Conditions of Purchaser’s Obligations. Purchaser’s obligations to consummate the transactions contemplated by this Agreement are conditioned upon the satisfaction (or written or deemed waiver by Purchaser) of each of the following conditions: (a) The representations and warranties and disclosures made by Seller in Section 6 shall be true and correct in all material respects when made and at the time of the Closing, subject to changes occurring in accordance with this Agreement disclosed in the bring down certificate; (b) Seller shall have discharged its material obligations under this Agreement, and all the sellers under each of the Affiliate Agreements shall have discharged their material obligations under the Affiliate Agreements; (c) Seller shall have delivered to the Title Company for the benefit of Purchaser all documents and deliveries required to be so delivered pursuant to Section 3.2; (d) Seller shall have terminated the Management Agreement at Seller’s sole cost and expense; (e) If applicable, to the extent Purchaser has not received the New Liquor Permits and has otherwise complied with Section 5.12, Seller or Licensee, as applicable, shall have entered into and executed the Interim Beverage Agreement; (f) Concurrent Closing of this Agreement with closing of each of the Affiliate Agreements shall have occurred, except for any Affiliate Agreement as to which the closing is not occurring as a result of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement shall not be a condition of the Closing under this Agreement; (g) Purchaser or its operating lessee and Franchisor shall have executed and delivered the New Franchise Agreement, on terms (including respecting any PIP required by the Franchisor) acceptable to Purchaser in its sole and absolute discretion; (h) Title Company shall have committed to issue the Title Insurance Policy for the Property, subject to the payment by Purchaser of any fees and expenses respecting the Title Insurance Policy required to be paid by Purchaser under Section 3.5; and (i) If pursuant to Section 5.13, Purchaser or its operating lessee has elected to enter into the Interim Hotel Management Agreement with Manager, Manager shall have duly executed and delivered the Interim Hotel Management Agreement. If any of the conditions set forth in this Section 13 are not satisfied as of the Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, then except as provided below, the Scheduled Closing Date shall be extended one time for thirty (30) days, and if the conditions are not satisfied by the extended Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have the right to (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser under this Agreement (except those set forth in this Agreement that expressly survive a termination of this Agreement) shall terminate immediately, or (b) waive such condition(s) and proceed to Closing. For the sake of clarity, if the Scheduled Closing Date under any of the Affiliate Agreements is extended for thirty (30) days pursuant to the similar provision in Section 12 of any of the Affiliate Agreements to allow for satisfaction of conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Hilton approval of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day period.
Appears in 3 contracts
Sources: Purchase and Sale Agreement (Condor Hospitality Trust, Inc.), Purchase and Sale Agreement (Condor Hospitality Trust, Inc.), Purchase and Sale Agreement (Condor Hospitality Trust, Inc.)
Conditions of Purchaser’s Obligations. Purchaser’s obligations 's obligation to consummate the transactions contemplated by this Agreement are is conditioned upon the satisfaction (or written or deemed waiver by Purchaser) of each of the following conditions:
(a) The representations and warranties and disclosures made by Seller in Section 6 shall be true and correct in all material respects when made and at the time of the Closing, subject to changes occurring in accordance with this Agreement disclosed in the bring down certificate;
(b) Seller shall have discharged its material obligations under this Agreement, and all the sellers under each of the Affiliate Agreements shall have discharged their material obligations under the Affiliate Agreements;
(c) Seller shall have delivered to the Title Company for the benefit of Purchaser all documents and deliveries required to be so delivered pursuant to Section 3.2;
(d) Seller shall have terminated the Management Agreement at Seller’s 's sole cost and expense;
(e) If applicable, to the extent Purchaser has not received the New Liquor Permits and has otherwise complied with Section 5.12, Seller or Licensee, as applicable, shall have entered into and executed complied with the Interim Beverage Agreementterms of Section 5.12 hereof;
(f) Concurrent Closing of this Agreement with closing of each of the Affiliate Agreements shall have occurred, except for any Affiliate Agreement as to which the closing is not occurring as a result of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement Marriott shall not be a condition of have (through no action or inaction caused by Purchaser), rescinded or revoked the Closing under this Agreement;Franchise Approval; and
(g) Purchaser or its operating lessee and Franchisor shall have executed and delivered the New Franchise Agreement, on terms (including respecting any PIP required by the Franchisor) acceptable to Purchaser in its sole and absolute discretion;
(h) Title Company shall have committed to issue the Title Insurance Policy for the Property, subject to the payment by Purchaser of any fees and expenses respecting the Title Insurance Policy required to be paid by Purchaser under Section 3.5; and
(i) If pursuant to Section 5.13, Purchaser or its operating lessee has elected to enter into the Interim Hotel Management Agreement with Manager, Manager shall have duly executed and delivered the Interim Hotel Management Agreement. If any of the conditions set forth in this Section 13 1213 are not satisfied as of the Scheduled Closing DateDate (as same may be extended pursuant to Section 3.1 of this Agreement), other than as a result of Purchaser’s 's or any of its affiliate’s 's own actions or failure to act or a breach of Purchaser’s 's obligations under this Agreement, then except as provided below, the Scheduled Closing Date shall be extended one time for thirty (30) days, and if the conditions are not satisfied by the extended Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have the right to (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser under this Agreement (except those set forth in this Agreement that expressly survive a termination of this Agreement) shall terminate immediately, or (b) waive such condition(s) and proceed to Closing. For the sake of clarity, if the Scheduled Closing Date under any of the Affiliate Agreements is extended for thirty (30) days pursuant to the similar provision in Section 12 of any of the Affiliate Agreements to allow for satisfaction of conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Hilton approval of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day period.
Appears in 3 contracts
Sources: Purchase and Sale Agreement (Condor Hospitality Trust, Inc.), Purchase and Sale Agreement (Condor Hospitality Trust, Inc.), Purchase and Sale Agreement (Condor Hospitality Trust, Inc.)
Conditions of Purchaser’s Obligations. Purchaser’s The several obligations of the Purchasers to consummate purchase the transactions contemplated by Remaining Shares under this Agreement are conditioned upon subject to the satisfaction (or written or deemed waiver by Purchaser) of each of the following conditions:
(a) The All the representations and warranties of the Company contained in this Agreement shall be true and disclosures correct on the Closing Date with the same force and effect as if made on and as of the Closing Date;
(b) If the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, such Rule 462(b) Registration Statement shall have become effective prior to the date of expiration of the Exchange Offer. 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;
(c) Delivery by the Company on the Closing Date of a usual and customary certificate dated the Closing Date, signed by a responsible officer of the Company, which states that all representations and warranties made by Seller the Company contained in Section 6 shall be this Agreement are true and correct in all material respects when made as of such date in all material respects and at that the time Company has complied with all of the Closing, subject to changes occurring in accordance with this Agreement disclosed in the bring down certificate;
(b) Seller shall have discharged its material obligations under this Agreement, agreements and satisfied all the sellers under each of the Affiliate Agreements shall have discharged their material obligations under the Affiliate Agreements;
(c) Seller shall have delivered to the Title Company for the benefit of Purchaser all documents conditions herein contained and deliveries required to be so delivered pursuant complied with or satisfied by the Company on or prior to Section 3.2the Closing Date;
(d) Seller There shall not have terminated occurred or become known to the Management Agreement at SellerPurchasers any event, development or circumstance since December 26, 2003 that (i) has caused or could reasonably be expected to cause a Material Adverse Effect, or (ii) has or could reasonably be expected to have a material adverse effect on the Exchange Offer that has not been disclosed in the Form S-4 as filed with the Commission prior to the date hereof or in the Company’s sole cost and expense34 Act Reports filed prior to the date hereof or disclosed in writing to the Purchasers prior to the date hereof;
(e) If applicable, to the extent Purchaser has not received the New Liquor Permits and has otherwise complied with Section 5.12, Seller or Licensee, as applicable, The Purchasers shall have entered into and executed received on the Interim Beverage AgreementClosing Date opinions in connection with the consummation of the Exchange Offer in the forms attached as Annexes A–1 through A– hereto;
(f) Concurrent Closing The Company shall have paid any outstanding invoices for fees and expenses incurred by Saybrook Restructuring Advisors, LLC and Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, with respect to which invoices have been delivered to the Company on or before [the date of this Agreement with closing of each expiration of the Affiliate Agreements shall have occurred, except for any Affiliate Agreement as to which the closing is not occurring as a result of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement shall not be a condition of the Closing under this AgreementExchange Offer];
(g) Purchaser The Company shall not have failed on or its operating lessee prior to the Closing Date to perform or comply in all material respects with any of the agreements herein contained and Franchisor shall have executed and delivered the New Franchise Agreement, on terms (including respecting any PIP required to be performed or complied with by the Franchisor) acceptable Company on or prior to Purchaser in its sole and absolute discretion;the Closing Date; and
(h) Title The Company shall have committed to issue the Title Insurance Policy for the Property, subject to the payment by Purchaser of any fees and expenses respecting the Title Insurance Policy required to be paid by Purchaser under Section 3.5; and
(i) If pursuant to Section 5.13, Purchaser or its operating lessee has elected to enter entered into the Interim Hotel Management Registration Rights Agreement with Manager, Manager shall have duly executed and delivered if requested by any Purchaser that will be the Interim Hotel Management Agreement. If any Beneficial Owner of over 5% of the conditions set forth in this Section 13 are not satisfied Company’s Common Shares on an as converted basis immediately following consummation of the Scheduled Exchange Offer and the Offering on the Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, then except as provided below, the Scheduled Closing Date shall be extended one time for thirty (30) days, and if the conditions are not satisfied by the extended Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have the right to (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser under this Agreement (except those set forth in this Agreement that expressly survive a termination of this Agreement) shall terminate immediately, or (b) waive such condition(s) and proceed to Closing. For the sake of clarity, if the Scheduled Closing Date under any of the Affiliate Agreements is extended for thirty (30) days pursuant to the similar provision in Section 12 of any of the Affiliate Agreements to allow for satisfaction of conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Hilton approval of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day period.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Foster Wheeler LTD), Stock Purchase Agreement (Foster Wheeler Inc)
Conditions of Purchaser’s Obligations. The Purchaser’s obligations 's obligation to consummate purchase and pay for the transactions contemplated by this Agreement are conditioned upon Bonds which is to be delivered as the satisfaction (or written or deemed waiver by Purchaser) of each initial installment hereunder is subject to the fulfillment of the following conditionsconditions at or before such delivery, any one or more of which may be waived by the Purchaser:
(a) The representations Lease, the Indenture and warranties this Bond Purchase Agreement shall have been duly authorized, executed and disclosures made delivered by Seller the respective parties thereto, in Section 6 substantially the forms heretofore approved by the Purchaser, with only such changes therein as the Purchaser, the Issuer and the Lessee shall be true and correct in all material respects when made and at the time of the Closing, subject to changes occurring in accordance with this Agreement disclosed in the bring down certificatemutually agree upon;
(b) Seller The Bond to be initially delivered shall have discharged its material obligations under this Agreementbeen duly authorized, executed and all authenticated in accordance with the sellers under each provisions of the Affiliate Agreements shall have discharged their material obligations under the Affiliate AgreementsIndenture;
(c) Seller The Purchaser shall have delivered to received the Title Company for following documents:
(i) Executed counterparts of the benefit of Purchaser all documents Lease and deliveries required to be so delivered pursuant to Section 3.2the Indenture;
(dii) Seller shall have terminated Opinions dated as of the Management Agreement at Seller’s sole cost date of delivery of the Bond to be initially delivered of (A) Counsel for the Issuer in substantially the form of that which is attached hereto as Exhibit "A"; (B) Bond Counsel in substantially the form of that which is attached hereto as Exhibit "B"; and expense(C) Counsel for the Lessee in substantially the form of that which is attached hereto as Exhibit "C";
(eiii) If applicableA certificate dated as of the date of delivery of the Bond to be initially delivered, signed by the Chairman or Vice Chairman and the Secretary of the Issuer and in form and substance satisfactory to the Purchaser, to the extent Purchaser has not received effect that to the New Liquor Permits best of the information, knowledge and has otherwise complied with Section 5.12belief of such officers, Seller or Licensee, as applicable, shall have entered into and executed the Interim Beverage Agreement;
(f) Concurrent Closing of this Agreement with closing of each of the Affiliate Agreements shall have occurredrepresentations and warranties set forth in Paragraph 4 hereof and in the Lease is true, except for any Affiliate Agreement accurate and complete in all material respects as to which the closing is not occurring as a result of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement shall not be a condition of the Closing under date of delivery of the Bond to be initially delivered and that the Issuer has complied with each of its covenants and agreements required in this Agreement;
(g) Purchaser Bond Purchase Agreement to be complied with at or its operating lessee and Franchisor shall have executed and delivered the New Franchise Agreement, on terms (including respecting any PIP required by the Franchisor) acceptable to Purchaser in its sole and absolute discretion;
(h) Title Company shall have committed to issue the Title Insurance Policy for the Property, subject prior to the payment by Purchaser date of any fees and expenses respecting delivery of the Title Insurance Policy required Bond to be paid by Purchaser under Section 3.5initially delivered; and
(iiv) If pursuant to Section 5.13Such additional opinions, certificates, instruments and other documents as the Purchaser or its operating lessee has elected counsel may reasonably request to enter into evidence compliance with applicable law, as of the Interim Hotel Management Agreement with Manager, Manager shall have duly executed date of delivery of the Bond to be initially delivered. The Purchaser's obligation to purchase and delivered the Interim Hotel Management Agreement. If pay for any of the conditions set forth in this Section 13 are not satisfied as Bonds at any time or from time to time after the delivery of the Scheduled Closing DateBond to be initially delivered, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreementherein provided, then except as provided below, the Scheduled Closing Date shall be extended one time for thirty (30) days, and if the conditions are not satisfied by the extended Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have the right to (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser under this Agreement (except those set forth in this Agreement that expressly survive a termination of this Agreement) shall terminate immediately, or (b) waive such condition(s) and proceed to Closing. For the sake of clarity, if the Scheduled Closing Date under any of the Affiliate Agreements is extended for thirty (30) days pursuant subject to the similar provision in Section 12 due execution, authentication and delivery to the Purchaser of any of the Affiliate Agreements to allow for satisfaction of conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Hilton approval of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day periodsuch pertinent Bond.
