officer's certificate of business; b. use its best efforts to (a) preserve the present business operations and organization, and (b) preserve the present relationships with any person or entity having business dealings with the Business including, without limitation, customers and suppliers; c. maintain all of the Assets named on Addendum A in their current condition; d. maintain the books, accounts and records of the Business in the ordinary course of business; continue to collect accounts receivable and pay accounts payable associated with the Business utilizing procedures consistent with past practices and without discounting or accelerating payment of such accounts; and comply with all contractual and other obligations applicable to the operation of the Business; e. permit Purchaser’s representatives to remain on the business premises during normal business hours and to observe the operation of the business wherever conducted; provided Purchaser’s representatives do not interfere with Seller’s business operations; f. comply in all material respects with applicable laws; and g. not take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement. 2. From the date hereof until the Closing Date, except as otherwise consented to in writing by Purchaser, Seller shall not: a. incur or assume any indebtedness with respect to the Assets named on Addendum A; b. sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Assets named on Addendum A; c. enter into or agree to enter into any merger or consolidation with, any corporation or other entity; d. introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, other than in the ordinary course of business; e. enter into any transaction with respect to the Assets named on Addendum A which by reason of its size, nature, or otherwise is not in the ordinary course of business; f. terminate, amend, restate, supplement or waive any rights under any Material Contract; g. or make anything which would make any an Authorized Officer certifying that each of the representations and warranties set forth in Sections 3.1, 3.2 and 3.3 of Seller in this Agreement untrue is true and correct in all material respects as of the Closing Date; provided that if MHSI is not able to deliver such certificate, Buyer shall not be obligated to consummate the Closing only if the circumstances preventing the delivery of such certificate should in the written opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP (or incorrect other nationally recognized tax counsel) have a materially adverse effect on Buyer's ability to claim Tax Credits. (e) On the Closing Date, Seller shall deliver to Buyer a bring-down opinion of internal and outside counsels to MHSI and Seller addressing the matters set forth in any material respectSection 2.10(b)(ii), (iii) and (iv), which opinions shall be in form and substance satisfactory to Buyer.