Appears in 2 contracts
Sources: Bond Purchase Agreement (Adesa Inc), Bond Purchase Agreement (Allete Inc)
Conditions of Purchaser’s Obligations. Purchaser’s obligations to consummate the transactions contemplated by this Agreement are conditioned upon the satisfaction (or written or deemed waiver by Purchaser) of each of the following conditions:
(a) The representations and warranties and disclosures made by Seller in Section 6 shall be true and correct in all material respects when made and at the time of the Closing, subject to changes occurring in accordance with this Agreement disclosed in the bring down certificate;
(b) Seller shall have discharged its material obligations under this Agreement, and all the sellers under each of the Affiliate Agreements shall have discharged their material obligations under the Affiliate Agreements;
(c) Seller shall have delivered to the Title Company for the benefit of Purchaser all documents and deliveries required to be so delivered pursuant to Section 3.2;
(d) Seller shall have terminated the Management Agreement at Seller’s sole cost and expense;
(e) If applicable, to the extent Purchaser has not received the New Liquor Permits and has otherwise complied with Section 5.12, Seller or Licensee, as applicable, shall have entered into and executed the Interim Beverage Agreement;
(f) Concurrent Closing of this Agreement with closing of each of the Affiliate Agreements shall have occurred, except for any Affiliate Agreement as to which the closing is not occurring as a result of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement shall not be a condition of the Closing under this Agreement;
(g) On or before the Scheduled Closing Date, Existing Lender shall have unconditionally approved the sale of the Property, the lease of the Property to Purchaser’s operating lessee, and assumption by Purchaser of the Existing Loan on the terms of the Existing Loan Assumption Conditional Approval, and both Existing Lender, Seller, and any guarantors and indemnitors shall have executed and delivered to the Escrow Holder any Existing Loan assumption documents required by Existing Lender to complete the Existing Loan assumption;
(h) Purchaser or its operating lessee and Franchisor shall have executed and delivered the New Franchise Agreement, on terms (including respecting any PIP required by the Franchisor) acceptable to Purchaser in its sole and absolute discretion. However, if the Closing under this Agreement will not occur on the scheduled closing date under the Affiliate Agreements due to any extension of the Scheduled Closing Date that do not also extend the scheduled closing date under the Affiliate Agreements, the condition in this Section 12(h) shall be deemed to be automatically waived by Purchaser;
(hi) Title Company shall have committed to issue the Title Insurance Policy for the Property, subject to the payment by Purchaser of any fees and expenses respecting the Title Insurance Policy required to be paid by Purchaser under Section 3.5, which will be subject to the exceptions for the liens and security interests securing the Existing Loan, if the condition in Section 12(g) is satisfied, or else free and clear of the exceptions for the liens and security interests securing the Existing Loan; and
(ij) If pursuant to Section 5.135.14, Purchaser or its operating lessee has elected to enter into the Interim Hotel Management Agreement with Manager, Manager shall have duly executed and delivered the Interim Hotel Management Agreement. If any of the conditions set forth in this Section 13 13, other than Section 12(g) and after it is waived as provided therein, Section 12(h), are not satisfied as of the Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, then except as provided below, the Scheduled Closing Date shall be extended one time for thirty (30) days, and if the conditions are not satisfied by the extended Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have the right to (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser under this Agreement (except those set forth in this Agreement that expressly survive a termination of this Agreement) shall terminate immediately, or (b) waive such condition(s) and proceed to Closing. For the sake of clarity, if the Scheduled Closing Date scheduled closing date under any of the Affiliate Agreements is extended for thirty (30) days pursuant to the similar provision in Section 12 of any of the Affiliate Agreements to allow for satisfaction of conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Existing Lender’s approval of the Existing Loan assumption, the Hilton approval of the New Franchise Agreement Agreement, or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day period. However, if the condition in Section 12(g) has not been met by the Scheduled Closing Date, then pursuant to Section 5.13(b), (i) the condition in Section 12(g) shall be automatically be waived by Purchaser, (ii) the condition in Section 13(e) shall automatically be waived by Seller, and (iii) the parties shall proceed to close the purchase and sale on an all cash basis (except for Unit Consideration), in which case the Scheduled Closing Date shall be extended pursuant to Section 5.13(b).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Condor Hospitality Trust, Inc.)
Conditions of Purchaser’s Obligations. The Purchaser’s obligations obligation to consummate purchase and pay for the transactions contemplated by this Agreement are conditioned upon Bonds which is to be delivered as the satisfaction (or written or deemed waiver by Purchaser) of each initial installment hereunder is subject to the fulfillment of the following conditionsconditions at or before such delivery, any one or more of which may be waived by the Purchaser:
(a) The representations Lease, the Indenture and warranties this Bond Purchase Agreement shall have been duly authorized, executed and disclosures made delivered by Seller the respective parties thereto, in Section 6 substantially the forms heretofore approved by the Purchaser, with only such changes therein as the Purchaser, the Issuer and the Lessee shall be true and correct in all material respects when made and at the time of the Closing, subject to changes occurring in accordance with this Agreement disclosed in the bring down certificatemutually agree upon;
(b) Seller The Bond to be initially delivered shall have discharged its material obligations under this Agreementbeen duly authorized, executed and all authenticated in accordance with the sellers under each provisions of the Affiliate Agreements shall have discharged their material obligations under the Affiliate AgreementsIndenture;
(c) Seller The Purchaser shall have delivered to received the Title Company for following documents:
(i) Executed counterparts of the benefit of Purchaser all documents Lease and deliveries required to be so delivered pursuant to Section 3.2the Indenture;
(dii) Seller shall have terminated Opinions dated as of the Management Agreement at Seller’s sole cost date of delivery of the Bond to be initially delivered of (A) Counsel for the Issuer in substantially the form of that which is attached hereto as Exhibit “A”; (B) Bond Counsel in substantially the form of that which is attached hereto as Exhibit “B”; and expense(C) Counsel for the Lessee in substantially the form of that which is attached hereto as Exhibit “C”;
(eiii) If applicableA certificate dated as of the date of delivery of the Bond to be initially delivered, signed by the Chairman or Vice Chairman and the Secretary of the Issuer and in form and substance satisfactory to the Purchaser, to the extent Purchaser has not received effect that to the New Liquor Permits best of the information, knowledge and has otherwise complied with Section 5.12belief of such officers, Seller or Licensee, as applicable, shall have entered into and executed the Interim Beverage Agreement;
(f) Concurrent Closing of this Agreement with closing of each of the Affiliate Agreements shall have occurredrepresentations and warranties set forth in Paragraph 4 hereof and in the Lease is true, except for any Affiliate Agreement accurate and complete in all material respects as to which the closing is not occurring as a result of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement shall not be a condition of the Closing under date of delivery of the Bond to be initially delivered and that the Issuer has complied with each of its covenants and agreements required in this Agreement;
(g) Purchaser Bond Purchase Agreement to be complied with at or its operating lessee and Franchisor shall have executed and delivered the New Franchise Agreement, on terms (including respecting any PIP required by the Franchisor) acceptable to Purchaser in its sole and absolute discretion;
(h) Title Company shall have committed to issue the Title Insurance Policy for the Property, subject prior to the payment by Purchaser date of any fees and expenses respecting delivery of the Title Insurance Policy required Bond to be paid by Purchaser under Section 3.5initially delivered; and
(iiv) If pursuant to Section 5.13Such additional opinions, certificates, instruments and other documents as the Purchaser or its operating lessee has elected counsel may reasonably request to enter into evidence compliance with applicable law, as of the Interim Hotel Management Agreement with Manager, Manager shall have duly executed date of delivery of the Bond to be initially delivered. The Purchaser’s obligation to purchase and delivered the Interim Hotel Management Agreement. If pay for any of the conditions set forth in this Section 13 are not satisfied as Bonds at any time or from time to time after the delivery of the Scheduled Closing DateBond to be initially delivered, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreementherein provided, then except as provided below, the Scheduled Closing Date shall be extended one time for thirty (30) days, and if the conditions are not satisfied by the extended Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have the right to (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser under this Agreement (except those set forth in this Agreement that expressly survive a termination of this Agreement) shall terminate immediately, or (b) waive such condition(s) and proceed to Closing. For the sake of clarity, if the Scheduled Closing Date under any of the Affiliate Agreements is extended for thirty (30) days pursuant subject to the similar provision in Section 12 due execution, authentication and delivery to the Purchaser of any of the Affiliate Agreements to allow for satisfaction of conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Hilton approval of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day periodsuch pertinent Bond.
Appears in 1 contract
Conditions of Purchaser’s Obligations. Purchaser’s obligations to consummate the transactions contemplated by this Agreement are conditioned upon the satisfaction (or written or deemed waiver by Purchasera) EACH FUNDING OF A NOTE INCREASE. The obligation of each of you to fund your Purchase Percentage of a Note Increase on any Purchase Date shall be subject to the following conditions:
fact that: (au) The no Default or Event of Default shall have occurred; (v) the Insurer Notice Date shall not have occurred; (w) the Note Increase to be funded shall be in conformity with the description thereof contained in Section 1 hereof; (x) the Purchase Period shall not have expired; (y) the representations and warranties that are made on the part of the Issuer and disclosures made by Seller contained in Section 6 this Agreement shall be true and correct correct, on and as of such Purchase Date, as if made on and as of such Purchase Date; and (z) the Issuer shall be in continuing compliance, in all material respects, with all of its obligations hereunder and under the Basic Agreements and that the Issuer and AFL are in continuing compliance in all material respects when made and at the time of the Closing, subject to changes occurring in accordance with this Agreement disclosed in the bring down certificate;
(b) Seller shall have discharged its material obligations under this Agreement, and all the sellers under each of the Affiliate Agreements shall have discharged their material obligations under the Affiliate Agreements;
(c) Seller shall have delivered to the Title Company for the benefit of Purchaser all documents and deliveries required to be so delivered pursuant to Section 3.2;
(d) Seller shall have terminated the Management Agreement at Seller’s sole cost and expense;
(e) If applicable, to the extent Purchaser has not received the New Liquor Permits and has otherwise complied with Section 5.12, Seller or Licensee, as applicable, shall have entered into and executed the Interim Beverage Agreement;
(f) Concurrent Closing of this Agreement with closing Fee Letters. The obligation of each of the Affiliate Agreements shall have occurred, except for any Affiliate Agreement as you to which the closing is not occurring as a result fund your Purchase Percentage of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement Note Increase shall not also be a condition of the Closing under this Agreement;
(g) Purchaser or its operating lessee and Franchisor shall have executed and delivered the New Franchise Agreement, on terms (including respecting any PIP required by the Franchisor) acceptable to Purchaser in its sole and absolute discretion;
(h) Title Company shall have committed to issue the Title Insurance Policy for the Property, subject to the payment by Purchaser of any fees accuracy in all material respects, on and expenses respecting the Title Insurance Policy required to be paid by Purchaser under Section 3.5; and
(i) If pursuant to Section 5.13, Purchaser or its operating lessee has elected to enter into the Interim Hotel Management Agreement with Manager, Manager shall have duly executed and delivered the Interim Hotel Management Agreement. If any of the conditions set forth in this Section 13 are not satisfied as of the Scheduled Closing Datedate of such funding, other than as a result of Purchaser’s or any the representations and warranties contained herein and of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, then except as provided below, the Scheduled Closing Date shall be extended one time for thirty (30) days, and if the conditions are not satisfied statements made by the extended Scheduled Closing Date, other than as a result of Purchaser’s or Issuer in any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have the right to (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser under this Agreement (except those set forth in this Agreement that expressly survive a termination of this Agreement) shall terminate immediately, or (b) waive such condition(s) and proceed to Closing. For the sake of clarity, if the Scheduled Closing Date under any of the Affiliate Agreements is extended for thirty (30) days certificates furnished pursuant to the similar provision in Section 12 provisions hereof. Each funding of any a Note Increase hereunder shall constitute a representation and warranty by the Issuer that all of the Affiliate Agreements to allow for satisfaction of above conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Hilton approval are satisfied on and as of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day periodrespective Purchase Date.
Appears in 1 contract
Conditions of Purchaser’s Obligations. Purchaser’s obligations to consummate the transactions contemplated by this Agreement are conditioned upon the satisfaction (or written or deemed waiver by Purchaser) of each The obligation of the Purchaser to purchase Securities on the Closing Date as provided herein is subject to (x) the performance in all material respects by the Company of its covenants and other obligations hereunder and (y) to the following additional conditions:
(a) The representations and warranties and disclosures made by Seller in Section 6 shall be true and correct in all material respects when made and at the time of the Closing, subject to changes occurring in accordance with this Agreement disclosed in the bring down certificate;
(b) Seller shall have discharged its material obligations under this Agreement, and all the sellers under each of the Affiliate Agreements shall have discharged their material obligations under the Affiliate Agreements;
(c) Seller shall have delivered to the Title Company for the benefit of Purchaser all documents and deliveries required to be so delivered pursuant to Section 3.2;
(d) Seller shall have terminated the Management Agreement at Seller’s sole cost and expense;
(e) If applicable, to the extent Purchaser has not received the New Liquor Permits and has otherwise complied with Section 5.12, Seller or Licensee, as applicable, shall have entered into and executed the Interim Beverage Agreement;
(f) Concurrent Closing of this Agreement with closing of each of the Affiliate Agreements shall have occurred, except for any Affiliate Agreement as to which the closing is not occurring as a result of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement shall not be a condition of the Closing under this Agreement;
(g) Purchaser or its operating lessee and Franchisor shall have executed and delivered the New Franchise Agreement, on terms (including respecting any PIP required by the Franchisor) acceptable to Purchaser in its sole and absolute discretion;
(h) Title Company shall have committed to issue the Title Insurance Policy for the Property, subject to the payment by Purchaser of any fees and expenses respecting the Title Insurance Policy required to be paid by Purchaser under Section 3.5; andEnhancedView Imagery Acquisition Contract.
(i) If The EnhancedView Imagery Acquisition Contract shall have been awarded to the Company or one of its wholly-owned subsidiaries in the initial award process under the EnhancedView Imagery Acquisition Solicitation on or prior to September 30, 2010 (or such later date as the Purchaser may from time to time designate in writing to the Company) (such date, the “Award Outside Date”); (ii) the award of the EnhancedView Imagery Acquisition Contract to the Company shall have been made on terms materially consistent with the Company’s Bid Disclosures in a definitive, final decision for which the GAO bid protest period has expired and shall be in full force and effect; (iii) no Litigation against such award shall be pending or threatened (including any bid protest before the GAO or any proceeding before any applicable Governmental Authority) (and, in the case of a protest before the GAO, such protest shall have been resolved in a binding and final manner by the GAO) and such award shall not be stayed pursuant to any such protest or other Litigation; (iv) the EnhancedView Imagery Acquisition Contract shall not have been amended, supplemented, waived or otherwise modified since the date of its award to the Company in any material respect that is adverse to the interests of the Purchaser; (v) in the event that the EnhancedView Imagery Acquisition Contract is awarded in the initial award process under the EnhancedView Imagery Acquisition Solicitation to a party other than the Company, then the Purchaser shall not have given notice of its intent to terminate its obligations pursuant to Section 5.13, Purchaser or its operating lessee has elected to enter into 4(g); and (vi) if the Interim Hotel Management Agreement with Manager, Manager EnhancedView Imagery Acquisition Contract shall have duly executed and delivered been awarded to the Interim Hotel Management Agreement. If any of the conditions set forth in this Section 13 are not satisfied as of the Scheduled Closing Date, other than as Company on a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, then except as provided belowNon-Conforming Basis, the Scheduled Closing Date shall be extended one time for thirty (30) days, and if the conditions are not satisfied by the extended Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have given written notice to the right Company of its exercise of its option to (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser under this Agreement (except those set forth in this Agreement that expressly survive a termination of this Agreement) shall terminate immediately, or (b) waive such condition(s) and proceed to Closing. For the sake of clarity, if the Scheduled Closing Date under any purchase 80,000 shares of the Affiliate Agreements is extended for thirty (30) days Securities pursuant to the similar provision in Section 12 of any of the Affiliate Agreements to allow for satisfaction of conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Hilton approval of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day period4(g).
Appears in 1 contract
Sources: Purchase Agreement (GeoEye, Inc.)
Conditions of Purchaser’s Obligations. Purchaser’s obligations The obligation of the Purchasers to consummate purchase Senior Notes hereunder is subject to the following conditions:
a. All of the representations and warranties of the Company contained in this Agreement shall be true and correct on the date hereof, the Closing Date, and on each Exempt Resales Closing Date, as applicable, with the same force and effect as if made on and as of the date hereof. The Company shall have performed or complied with all of the agreements herein contained and required to be performed or complied with by it at or prior to the Closing Date and each Exempt Resales Closing Date, as applicable.
b. The Initial Offering Memorandum shall have been printed and copies distributed to DLJ and the Purchasers not later than 10:00 p.m. New York City time on April 28, 1999.
c. With respect solely to each Resale Closing Date, the Offering Memorandum shall have been printed and copies distributed to DLJ and the Purchasers not later than as required to effect Exempt Resales as reasonably specified by you after the Date of this Agreement or at such later date and time as to which you may agree, and no stop order suspending the qualification or exemption from qualification of any of the Senior Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
d. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, or Exempt Sales Closing Date, as applicable, prevent the issuance or sale of any of the Senior Notes; no action, suit or proceeding shall be pending against or affecting or, to the knowledge of the Company, threatened against, the Company or any of the Subsidiaries before any court or arbitrator or any governmental body, agency or official that, if adversely determined, would prohibit, interfere with or adversely affect the issuance or sale of the Senior Notes or would have a Material Adverse Effect or in any manner draw into question the validity of any of the Transaction Documents; and no stop order, injunction, restraining order, or order of any nature preventing the use of the Initial Offering Memorandum, any Preliminary Offering Memorandum or any Offering Memorandum, as applicable, or any amendment or supplement thereto, or any order asserting that any of the transactions contemplated by this Agreement are conditioned upon subject to the satisfaction registration requirements of the Act shall have been issued.
e. Subsequent to the effective date of this Agreement and prior to the applicable Exempt Resale, there shall not have occurred (i) any change, or written any development involving a prospective change, in or deemed waiver affecting the condition (financial or other), business, properties, net worth, or results of operations of the Company or the Subsidiaries not contemplated by Purchaserthe Initial Offering Memorandum, or the applicable Offering Memorandum which, would materially adversely affect the market for the Senior Notes or (ii) any event or development relating to or involving the Company or any officer or director of the Company which makes any statement made in the Initial Offering Memorandum or the applicable Offering Memorandum untrue in any material respect which, in the opinion of the Company and its counsel or DLJ and the Purchasers and their counsel, requires the making of any addition to or change in the Initial Offering Memorandum or the applicable Offering Memorandum in order to make the statements therein not misleading, if amending or supplementing the Initial Offering Memorandum to reflect such event or development would in the opinion of DLJ and the Purchasers, materially adversely affect the market for the Senior Notes.
f. DLJ and the Purchasers shall have received on the Closing Date and each Exempt Resales Closing Date, an opinion of Holme Roberts & Owen LLP, ▇▇▇▇▇▇▇ ▇▇▇ th▇ ▇▇mpany, dated the Closing Date and each Exempt Resales Closing Date and addressed to you, to the effect that:
i. The Company is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware with full corporate power and authority to own lease and operate its properties and to conduct its business as described in the Initial Offering Memorandum (and any amendment or supplement thereto) and, as applicable, the Offering Memorandum, and, based solely on certificates from and correspondence with public officials, is qualified to do business and is in good standing in the states Colorado and Delaware;
ii. Each of UIPI and UIHE (collectively, the "Designated Subsidiaries") and each of the corporate Subsidiaries incorporated in the United States (the "U.S. Subsidiaries") is a corporation duly organized and validly existing in good standing under the laws of the jurisdiction of its incorporation, with full power and authority to own, lease, and operate its properties and to conduct its business as described in the Initial Offering Memorandum (and any amendment or supplement thereto) and, as applicable, the Offering Memorandum; and all the outstanding shares of capital stock of each of the following conditions:Designated Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and, except as set forth in the Initial Offering Memorandum, are owned by the Company directly free and clear, to the best knowledge of such counsel after reasonable inquiry, of any security interest, lien, adverse claim, equity or other encumbrance;
iii. All the outstanding shares of capital stock or other equity interest of each of the U.S. Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights (awhether provided pursuant to Transaction Documents or, to the best knowledge of such counsel, after due inquiry, contractually), and, except as set forth in the Initial Offering Memorandum, and, as applicable, the Offering Memorandum, are owned by the Company directly, or indirectly through one of the U.S. Subsidiaries, free and clear, to the best knowledge of such counsel after due inquiry, of any security interest, lien, adverse claim, equity or other encumbrance;
iv. The authorized and outstanding capital stock of the Company is as set forth under the caption "Capitalization" in the Initial Offering Memorandum or the applicable Offering Memorandum; and the Company's ownership interest with respect to each of the Designated Subsidiaries is as described in the Initial Offering Memorandum or the applicable Offering Memorandum;
v. All of the outstanding shares of capital stock of the Company have been duly authorized and validly issued, and are fully paid and nonassessable;
vi. The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under each of the Transaction Documents and to consummate the transactions contemplated thereby, including, without limitation, with the corporate power and authority to issue, sell and deliver the Senior Notes as contemplated by this Agreement and to perform its obligations hereunder and thereunder;
vii. The Company has the corporate power and authority to enter into this Agreement and the Fee Agreement, and to issue, sell and deliver the Senior Notes to the Purchasers as provided herein, and each of this Agreement and the Fee Agreement, been duly authorized, executed and delivered by the Company and is a valid, legal and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement of rights to indemnity and contribution hereunder and thereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Company's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general principles of equity, regardless of whether enforcement is sought in a proceeding at law or in equity;
viii. The Company has the corporate power and authority to execute, deliver and perform its respective obligations under the Senior Notes;
ix. The Senior Notes and the Indenture have been duly authorized, executed and delivered by the Company;
x. The Company has duly and validly authorized, executed and delivered the Indenture and (assuming the due authorization, execution and delivery thereof by the Trustee) the Indenture is a valid and legally binding obligation of the Company, enforceable against the Company in accordance with their terms, except (A) as such enforcement may be limited by (y) bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally, or (z) general principles of equity, regardless of whether enforcement is sought in a proceeding at law or in equity, and (B) to the extent that a waiver of rights under any usury laws may be unenforceable. The representations and warranties and disclosures made by Seller in Section 6 shall be true and correct Indenture conforms as to legal matters in all material respects when made and at to the time of the Closing, subject to changes occurring in accordance with this Agreement disclosed summary description thereof in the bring down certificate;
(b) Seller shall have discharged its material obligations under this Agreement, and all the sellers under each of the Affiliate Agreements shall have discharged their material obligations under the Affiliate Agreements;
(c) Seller shall have delivered to the Title Company for the benefit of Purchaser all documents and deliveries required to be so delivered pursuant to Section 3.2;
(d) Seller shall have terminated the Management Agreement at Seller’s sole cost and expense;
(e) If applicable, to the extent Purchaser has not received the New Liquor Permits and has otherwise complied with Section 5.12, Seller or LicenseeInitial Offering Memorandum and, as applicable, shall have entered into and executed the Interim Beverage AgreementOffering Memorandum;
xi. The Senior Notes have been duly and validly authorized for issuance and sale to the Purchasers by the Company pursuant to this Agreement and, when issued and authenticated in accordance with the terms of the Indenture and delivered against payment therefor in accordance with the terms hereof, will be the valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, except (fA) Concurrent as such enforcement may be limited by (y) bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally, or (z) general principles of equity, regardless of whether enforcement is sought in a proceeding at law or in equity, and (B) to the extent that a waiver of rights under any usury laws may be unenforceable. The Senior Notes, when issued, authenticated and delivered, will conform as to legal matters in all material respects to the summary description thereof in the Initial Offering Memorandum and, as applicable, the Offering Memorandum;
xii. The Exchange Notes have been duly and validly authorized for issuance by the Company and, when issued and authenticated in accordance with the terms of the Indenture and the Registration Rights Agreement, will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, except (A) as such enforcement may be limited by (y) bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally, or (z) general principles of equity, regardless of whether enforcement is sought in a proceeding at law or in equity, and (B) to the extent that a waiver of rights under any usury laws may be unenforceable;
xiii. The Registration Rights Agreement has been duly and validly authorized, executed and delivered by the Company, and is a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except (A) as such enforcement may be limited by (y) bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and (z) general principles of equity, regardless of whether enforcement is sought in a proceeding at law or in equity and (B) such counsel need express no opinion as to the enforceability of the indemnification or contribution provisions contained in Section 7 of the Registration Rights Agreement. The Registration Rights Agreement conforms, as to legal matters, in all material respects to the summary description thereof in the Initial Offering Memorandum and, as applicable, in the Offering Memorandum;
xiv. When the Senior Notes are issued and delivered pursuant to this Agreement and at each applicable Exempt Resale Closing Date, none of the Senior Notes will be of the same class (within the meaning of Rule 144A under the Act) as securities of the Company that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system;
xv. Neither the Company nor any of the Designated Subsidiaries nor any U.S. Subsidiary is in violation of its respective certificate or articles of incorporation or bylaws, or other organization documents, or to the best knowledge of such counsel after reasonable inquiry, is in material default in the performance of any obligation, agreement or condition contained in any permit or any bond, debenture, note or other evidence of indebtedness, except as may be disclosed in the Initial Offering Memorandum and, as applicable, in the Offering Memorandum;
xvi. Registration of the Senior Notes under the Act or qualification of the Indenture under the Trust Indenture Act of 1939, as amended, is not required in connection with the offer, sale and delivery of the Senior Notes to the Purchasers or the resale of the Senior Notes pursuant to the terms of this Agreement, including pursuant to the applicable Exempt Resale, it being understood that in rendering this opinion such counsel may assume the accuracy of the representations of the Purchasers and the Company contained herein and that the offer, sale and delivery of the Senior Notes have been made as contemplated by this Agreement with closing and the Initial Offering Memorandum and the applicable Offering Memorandum;
xvii. The execution, delivery and performance by the Company of each of the Affiliate Agreements shall have occurredTransaction Documents, except for any Affiliate Agreement as to which the closing is not occurring as a result of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement shall not be a condition issuance and sale of the Closing under this Agreement;
(g) Purchaser Senior Notes, and the consummation of the transactions contemplated hereby and thereby, including the use of proceeds and the Exempt Resales, will not violate, conflict with or its operating lessee and Franchisor shall have executed and delivered the New Franchise Agreement, on terms (including respecting any PIP required by the Franchisor) acceptable to Purchaser in its sole and absolute discretion;
(h) Title Company shall have committed to issue the Title Insurance Policy for the Property, subject to the payment by Purchaser constitute a breach of any fees and expenses respecting the Title Insurance Policy required to be paid by Purchaser under Section 3.5; and
(i) If pursuant to Section 5.13, Purchaser or its operating lessee has elected to enter into the Interim Hotel Management Agreement with Manager, Manager shall have duly executed and delivered the Interim Hotel Management Agreement. If any of the conditions set forth terms or provisions of, or a default (or an event that with notice or the lapse of time, or both, would constitute a default) under, or require consent under, or result in this Section 13 are not satisfied as the imposition of a lien or encumbrance on any assets or properties of the Scheduled Closing Date, other than as a result of Purchaser’s Company or any of its affiliate’s own actions subsidiaries, or failure to act or a breach an acceleration of Purchaser’s obligations under this Agreementindebtedness pursuant to, then except as provided below, (A) the Scheduled Closing Date shall be extended one time for thirty (30) days, and if organizational documents of the conditions are not satisfied by the extended Scheduled Closing Date, other than as a result of Purchaser’s Company or any of its affiliate’s own actions subsidiaries, (B) any bond, debenture, note, indenture, mortgage, deed of trust, license or failure other agreement or instrument, known to act such counsel after reasonable inquiry, to which the Company or any of its subsidiaries is a breach party or by which any of Purchaser’s obligations under this Agreementthem or their property is or may be bound, Purchaser shall have (C) any U.S. law, statute, rule or regulation applicable to the right to (a) terminate this AgreementCompany, in which event any of the Deposit shall be returned to Purchaser and all other rights and obligations U.S. Subsidiaries or any of Seller and Purchaser under this Agreement (except those set forth in this Agreement that expressly survive a termination of this Agreement) shall terminate immediatelytheir assets or properties, or (bD) waive any judgment, order or decree of any U.S. court or governmental agency or U.S. authority, known to such condition(s) and proceed to Closing. For counsel after reasonable inquiry, having jurisdiction over the sake of clarityCompany, if the Scheduled Closing Date under any of the Affiliate Agreements U.S. Subsidiaries or their assets or properties, except such conflicts or violations as would not individually or in the aggregate be reasonably expected to have a Material Adverse Effect. No consent, approval, authorization or order of, or filing, registration, qualification, license or permit of or with, any court or governmental agency, body or administrative agency in the United States is extended required for thirty the execution, delivery and performance of this Agreement or the other Transaction Documents, except (30subject to clause (xvi) days pursuant above) such as have been obtained prior to the similar provision Date hereof (or, in Section 12 of any the case of the Affiliate Agreements Registration Rights Agreement, are planned to allow for satisfaction of conditions thereinbe obtained or made under the Act, the Scheduled Closing Date under Trust Indenture Act and state securities or Blue Sky laws and regulations or such as may be required by the NASD). In rendering the opinions required in this clause (xvii), such counsel may rely on the accuracy of the representations of the Purchasers and the Company contained in this Agreement. No consents or waivers from any other person are required for the execution, delivery and performance of this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, and the Scheduled Closing Date shall not be extended for thirty (30) days, if either other Transaction Documents and the Hilton approval consummation of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day period.t
Appears in 1 contract
Sources: Note Purchase Agreement (United International Holdings Inc)
Conditions of Purchaser’s Obligations. Purchaser’s The obligations of each Purchaser to consummate purchase the transactions contemplated by Shares pursuant to this Agreement are conditioned upon subject to the satisfaction (fulfillment or written waiver, on or deemed waiver by Purchaser) before the Closing Date, of each of the following conditions, the waiver of which shall be in writing and shall not be effective against any Purchaser who does not consent to such waiver, which consent must be given in writing:
(a) The representations and warranties of the Company and disclosures made by Seller the Company Warrantors contained in Section 6 Article 3 which are qualified as to materiality shall be true and correct correct, and each such representation and warranty that is not so qualified shall be true and correct, in all material respects when made respects, in each case, on and at the time as of the ClosingClosing Date as if made on and as of the Closing Date (except for such representations and warranties expressly stated herein to be applicable solely as to a specified date which were true and correct as of such date). The representations and warranties of the Selling Shareholder contained in Article 2 which are qualified as to materiality shall be true and correct, subject and each such representation and warranty that is not so qualified shall be true and correct, in all material respects, in each case, on and as of the Closing Date as if made on and as of the Closing Date (except for such representations and warranties expressly stated herein to changes occurring in accordance with this Agreement disclosed in the bring down certificate;be applicable solely as to a specified date which were true and correct as of such date).
(b) Seller Each of the Company, the Selling Shareholder and the Company Warrantors shall have discharged its performed and complied with, in all material respects, all agreements, obligations under this Agreement, and all conditions contained in the sellers under each of Transaction Documents that are required to be performed or complied with by it on or before the Affiliate Agreements shall have discharged their material obligations under the Affiliate Agreements;Closing Date.
(c) Seller The Company shall have delivered to the Title Purchasers (i) a certificate of an officer of the Company for regarding the benefit Restated M&A and Board of Purchaser all documents Directors and deliveries required shareholders resolutions relating to be so the transactions contemplated under the Transaction Documents, and (ii) good standing certificates of the Company and its Subsidiaries (to the extent applicable). The Selling Shareholder shall have delivered pursuant to Section 3.2;the Purchasers (i) a certificate of an officer or director of the Selling Shareholder regarding the board of directors and shareholders resolutions relating to the transactions contemplated under this Agreement and the Shareholders Agreement, and (ii) a good standing certificate of the Selling Shareholder (to the extent applicable).
(d) Seller The Chief Executive Officer of the Company and an officer or a director of each Company Warrantor shall have terminated delivered to the Management Agreement Purchasers at Seller’s sole cost the Closing, a certificate dated the Closing Date stating that the conditions specified in Sections 5.2(a) and expense;5.2(b) above (insofar as such conditions pertain to the Company and the Company Warrantors) have been fulfilled. An officer or director of the Selling Shareholder shall have delivered to the Purchasers at the Closing a certificate dated the Closing Date stating that the conditions specified in Sections 5.2(a) and 5.2(b) above (insofar as such conditions pertain to the Selling Shareholder) have been fulfilled.
(e) If applicable, The Purchasers shall have received from PRC counsel to the extent Purchaser has not received Company, an opinion dated as of the New Liquor Permits Closing Date (the "PRC Opinion") and has otherwise complied with Section 5.12from Cayman Islands counsel to the Sellers, Seller or Licenseean opinion dated as of the Closing Date (the "Caymans Opinion"). Each of the PRC Opinion and the Caymans Opinion shall be in substantially the form attached hereto as Exhibit H and Exhibit H-1, as applicable, shall have entered into and executed the Interim Beverage Agreement;respectively.
(f) Concurrent Closing To the extent applicable, the requisite number of this Agreement with closing of each shareholders of the Affiliate Agreements shall have occurred, except for any Affiliate Agreement as to which the closing is not occurring as a result of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement shall not be a condition of the Closing under this Agreement;
(g) Purchaser or its operating lessee and Franchisor Company shall have executed and delivered a written consent and waiver as of the New Franchise AgreementClosing Date, in form and substance reasonably satisfactory to the Purchasers, on terms behalf of all shareholders of the Company, approving the transactions contemplated under the Transaction Documents and waiving all rights any such shareholder may have to receipt of notice of the transactions contemplated under the Transaction Documents and any applicable rights of consent, pre-emptive or participation rights, rights of first offer, rights of first refusal, co-sale rights or other similar rights any such shareholder may have with respect to the transactions contemplated under the Transaction Documents.
(including respecting any PIP required g) All agreements in connection with the restructuring by the FranchisorCompany (the "Restructuring") acceptable to Purchaser including, without limitation, those listed in its sole Exhibit I (each such an agreement, a "VIE Contract", and absolute discretion;collectively, the "VIE Contracts"), shall have been duly executed and delivered by the parties thereto and shall remain in full force and effect.
(h) Title The Company shall have committed provided the Investors with (A) substantially completed (to issue the Title Insurance Policy knowledge of the Company and the Company's Warrantors) drafts of the audited financial statements of the Company as of and for the Propertyyears ended December 31, subject 2006 and 2005, to be prepared in accordance with US GAAP and audited by one of the Big Four Accounting Firms, and (B) unaudited management accounts for each subsequent quarter up to the payment by Purchaser of any fees and expenses respecting the Title Insurance Policy required to be paid by Purchaser under Section 3.5; andClosing.
(i) If pursuant The Purchasers shall have completed their business, legal and financial due diligence to Section 5.13, Purchaser or its operating lessee has elected to enter into the Interim Hotel Management Agreement with Manager, Manager their reasonable satisfaction.
(j) ▇▇. ▇▇▇ Guanglin shall have duly executed signed and delivered an undertaking substantially in the Interim Hotel Management Agreement. If any of the conditions set forth in this Section 13 are not satisfied form attached hereto as of the Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, then except as provided below, the Scheduled Closing Date shall be extended one time for thirty (30) days, and if the conditions are not satisfied by the extended Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have the right to (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser under this Agreement (except those set forth in this Agreement that expressly survive a termination of this Agreement) shall terminate immediately, or (b) waive such condition(s) and proceed to Closing. For the sake of clarity, if the Scheduled Closing Date under any of the Affiliate Agreements is extended for thirty (30) days pursuant to the similar provision in Section 12 of any of the Affiliate Agreements to allow for satisfaction of conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Hilton approval of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day period.Exhibit J.
Appears in 1 contract
Conditions of Purchaser’s Obligations. Purchaser’s The obligations of the Purchasers to consummate purchase and pay for the transactions contemplated by Securities shall be subject to the accuracy, in all material respects, as of the date of this Agreement are conditioned upon and the Closing Date, of the representations and warranties of the Company contained herein and in the certificates of any officer of the Company or any of its subsidiaries pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to the following additional conditions:
(i) The Registration Statement shall be effective on the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under the 1933 Act or proceedings therefor instituted or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the satisfaction of counsel to the Purchasers. If the filing of a Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), such Prospectus shall have been filed within the manner and within the time period required by the 1933 Act and the 1933 Act Regulations.
(or written or deemed waiver by Purchaserii) The Conversion Securities shall have been approved for listing on the NYSE, subject to official notice of each issuance.
(iii) The Purchasers shall have received the favorable opinion of John ▇. ▇▇▇▇, ▇▇ecutive Vice President, General Counsel and Secretary of the following conditionsCompany, dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Purchasers, to the effect that:
(a) The representations Company has been duly incorporated and warranties is validly existing as a corporation under the laws of the State of Indiana.
(b) The Company has corporate power and disclosures authority to own, lease, and operate its properties and to conduct its business as described in the Prospectus.
(c) The Company is qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify or be in good standing would not result in a Material Adverse Effect.
(d) All of the issued and outstanding shares of capital stock of the Company have been duly authorized and are validly issued, fully paid and non-assessable.
(e) Each Significant Subsidiary has been duly incorporated and 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, lease and operate its properties and to conduct its business as described in the Prospectus, and is qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; all of the issued and outstanding capital stock of each Significant Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable, and, except as set forth in the Prospectus, all such shares are owned by the Company, directly or through its subsidiaries, free and clear of any material security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(f) All legally required proceedings in connection with the authorization and valid issuance of the Securities in accordance with this Agreement and the sale of the Securities in accordance with this Agreement and the Prospectus (other than the filing of post-issuance reports, the non-filing of which would not render the Securities invalid) have been taken, and all legally required orders, consents or other authorizations or approvals of any other public boards or bodies required to be obtained by the Company or any Significant Subsidiary (including, without limitation, any insurance regulatory agency or body) in connection with the authorization and valid issuance of the Securities in accordance with this Agreement and the sale of the Securities in accordance with this Agreement and the Prospectus (other than in connection with or in compliance with the provisions of the securities or Blue Sky laws of any jurisdictions, as to which no opinion need be expressed) have been obtained and are in full force and effect, except filings which may be required with various insurance departments, banking authorities or similar governmental authorities, if, by virtue of the issuance of PIK Dividends, the Purchasers and their Affiliates become owners of stock of the Company in excess of amounts specified by such departments or authorities, generally ten percent (10%) of the shares of Common Stock outstanding or deemed to be outstanding upon conversion of the Securities.
(g) The Registration Statement is effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Seller Rule 424(b); and, to the knowledge of counsel, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act, and no proceedings therefor have been initiated or threatened by the Commission.
(h) The Registration Statement, as of its effective date, and the Prospectus and each amendment or supplement thereto, as of its issue date (in Section 6 shall each case, other than the financial statements and the notes thereto, the financial schedules, and any other financial data included or incorporated by reference therein, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(i) Each of the documents incorporated by reference in the Registration Statement or Prospectus, at the time they were filed or last amended (other than the financial statements and the notes thereto, the financial schedules, and any other financial data included or incorporated by reference therein, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations, as applicable.
(j) The Common Stock and the Securities conform in all material respects to the descriptions thereof contained in the Prospectus and the Registration Statement.
(k) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that enforcement thereof may be limited by the Bankruptcy Exceptions.
(l) The issuance and sale of the Securities, in accordance with the provisions of this Agreement, and the issuance of the PIK Dividends and the Conversion Securities pursuant to the Amended Articles of Incorporation, have been duly authorized by the Company, and the Securities, when issued and delivered in accordance with the provisions of this Agreement, and the PIK Dividends and Conversion Securities, when issued pursuant to the Amended Articles of Incorporation, will be validly issued and fully paid and non-assessable and will conform in all material respects to the description thereof contained in the Prospectus; the issuance of the Securities is not subject to preemptive or other similar rights; the Conversion Securities have been approved for listing on the NYSE, upon official notice of issuance.
(m) The offer of the Securities as contemplated herein and in the Prospectus, the execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption "Use of Proceeds") and compliance by the Company with its obligations hereunder and thereunder have been authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of any of the terms or provisions of, or constitute a default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults, or liens, charges or encumbrances that would not result in a Material Adverse Effect or materially and adversely affect the Company's performance of its obligations under this Agreement) nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Significant Subsidiary or any of their assets, properties, or operations (except for such violations that would not result in a Material Adverse Effect or materially and adversely affect the Company's performance of its obligations under this Agreement), nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any Significant Subsidiary.
(n) To such counsel's knowledge, there are no statutes required to be described or incorporated by reference in the Registration Statement which are not described or incorporated by reference, and there are no legal or governmental proceedings pending or, to such counsel's knowledge, threatened which are required to be disclosed or incorporated by reference in the Registration Statement, other than those disclosed or incorporated by reference therein.
(o) To such counsel's knowledge, there are no contracts, indentures, mortgages, agreements, notes, leases or other instruments required to be described or referred to or incorporated by reference in the Registration Statement or to be filed as exhibits thereto other than those described or referred to or incorporated by reference therein or filed as exhibits thereto; the descriptions thereof or references thereto are true and correct in all material respects when made respects.
(p) The Company and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations issued by the appropriate federal, state, local or foreign regulatory agencies or bodies (including, without limitation, the Insurance Licenses) that are material to the Company and its subsidiaries taken as a whole and are necessary to conduct the business now conducted by them; the Company and its subsidiaries are in compliance with the terms and conditions of all such Insurance Licenses, except where the failure to so comply would not, singly or in the aggregate, result in a Material Adverse Effect; all of the Insurance Licenses are valid and in full force and effect, except where the invalidity of such Insurance Licenses or the failure of such Insurance Licenses to be in full force and effect would not result in a Material Adverse Effect or materially and adversely affect the Company's performance of its obligations under this Agreement; and neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Insurance Licenses which, singly or in the aggregate, may reasonably be expected to result in a Material Adverse Effect or to materially and adversely affect the Company's performance of its obligations under this Agreement.
(q) Neither the Company nor any of its subsidiaries is, and upon the consummation of the transactions contemplated in this Agreement and the application of the net proceeds from the Securities as described in the Prospectus will be, an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the 1940 Act. Moreover, such counsel shall confirm that nothing has come to such counsel's attention that causes such counsel to believe that the Registration Statement (except for financial statements and the notes thereto, the financial schedules and any other financial data included or incorporated by reference therein as to which such counsel need express no opinion), at the time it became effective or at the Closing Date, 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 or that the Prospectus (except for financial statements and the notes thereto, the financial schedules and any other financial data included or incorporated by reference therein as to which such counsel need express no opinion), on the date of issue or the Closing Date, included or includes 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 Closingcircumstances under which they were made, subject not misleading.
(iv) On the Closing Date, the Purchasers shall have received a certificate of the President or a Vice-President of the Company and of the Chief Financial Officer or Chief Accounting Officer of the Company, dated the Closing Date, to changes occurring in accordance with this Agreement disclosed in the bring down certificateeffect that:
(a) The Registration Statement has been declared effective, and no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of such officers, threatened by the Commission;
(b) Seller shall have discharged its material obligations under this Agreement, the representations and all the sellers under each warranties of the Affiliate Agreements shall have discharged their material obligations under Company in Article III of this Agreement are true and correct as though expressly made at and as of the Affiliate AgreementsClosing Date;
(c) Seller shall have delivered the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Title Company for the benefit of Purchaser all documents and deliveries required to be so delivered pursuant to Section 3.2;Closing Date; and
(d) Seller since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not in the ordinary course of business, except as set forth in the Prospectus (exclusive of any supplement thereto).
(v) On the Closing Date, PricewaterhouseCoopers LLP shall have terminated furnished to the Management Agreement at Seller’s sole cost Investor, Thom▇▇ ▇. ▇▇▇ ▇▇▇eign Fund IV, L.P. and expense;
(e) If applicableThom▇▇ ▇. ▇▇▇ ▇▇▇eign Fund IV-B, L.P. a letter, dated the Closing Date, in form and substance satisfactory to the Investor, to the extent Purchaser has not received the New Liquor Permits and has otherwise complied with Section 5.12, Seller or Licensee, as applicable, shall have entered into and executed the Interim Beverage Agreement;
(f) Concurrent Closing of this Agreement with closing of each of the Affiliate Agreements shall have occurred, except for any Affiliate Agreement as to which the closing is not occurring as a result of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement shall not be a condition of the Closing under this Agreement;
(g) Purchaser or its operating lessee and Franchisor shall have executed and delivered the New Franchise Agreement, on terms (including respecting any PIP required by the Franchisor) acceptable to Purchaser in its sole and absolute discretion;
(h) Title Company shall have committed to issue the Title Insurance Policy for the Property, subject to the payment by Purchaser of any fees and expenses respecting the Title Insurance Policy required to be paid by Purchaser under Section 3.5; and
(i) If pursuant to Section 5.13, Purchaser or its operating lessee has elected to enter into the Interim Hotel Management Agreement with Manager, Manager shall have duly executed and delivered the Interim Hotel Management Agreement. If any of the conditions effect set forth in this Section 13 are not satisfied as of the Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, then except as provided below, the Scheduled Closing Date shall be extended one time for thirty (30) days, and if the conditions are not satisfied by the extended Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have the right to (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser under this Agreement (except those set forth in this Agreement that expressly survive a termination of this Agreement) shall terminate immediately, or (b) waive such condition(s) and proceed to Closing. For the sake of clarity, if the Scheduled Closing Date under any of the Affiliate Agreements is extended for thirty (30) days pursuant to the similar provision in Section 12 of any of the Affiliate Agreements to allow for satisfaction of conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Hilton approval of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day periodExhibit A-2.
Appears in 1 contract
Conditions of Purchaser’s Obligations. Purchaser’s Your obligations hereunder shall be subject, in your discretion, to consummate the transactions contemplated by this Agreement are conditioned upon the satisfaction (or written or deemed waiver by Purchaser) of each condition that all representations and warranties of the Company herein are, at and as of the date hereof and the date of the Closing (as if made on and as of such dates), true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed in all material respects, and the following additional conditions, it being understood, however, that the representation and warranty in Section 1(e) and the condition in Section 5(g) shall extend only to the Time of Mailing:
(a) The representations and warranties and disclosures made by Seller in Section 6 Registration Statement shall be true and correct in all material respects when made and at have become effective not later than 5:30 P.M., New York City time, on the time of the Closing, subject to changes occurring in accordance with this Agreement disclosed in the bring down certificate;date hereof.
(b) Seller On the date the Registration Statement becomes effective (prior to the mailing of the Notice of Redemption) and on the Closing Date you shall have discharged its material obligations under this Agreement, and all the sellers under each of the Affiliate Agreements shall have discharged their material obligations under the Affiliate Agreements;received:
(c1) Seller shall have delivered The written opinion of Thom▇▇▇▇ & ▇nig▇▇, ▇.C., counsel for the Company, dated the date the Registration Statement becomes effective and the Closing Date, respectively, substantially to the Title Company for the benefit of Purchaser all documents and deliveries required to be so delivered pursuant to Section 3.2;
(d) Seller shall have terminated the Management Agreement at Seller’s sole cost and expense;
(e) If applicable, to the extent Purchaser has not received the New Liquor Permits and has otherwise complied with Section 5.12, Seller or Licensee, as applicable, shall have entered into and executed the Interim Beverage Agreement;
(f) Concurrent Closing of this Agreement with closing of each of the Affiliate Agreements shall have occurred, except for any Affiliate Agreement as to which the closing is not occurring as a result of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement shall not be a condition of the Closing under this Agreement;
(g) Purchaser or its operating lessee and Franchisor shall have executed and delivered the New Franchise Agreement, on terms (including respecting any PIP required by the Franchisor) acceptable to Purchaser in its sole and absolute discretion;
(h) Title Company shall have committed to issue the Title Insurance Policy for the Property, subject to the payment by Purchaser of any fees and expenses respecting the Title Insurance Policy required to be paid by Purchaser under Section 3.5; andeffect that:
(i) If pursuant The Company and each of Noble Gas Marketing, Inc., Noble Trading, Inc., Samedan Oil Corporation and Energy Development Corporation ("EDC") (each, a Material Subsidiary) has been duly incorporated and is an existing corporation in good standing under the laws of its jurisdiction of incorporation and has full corporate power and authority to Section 5.13conduct its business as described in the Registration Statement and Prospectus; and all of the outstanding shares of capital stock of each Material Subsidiary have been duly authorized and validly issued, Purchaser are fully paid and non-assessable and (except as otherwise stated in the Registration Statement) are owned beneficially by the Company subject to no security interest or its operating lessee has elected to enter other encumbrance or claim affecting transferability or voting;
(ii) The Notes are convertible into Common Stock of the Interim Hotel Management Agreement Company in accordance with Managerthe terms of the Indenture; and the shares of such Common Stock initially issuable upon conversion of the Notes have been duly authorized and reserved for issuance upon such conversion, Manager shall have duly executed and, when so issued and delivered against payment therefor in accordance with the Interim Hotel Management Agreement. If any Indenture, will be validly issued, fully paid and non-assessable; all of the conditions outstanding shares of Common Stock of the Company have been duly authorized and validly issued, are fully paid, non-assessable and not subject to any preemptive or similar right; the authorized and outstanding capital stock of the Company is as set forth in this Section 13 are not satisfied as the Registration Statement and the Prospectus under the heading "Capitalization"; the description of the Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, then except as provided below, the Scheduled Closing Date shall be extended one time for thirty (30) days, and if the conditions are not satisfied by the extended Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have the right to (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser under this Agreement (except those set forth in this Agreement that expressly survive a termination of this Agreement) shall terminate immediately, or (b) waive such condition(s) and proceed to Closing. For the sake of clarity, if the Scheduled Closing Date under any of the Affiliate Agreements is extended for thirty (30) days pursuant to the similar provision in Section 12 of any of the Affiliate Agreements to allow for satisfaction of conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Hilton approval of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day period.Common
Appears in 1 contract
Conditions of Purchaser’s Obligations. The Purchaser’s obligations obligation to consummate purchase and pay for the transactions contemplated by this Agreement are conditioned upon Bond which is to be delivered as the satisfaction (or written or deemed waiver by Purchaser) of each initial installment hereunder is subject to the fulfillment of the following conditionsconditions at or before such delivery:
(a) The representations Lease, the Guaranty, the Indenture and warranties this Bond Purchase Agreement shall have been duly authorized, executed and disclosures made delivered by Seller the respective parties thereto, in Section 6 substantially the forms heretofore approved by the Purchaser, with only such changes therein as the Purchaser, the Issuer and the Company shall be true and correct in all material respects when made and at the time of the Closing, subject to changes occurring in accordance with this Agreement disclosed in the bring down certificatemutually agree upon;
(b) Seller The Bond to be initially delivered shall have discharged its material obligations under this Agreementbeen duly authorized, executed and all authenticated in accordance with the sellers under each provisions of the Affiliate Agreements shall have discharged their material obligations under the Affiliate AgreementsIndenture;
(c) Seller The Purchaser shall have delivered to received the Title Company for following documents:
(i) Executed counterparts of the benefit of Purchaser all documents Lease, the Guaranty and deliveries required to be so delivered pursuant to Section 3.2the Indenture;
(dii) Seller shall have terminated Opinions dated as of the Management Agreement at Seller’s sole cost date of delivery of the Bond to be initially delivered of (A) Counsel for the Issuer in substantially the form of that which is attached hereto as Exhibit “B”; (B) Bond Counsel in substantially the form of that which is attached hereto as Exhibit “C”; and expense(C) Counsel for the Company, as lessee and as guarantor, in substantially the form of that which is attached hereto as Exhibit “D”;
(eiii) If applicableA certificate dated as of the date of delivery of the Bond to be initially delivered, signed by the Chairman or Vice Chairman and the Secretary-Treasurer of the Issuer and in form and substance satisfactory to the Purchaser, to the extent Purchaser has not received effect that to the New Liquor Permits best of the information, knowledge and has otherwise complied with Section 5.12belief of such officers, Seller or Licensee, as applicable, shall have entered into and executed the Interim Beverage Agreement;
(f) Concurrent Closing of this Agreement with closing of each of the Affiliate Agreements shall have occurredrepresentations and warranties set forth in Paragraph 4 hereof is true, except for any Affiliate Agreement accurate and complete in all material respects as to which the closing is not occurring as a result of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement shall not be a condition of the Closing under date of delivery of the Bond to be initially delivered and that the Issuer has complied with each of its covenants and agreements required in this Agreement;
(g) Purchaser Bond Purchase Agreement to be complied with at or its operating lessee and Franchisor shall have executed and delivered the New Franchise Agreement, on terms (including respecting any PIP required by the Franchisor) acceptable to Purchaser in its sole and absolute discretion;
(h) Title Company shall have committed to issue the Title Insurance Policy for the Property, subject prior to the payment by Purchaser date of any fees and expenses respecting delivery of the Title Insurance Policy required Bond to be paid by Purchaser under Section 3.5initially delivered; and
(iiv) If pursuant to Section 5.13Such additional opinions, certificates, instruments and other documents as the Purchaser or its operating lessee has elected counsel may reasonably request to enter into evidence compliance with applicable law, as of the Interim Hotel Management Agreement with Manager, Manager shall have duly executed date of delivery of the Bond to be initially delivered. The Purchaser’s obligation to purchase and delivered the Interim Hotel Management Agreement. If pay for any of the conditions set forth in this Section 13 are not satisfied as Bonds at any time or from time to time after the delivery of the Scheduled Closing DateBond to be initially delivered, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreementherein provided, then except as provided below, the Scheduled Closing Date shall be extended one time for thirty (30) days, and if the conditions are not satisfied by the extended Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have the right to (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser under this Agreement (except those set forth in this Agreement that expressly survive a termination of this Agreement) shall terminate immediately, or (b) waive such condition(s) and proceed to Closing. For the sake of clarity, if the Scheduled Closing Date under any of the Affiliate Agreements is extended for thirty (30) days pursuant subject to the similar provision in Section 12 due execution, authentication and delivery to the Purchaser of any of the Affiliate Agreements to allow for satisfaction of conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Hilton approval of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day periodsuch pertinent Bond.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions of Purchaser’s Obligations. Purchaser’s The obligations of the Purchasers to consummate purchase and pay for the transactions contemplated by Securities shall be subject to the accuracy, in all material respects, as of the date of this Agreement are conditioned upon and the Closing Date, of the representations and warranties of the Company contained herein and in the certificates of any officer of the Company or any of its subsidiaries pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to the following additional conditions:
(i) The Registration Statement shall be effective on the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under the 1933 Act or proceedings therefor instituted or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the satisfaction of counsel to the Purchasers. If the filing of a Prospectus, or any supplement thereto, is require pursuant to Rule 424(b), such Prospectus shall have been filed within the manner and within the time period required by the 1933 Act and the 1933 Act Regulations.
(or written or deemed waiver by Purchaserii) of each The Common Stock issuable upon conversion of the following conditionsSecurities shall have been approved for listing on the NYSE, subject to official notice of issuance.
(iii) The Purchasers shall have received the favorable opinion of J▇▇▇ ▇. ▇▇▇▇, Executive Vice President, General Counsel and Secretary of the Company, dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Purchasers, to the effect that:
(a) The representations Company has been duly incorporated and warranties is validly existing as a corporation under the laws of the State of Indiana.
(b) The Company has corporate power and disclosures authority to own, lease, and operate its properties and to conduct its business as described in the Prospectus.
(c) The Company is qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify or be in good standing would not result in a Material Adverse Effect.
(d) All of the issued and outstanding shares of capital stock of the Company have been duly authorized and are validly issued, fully paid and non-assessable.
(e) Each Significant Subsidiary has been duly incorporated and 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, lease and operate its properties and to conduct its business as described in the Prospectus, and is qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; all of the issued and outstanding capital stock of each Significant Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable, and, except as set forth in the Prospectus, all such shares are owned by the Company, directly or through its subsidiaries, free and clear of any material security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(f) All legally required proceedings in connection with the authorization and valid issuance of the Securities in accordance with this Agreement and the sale of the Securities in accordance with this Agreement and the Prospectus (other than the filing of post-issuance reports, the non-filing of which would not render the Securities invalid) have been taken, and all legally required orders, consents or other authorizations or approvals of any other public boards or bodies (including, without limitation, any insurance regulatory agency or body) in connection with the authorization and valid issuance of the Securities in accordance with this Agreement and the sale of the Securities in accordance with this Agreement and the Prospectus (other than in connection with or in compliance with the provisions of the securities or Blue Sky laws of any jurisdictions, as to which no opinion need be expressed) have been obtained and are in full force and effect, except filings which may be required with various state insurance departments or similar governmental authorities, if, by virtue of the issuance of PIK Dividends, the Purchasers and their Affiliates become owners of stock of the Company in excess of amounts specified by such states, generally ten percent (10%) of the shares of Common Stock outstanding or deemed to be outstanding upon conversion of the Securities.
(g) The Registration Statement is effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Seller Rule 424(b); and, to the knowledge of counsel, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act, and no proceedings therefor have been initiated or threatened by the Commission.
(h) The Registration Statement, as of its effective date, and the Prospectus and each amendment or supplement thereto, as of its issue date (in Section 6 shall each case, other than the financial statements and the notes thereto, the financial schedules, and any other financial data included or incorporated by reference therein, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(i) Each of the documents incorporated by reference in the Registration Statement or Prospectus, at the time they were filed or last amended (other than the financial statements and the notes thereto, the financial schedules, and any other financial data included or incorporated by reference therein, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations, as applicable.
(j) The Common Stock and the Securities conform in all material respects to the descriptions thereof contained in the Prospectus and the Registration Statement.
(k) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that enforcement thereof may be limited by the Bankruptcy Exceptions.
(l) The issuance and sale of the Securities, in accordance with the provisions of this Agreement, and the issuance of the shares of Common Stock upon conversion of the Securities pursuant to the Amended Articles of Incorporation, have been duly authorized by the Company, and the Securities, when issued and delivered in accordance with the provisions of this Agreement, and the shares of Common Stock issued upon conversion of the Securities pursuant to the Amended Articles of Incorporation, will be validly issued and fully paid and non-assessable and will conform in all material respects to the description thereof contained in the Prospectus; the issuance of the Securities is not subject to preemptive or other similar rights; the Securities and the shares of Common Stock issued upon conversion of the Securities have been approved for listing on the NYSE, upon official notice of issuance.
(m) The offer of the Securities as contemplated herein and in the Prospectus, the execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption "Use of Proceeds") and compliance by the Company with its obligations hereunder and thereunder hav been authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of any of the terms or provisions of, or constitute a default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults, or liens, charges or encumbrances that would not result in a Material Adverse Effect or materially and adversely affect the Company's performance of its obligations under this Agreement) nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Significant Subsidiary or any of their assets, properties, or operations (except for such violations that would not result in a Material Adverse Effect or materially and adversely affect the Company's performance of its obligations under this Agreement), nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any Significant Subsidiary.
(n) To such counsel's knowledge, there are no statutes required to be described or incorporated by reference in the Registration Statement which are not described or incorporated by reference, and there are no legal or governmental proceedings pending or, to such counsel's knowledge, threatened which are required to be disclosed or incorporated by reference in the Registration Statement, other than those disclosed or incorporated by reference therein.
(o) To such counsel's knowledge, there are no contracts, indentures, mortgages, agreements, notes, leases or other instruments required to be described or referred to or incorporated by reference in the Registration Statement or to be filed as exhibits thereto other than those described or referred to or incorporated by reference therein or filed as exhibits thereto; the descriptions thereof or references thereto are true and correct in all material respects when made respects.
(p) The Company and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations issued by the appropriate federal, state, local or foreign regulatory agencies or bodies (including, without limitation, the Insurance Licenses) that are material to the Company and its subsidiaries taken as a whole and are necessary to conduct the business now conducted by them; the Company and its subsidiaries are in compliance with the terms and conditions of all such Insurance Licenses, except where the failure to so comply would not, singly or in the aggregate, result in a Material Adverse Effect; all of the Insurance Licenses are valid and in full force and effect, except where the invalidity of such Insurance Licenses or the failure of such Insurance Licenses to be in full force and effect would not result in a Material Adverse Effect or materially and adversely affect the Company's performance of its obligations under this Agreement; and neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Insurance Licenses which, singly or in the aggregate, may reasonably be expected to result in a Material Adverse Effect or to materially and adversely affect the Company's performance of its obligations under this Agreement.
(q) Neither the Company nor any of its subsidiaries is, and upon the consummation of the transactions contemplated in this Agreement and the application of the net proceeds from the Securities as described in the Prospectus will be, an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the 1940 Act. Moreover, such counsel shall confirm that nothing has come to such counsel's attention that causes such counsel to believe that the Registration Statement (except for financial statements and the notes thereto, the financial schedules and any other financial data included or incorporated by reference therein as to which such counsel need express no opinion), at the time it became effective or at the Closing Date, 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 or that the Prospectus (except for financial statements and the notes thereto, the financial schedules and any other financial data included or incorporated by reference therein as to which such counsel need express no opinion), on the date of issue or the Closing Date, included or includes 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 Closingcircumstances under which they were made, subject not misleading.
(iv) On the Closing Date, the Purchasers shall have received a certificate of the President or a Vice-President of the Company and of the Chief Financial Officer or Chief Accounting Officer of the Company, dated the Closing Date, to changes occurring in accordance with this Agreement disclosed in the bring down certificateeffect that:
(a) The Registration Statement has been declared effective, and no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of such officers, threatened by the Commission;
(b) Seller the representations and warranties of the Company in Article III of this Agreement are true and correct as though expressly made at and as of the Closing Date;
(c) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(d) since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not in the ordinary course of business, except as set forth in the Prospectus (exclusive of any supplement thereto).
(v) On the Closing Date, PricewaterhouseCoopers LLP shall have discharged furnished to the Purchasers a letter, dated the Closing Date, in form and substance satisfactory to the Purchasers, to the effect set forth in Exhibit A-2.
(vi) Since the execution of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), no material adverse change shall have occurred in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise, whether or not in the ordinary course of business.
(vii) The Company and the Purchasers shall have obtained all material authorizations, approvals, consents, registrations or qualifications of or with any court or governmental authority or agency (including, without limitation, any insurance regulatory agency or body) required for the issuance and sale of the Securities by the Company to the Purchasers and the performance by the Company of its obligations under this Agreement, except such as may be required under state or foreign securities or Blue Sky laws.
(viii) Any waiting periods under the HSR Act applicable to the transaction contemplated hereby shall have expired or been terminated.
(ix) Counsel for the Purchasers shall have been furnished with such documents and all opinions as they may require for the sellers under each purpose of enabling them to pass upon the issuance and sale of the Affiliate Agreements shall have discharged their material obligations under the Affiliate Agreements;
(c) Seller shall have delivered to the Title Company for the benefit of Purchaser all documents and deliveries required to be so delivered pursuant to Section 3.2;
(d) Seller shall have terminated the Management Agreement at Seller’s sole cost and expense;
(e) If applicable, to the extent Purchaser has not received the New Liquor Permits and has otherwise complied with Section 5.12, Seller or Licensee, as applicable, shall have entered into and executed the Interim Beverage Agreement;
(f) Concurrent Closing of this Agreement with closing of each of the Affiliate Agreements shall have occurred, except for any Affiliate Agreement as to which the closing is not occurring as a result of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement shall not be a condition of the Closing Securities under this Agreement;
(g) Purchaser , as herein contemplated, and related proceedings, or its operating lessee and Franchisor shall have executed and delivered in order to evidence the New Franchise Agreement, on terms (including respecting any PIP required by the Franchisor) acceptable to Purchaser in its sole and absolute discretion;
(h) Title Company shall have committed to issue the Title Insurance Policy for the Property, subject to the payment by Purchaser accuracy of any fees and expenses respecting of the Title Insurance Policy required to be paid by Purchaser under Section 3.5; and
(i) If pursuant to Section 5.13representations or warranties, Purchaser or its operating lessee has elected to enter into the Interim Hotel Management Agreement with Manager, Manager shall have duly executed and delivered the Interim Hotel Management Agreement. If fulfillment of any of the conditions set forth herein contained; and all proceedings taken by the Company in this Section 13 are not satisfied as connection with the issuance and sale of the Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, then except as provided below, the Scheduled Closing Date shall be extended one time for thirty (30) days, and if the conditions are not satisfied by the extended Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have the right to (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser Securities under this Agreement (except those set forth as herein contemplated shall be satisfactory in this Agreement that expressly survive a termination of this Agreement) shall terminate immediately, or (b) waive such condition(s) form and proceed to Closing. For the sake of clarity, if the Scheduled Closing Date under any of the Affiliate Agreements is extended for thirty (30) days pursuant substance to the similar provision in Section 12 of any of Purchasers and counsel for the Affiliate Agreements to allow for satisfaction of conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Hilton approval of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day periodPurchasers.
Appears in 1 contract
Conditions of Purchaser’s Obligations. Purchaser’s obligations obligation to consummate purchase the transactions Property as contemplated by this Agreement are hereunder shall be conditioned upon and subject to the satisfaction (or written or deemed waiver by Purchaser) performance of each of the following conditions, any one or more of which may be waived by Purchaser, in whole or in part, on or as of the Closing Date:
(a) Seller shall have observed, performed and complied with, in all material respects, all terms, covenants, conditions, agreements, requirements, restrictions and provisions required by this Agreement to be kept, observed, performed, satisfied or complied with by Seller before, on or as of the Closing Date;
(b) The representations and warranties and disclosures made by of Seller contained in Section 6 this Agreement shall be true and correct in all material respects when made respects, and at the time shall be certified by Seller to Purchaser as such, on and as of the ClosingClosing Date, subject to changes occurring in accordance with this Agreement disclosed in the bring down certificate;
(b) Seller shall have discharged its material obligations under this Agreement, same manner and all with the sellers under each same effect as though such representations and warranties had been made on and as of the Affiliate Agreements shall have discharged their material obligations under the Affiliate Agreements;Closing Date; and
(c) Seller The Title Company shall have delivered deliver to Purchaser a “marked-up” Title Commitment, dated as of the date and time of recording of the Deed for issuance of the Title Company for Policy upon occurrence of the benefit of Purchaser all documents and deliveries required to be so delivered pursuant to Section 3.2;Closing; and
(d) Seller Lender’s Consent shall have terminated the Management Agreement at Seller’s sole cost and expense;
(e) If applicable, been obtained on or prior to the extent Purchaser date which is one hundred eight (180) days after the date of this Agreement. If the condition specified in clause (d) above has not received been satisfied by the New Liquor Permits and has otherwise complied with Section 5.12, Seller or Licensee, as applicable, shall have entered into and executed the Interim Beverage Agreement;
(f) Concurrent Closing of this Agreement with closing of each of the Affiliate Agreements shall have occurred, except for any Affiliate Agreement as to which the closing is not occurring as a result of a default of Purchaser thereunder. Howeverdeadline therefor set forth in such clause, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement shall not be a condition of the Closing under this Agreement;
(g) Purchaser or its operating lessee and Franchisor shall have executed and delivered the New Franchise Agreement, on terms (including respecting any PIP required by the Franchisor) acceptable to Purchaser in its sole and absolute discretion;
(h) Title Company shall have committed to issue the Title Insurance Policy for the Property, subject to the payment by Purchaser of any fees and expenses respecting the Title Insurance Policy required to be paid by Purchaser under Section 3.5; and
(i) If pursuant to Section 5.1310(a)(vii) Seller should disclose an uncured violation of any statute, Purchaser regulation or its operating lessee has elected other law affecting any portion of the Property and elect not to enter into cure or otherwise remedy the Interim Hotel Management Agreement with Managerviolation, Manager shall have duly executed and delivered the Interim Hotel Management Agreement. If or if any of the other conditions set forth in this Section 13 are have not been satisfied or performed on or as of the Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, then except as provided below, the Scheduled Closing Date shall be extended one time for thirty (30) days, and if the conditions are not satisfied by the extended Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have the right right, at Purchaser’s sole election, to (a) waive the satisfaction or performance of any such condition and proceed to the Closing or, except as set forth in the next sentence of this Section 13, to terminate this Agreement and obtain the return of the ▇▇▇▇▇▇▇ Money (less the Lender Consent Costs), as provided in Section 15 of this Agreement. Notwithstanding the foregoing, in which event Purchaser shall (i) extend the Deposit shall be returned to Purchaser time for performance and all other rights and obligations satisfaction of Seller and Purchaser under this Agreement (except those any unsatisfied or unperformed condition set forth in this Agreement Section 13 (and, if necessary, the Closing Date will be extended accordingly) if Seller shall cure such failure within (A) ten (10) days after Purchaser’s written notice of such failure, if the condition that expressly survive a termination of this Agreement) shall terminate immediatelyhas not been satisfied is described in clause (a), or (b) waive such condition(sor (c) and proceed to Closing. For the sake of clarityabove, if the Scheduled Closing Date under any of the Affiliate Agreements is extended for thirty (30) days pursuant to the similar provision in Section 12 of any of the Affiliate Agreements to allow for satisfaction of conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Hilton approval of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day period.or
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Infinity Property & Casualty Corp)
Conditions of Purchaser’s Obligations. Purchaser’s The obligations to consummate the transactions contemplated by this Agreement are conditioned upon the satisfaction (or written or deemed waiver by Purchaser) of each of the Purchaser hereunder are subject to the accuracy of the representations and warranties of the Offerors contained in Section 1 hereof or in certificates of any Trustee of the Trust, officer of the Company or any of its subsidiaries delivered pursuant to the provisions hereof, to the performance by the Offerors of their obligations hereunder, and to the following further conditions:
(a) The representations and warranties and disclosures made At the Closing Time the Purchaser shall have received:
(i) One Hundred Million Dollars ($100,000,000) as the proceeds to it from the sale by Seller in Section 6 shall be true and correct in all material respects when made and at it to the time Company of 5,000,000 shares of the ClosingSeries A Preferred Stock of the Company, subject and 5,000,000 shares of Series B Preferred Stock of the Company sold to changes occurring the Purchaser at a purchase price of $3,000,000.
(ii) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇, Brown, Koehn, Shors & ▇▇▇▇▇▇▇, P.C., counsel for the Company, in form and substance satisfactory to Purchaser, to the effect that;
(A) The Company has been duly incorporated and is validly existing under the laws of the State of Iowa.
(B) All legally required proceedings in connection with the authorization, issuance and validity of the Preferred Securities and the sale of the Preferred Securities in accordance with this Agreement disclosed (other than the filing of post-issuance reports, the non-filing of which would not render the Preferred Securities invalid) have been taken and all legally required orders, consents or other authorizations or approvals of any other public boards or bodies in connection with the authorization, issuance and the sale of the Preferred Securities in accordance with this Agreement (other than in connection with or in compliance with the provisions of the securities or Blue Sky laws of any jurisdictions, as to which no opinion need be expressed) have been obtained and are in full force and effect.
(C) The Preferred Securities Guarantee has been duly authorized by the Company, has been duly executed and delivered by the Company and, constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that enforcement thereof may be limited by Bankruptcy Exceptions.
(D) The issuance and delivery of the Subordinated Notes have been duly authorized by the Company and the Subordinated Notes have been duly executed and delivered by the Company and, when delivered against payment therefor, constitutes the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by the Bankruptcy exceptions.
(E) The execution, delivery and performance of the Operative Documents and the issuance and delivery of the Preferred Securities, the Preferred Instruments and the consummation of the transactions contemplated herein and therein; and the compliance by each of the Offerors with their respective obligations hereunder and thereunder do not and will not conflict with, result in a breach of, or constitute a default under the Articles of Incorporation or by-laws of the Company or any of its Subsidiaries or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or an of its Subsidiaries is a party or bound, or result in a violation of any statute or regulation, or any order or decree known to such counsel to be applicable to the Company or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its Subsidiaries.
(F) In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws other than the laws of Iowa and the federal law of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Purchaser and (B) as to matters of Delaware Law, upon the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel to the Offerors (or other Delaware counsel acceptable to Purchaser).
(iii) The favorable opinion, dated as of the Closing Time, of Delaware counsel acceptable to Purchaser in form and substance satisfactory to Purchaser, to the effect that:
(A) The Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Act, and all filings required under the laws of the State of Delaware with respect to the creation and valid existence of the Trust as a business trust have been made.
(B) The Declaration constitutes a valid and binding obligation of the Company and the Trustees and is enforceable against the Company and the Trustees in accordance with its terms, subject, as to enforcement, to (i) bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation, fraudulent conveyance and other similar laws relating to or affecting the rights and remedies of creditors generally, (ii) principles of equity, including applicable law relating to fiduciary duties (regardless of whether considered and applied in a proceeding in equity or at law), and (iii) the effect of applicable public policy on the enforceability of provisions relating to indemnification and contribution.
(C) Under the Delaware Act and the Declaration, the Trust has the power and authority to execute and deliver, and to perform its obligations as described in the bring down certificate;Declaration.
(D) Delivery by the Trust of this Agreement, and the performance by the Trust of its obligations hereunder, have been duly authorized by all necessary action on the part of the Trust.
(E) The certificates for the Preferred Securities are in due and proper form, the Preferred Securities have been duly authorized by the Declaration and, when delivered to and paid for by the Purchaser in accord with the terms of the Declaration and this Agreement, will be duly and validly issued and, subject to qualifications hereinafter expressed in this paragraph (vi), fully paid and nonassessable undivided beneficial interests in the assets of the Trust, the holders of the Preferred Securities, as beneficial owners of the Trust, will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware; said counsel may note that the holders of the Preferred Securities may be obligated to make payments as set forth in the Declaration.
(F) The Common Securities have been duly authorized by the Declaration and, when delivered and paid for by the Company in accordance with the terms of the Declaration duly and validly issued and represent undivided beneficial interests in the assets of the Trust.
(G) Under the Delaware Act and the Declaration, the issuance of the Preferred Securities is not subject to preemptive rights.
(H) The issuance and sale by the Trust of the Preferred Securities and Common Securities, the purchase by the Trust of the Subordinated Notes, the execution, delivery and performance by the Trust of this Agreement, the consummation by the Trust of the transactions contemplated hereby and compliance by the Trust with its obligations hereunder will not violate (i) any of the provisions of the Certificate of Trust or the Declaration or (ii) any applicable Delaware law or administrative regulation.
(iv) The opinion of ▇▇▇▇▇, Brown, Koehn, Shors & ▇▇▇▇▇▇▇, P.C., special tax counsel to the Offerors, based on current law and the assumptions stated or referred to therein, that (i) the Notes will be classified for United States federal income tax purposes as indebtedness of the Company, and (ii) the Trust will be classified for United States federal income tax purposes as a grantor trust and not as an association taxable as a corporation. Such opinion may be conditioned on, among other things, the initial and continuing accuracy of the facts, financial and other information, covenants and representations set forth in certificates of officers of the Company and the Trust and other documents deemed necessary for such opinion.
(v) The favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, P.L.C., counsel to the Purchaser, with respect to such matters as the Purchaser may require. In giving its opinion, ▇▇▇▇▇▇, Burlingame & ▇▇▇▇, P.L.C. may rely as to certain matters of Iowa and Delaware law upon the opinions of ▇▇▇▇▇, Brown, Koehn, Shors & ▇▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel for the Offerors, which shall be delivered in accordance with Section (a)(ii) and (a)(iii) hereof
(b) Seller At the Closing Time there shall not have been, since the date hereof, any material adverse change, or any development or event involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Trust, or the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Purchaser shall have discharged its material obligations under this Agreementreceived a certificate of an executive officer of the Company, and all the sellers under each a certificate of an Administrative Trustee of the Affiliate Agreements shall Trust, dated as of the closing Time, to the effect that, (i) there has been no such material adverse change or development or event, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, and (iii) the Offerors have discharged complied with all agreements and satisfied all conditions on their material obligations under part to be performed or satisfied at or prior to the Affiliate Agreements;Closing Time.
(c) Seller If any condition specified in this Section 5 shall not have delivered to the Title Company for the benefit of Purchaser all documents been fulfilled when and deliveries as required to be so delivered pursuant to Section 3.2;
(d) Seller shall have fulfilled, this Agreement may be terminated by the Management Agreement at Seller’s sole cost and expense;
(e) If applicable, Purchaser by notice to the extent Purchaser has not received the New Liquor Permits Offerors at any time at or prior to Closing Time, and has otherwise complied with Section 5.12, Seller or Licensee, as applicable, such termination shall have entered into and executed the Interim Beverage Agreement;
(f) Concurrent Closing of this Agreement with closing of each of the Affiliate Agreements shall have occurred, except for any Affiliate Agreement as to which the closing is not occurring as a result of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement shall not be a condition of the Closing under this Agreement;
(g) Purchaser or its operating lessee and Franchisor shall have executed and delivered the New Franchise Agreement, on terms (including respecting any PIP required by the Franchisor) acceptable to Purchaser in its sole and absolute discretion;
(h) Title Company shall have committed to issue the Title Insurance Policy for the Property, subject to the payment by Purchaser without liability of any fees and expenses respecting the Title Insurance Policy required party to be paid by Purchaser under Section 3.5; and
(i) If pursuant to Section 5.13, Purchaser or its operating lessee has elected to enter into the Interim Hotel Management Agreement with Manager, Manager shall have duly executed and delivered the Interim Hotel Management Agreement. If any of the conditions set forth in this Section 13 are not satisfied as of the Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, then party except as provided below, the Scheduled Closing Date shall be extended one time for thirty (30) days, and if the conditions are not satisfied by the extended Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have the right to (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser under this Agreement (except those set forth in this Agreement that expressly survive a termination of this Agreement) shall terminate immediately, or (b) waive such condition(s) and proceed to Closing. For the sake of clarity, if the Scheduled Closing Date under any of the Affiliate Agreements is extended for thirty (30) days pursuant to the similar provision in Section 12 of 4 and except that Section 6 shall survive any of the Affiliate Agreements to allow for satisfaction of conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Hilton approval of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day periodsuch termination and remain in full force and effect.
Appears in 1 contract
Sources: Preferred Securities Purchase Agreement (FBL Financial Group Inc)
Conditions of Purchaser’s Obligations. Purchaser’s obligations The obligation of the Purchaser to consummate purchase Securities on a Closing Date as provided herein is subject to (x) the transactions contemplated performance in all material respects by this Agreement are conditioned upon the satisfaction (or written or deemed waiver by Purchaser) of Company and each of the Guarantors of their respective covenants and other obligations hereunder and (y) to the following additional conditions:
(a) The representations and warranties and disclosures made by Seller in Section 6 shall be true and correct in all material respects when made and at the time of the Closing, subject to changes occurring in accordance with this Agreement disclosed in the bring down certificate;
(b) Seller shall have discharged its material obligations under this Agreement, and all the sellers under each of the Affiliate Agreements shall have discharged their material obligations under the Affiliate Agreements;
(c) Seller shall have delivered to the Title Company for the benefit of Purchaser all documents and deliveries required to be so delivered pursuant to Section 3.2;
(d) Seller shall have terminated the Management Agreement at Seller’s sole cost and expense;
(e) If applicable, to the extent Purchaser has not received the New Liquor Permits and has otherwise complied with Section 5.12, Seller or Licensee, as applicable, shall have entered into and executed the Interim Beverage Agreement;
(f) Concurrent Closing of this Agreement with closing of each of the Affiliate Agreements shall have occurred, except for any Affiliate Agreement as to which the closing is not occurring as a result of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement shall not be a condition of the Closing under this Agreement;
(g) Purchaser or its operating lessee and Franchisor shall have executed and delivered the New Franchise Agreement, on terms (including respecting any PIP required by the Franchisor) acceptable to Purchaser in its sole and absolute discretion;
(h) Title Company shall have committed to issue the Title Insurance Policy for the Property, subject to the payment by Purchaser of any fees and expenses respecting the Title Insurance Policy required to be paid by Purchaser under Section 3.5; andEnhancedView Imagery Acquisition Contract.
(i) If The EnhancedView Imagery Acquisition Contract shall have been awarded to the Company or one of its wholly-owned subsidiaries in the initial award process under the EnhancedView Imagery Acquisition Solicitation on or prior to September 30, 2010 (or such later date as the Purchaser may from time to time designate in writing to the Company) (such date, the “Award Outside Date”); (ii) the award of the EnhancedView Imagery Acquisition Contract to the Company shall have been made on terms materially consistent with the Company’s Bid Disclosures in a definitive, final decision for which the GAO bid protest period has expired and shall be in full force and effect; (iii) no Litigation against such award shall be pending or threatened (including any bid protest before the GAO or any proceeding before any applicable Governmental Authority) (and, in the case of a protest before the GAO, such protest shall have been resolved in a binding and final manner by the GAO) and such award shall not be stayed pursuant to any such protest or other Litigation; (iv) the EnhancedView Imagery Acquisition Contract shall not have been amended, supplemented, waived or otherwise modified since the date of its award to the Company in any material respect that is adverse to the interests of the Purchaser; (v) in the event that the EnhancedView Imagery Acquisition Contract is awarded in the initial award process under the EnhancedView Imagery Acquisition Solicitation to a party other than the Company, then the Purchaser shall not have given notice of its intent to terminate its obligations pursuant to Section 5.13, Purchaser or its operating lessee has elected to enter into 4(g); and (vi) the Interim Hotel Management Agreement with Manager, Manager EnhancedView Imagery Acquisition Contract shall not have duly executed and delivered the Interim Hotel Management Agreement. If any of the conditions set forth in this Section 13 are not satisfied as of the Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, then except as provided below, the Scheduled Closing Date shall be extended one time for thirty (30) days, and if the conditions are not satisfied by the extended Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have the right to (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser under this Agreement (except those set forth in this Agreement that expressly survive a termination of this Agreement) shall terminate immediately, or (b) waive such condition(s) and proceed to Closing. For the sake of clarity, if the Scheduled Closing Date under any of the Affiliate Agreements is extended for thirty (30) days pursuant been awarded to the similar provision in Section 12 of any of the Affiliate Agreements to allow for satisfaction of conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Hilton approval of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day periodCompany on a Non-Conforming Basis.
Appears in 1 contract
Sources: Purchase Agreement (GeoEye, Inc.)
Conditions of Purchaser’s Obligations. Purchaser’s The several obligations of the Purchasers hereunder to consummate the transactions contemplated by this Agreement purchase New Securities are conditioned upon the satisfaction (or written or deemed waiver by Purchaser) of each of subject to the following conditions:
(a) The representations That at the time of purchase and warranties and disclosures made by Seller in Section 6 additional time of purchase you shall be true furnished with signed copies of the following, addressed to the Purchasers and correct with photostatic copies or signed or conformed counterparts thereof for each of the other Purchasers:
(i) An opinion of counsel to the Company, stating in substance:
(A) That the Company has been duly incorporated and is at the time of purchase or additional time of purchase validly existing as a corporation in good standing under the laws of the State of Delaware, with charter power to carry on the business in which it is not engaged;
(B) That the subsidiaries of the Company named in the Prospectus are validly organized and existing under the laws of the respective jurisdictions in which they are incorporated;
(C) That this Agreement has been duly authorized, executed and delivered by the Company;
(D) All the outstanding shares of capital stock of the subsidiaries have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus and Prospectus Supplement, all outstanding shares of capital stock of the subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances;
(E) That the capital stock of the Company conforms to the description thereof contained in the Prospectus and Prospectus Supplement;
(F) That the New Securities have been duly authorized, and, when issued and delivered to and paid for by the Purchasers pursuant to this Agreement, will be validly issued, fully paid and nonassessable;
(G) That the New Securities conform in all material respects when made as to legal matters with the statements concerning the New Securities in the Prospectus;
(H) That the statements of the law and legal conclusions in the Prospectus set forth in the section "The Company and Its Subsidiaries," "Description of Common Stock", "Description of Preferred Stock" and, in the Annual Report of the Company on Form 10-K incorporated by reference in the Prospectus (in the sections "[insert appropriate sections of Form 10-K]"), are to the best of the knowledge of said counsel true and accurate and do not omit to state any material facts required to be stated therein or necessary to make such statements not misleading;
(I) That (i) the Registration Statement and the Prospectus and any amendment or supplement thereto (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form with the requirements of Form S-3 and the Rules and Regulations; and (ii) the documents incorporated by reference in the Prospectus at the time the Registration Statement became effective and at the time of purchase (other than the Closingfinancial statements and other financial and statistical information contained therein, subject as to changes occurring which such counsel need express no opinion) complied when filed pursuant to the Exchange Act as to form with the requirements of the Exchange Act and the Exchange Act Rules and Regulations;
(i) The original order of the Commission referred to in subsection (c) of Section 2 of this Agreement has been obtained and, to the best of the knowledge of said counsel, is in full force and effect; (ii) any required supple- mental order of the Commission, referred to in subsection (c) of Section 2 of this Agreement, has been duly issued and, to the best of the knowledge of said counsel, is in full force and effect; and (iii) no further approval, authorization, consent, certificate or order of any Federal commission or regulatory authority is necessary for the consummation of the transactions contemplated in this Agreement except such as have been obtained under the Act and such as may be required under the Blue Sky or foreign laws of any jurisdiction in connection with the purchase and distribution of the New Securities by the Purchasers, and such other approvals specified in such opinion as have been obtained;
(K) That all contracts of the Company and its subsidiaries that are required to be filed as exhibits to the Registration Statement under the Act and the Rules and Regulations have been so filed, and that to the extent required all material contracts of the Company and its subsidiaries have been properly described in the Registration Statement and Prospectus; and
(L) That such counsel has participated in the preparation of the Registration Statement and Prospectus and no facts have come to the attention of such counsel to lead such counsel to believe that either the Registration Statement or the Prospectus at the time the Registration Statement or any amendment thereto became effective, or the Prospectus or any amendment or supplement thereto when the Prospectus or such amendment or supplement was filed, or the Prospectus as it may be amended or supplemented as of the time of purchase, contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(ii) An opinion of Counsel for the Purchasers as to matters referred to in paragraph (a)(i) of this Section 5 under the subheadings (C),(E),(F),(H) and (J) (except for the third clause, in lieu of which such counsel shall state that they are unaware of any approval of any other regulatory body being so required), and that the Registration Statement and the Prospectus, as of the date the Registration Statement became effective (other than the financial statements and other financial and statistical information contained therein and Exhibit 12 to the Registration Statement), appear to comply as to form in all material respects with the requirements of Form S-3 and the Rules and Regulations. In addition such counsel shall state that they have participated in conferences with officers and other representatives of the Company, counsel for the Company and representatives of the independent accountants of the Company at which the contents of the Registration Statement and Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus (except as to the matters referred to in paragraph (a)(i) of this Section 5 under subheading (E)), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel and other representatives of the Company), no facts have come to the attention of such counsel which lead them to believe that the Registration Statement or any amendment thereto when such Registration Statement or amendment became effective or the Prospectus or any supplement thereto when such supplement was filed 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 the light of the circumstances in which they were made, not misleading (it being understood that such counsel need make no comment with respect to the financial statements and other financial and statistical data included in the Registration Statement or Prospectus and Exhibit 12 to the Registration Statement); and
(iii) A letter, dated the time of purchase and the additional time of purchase addressed to the Purchasers from the independent accountants for the Company to the effect that:
(A) they are independent accountants within the meaning of the Act and the Rules and Regulations;
(B) in their opinion, the consolidated financial statements audited by them and incorporated by reference in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations with respect to registration statements on Form S-3;
(C) on the basis of procedures (but not an examination in accordance with this Agreement disclosed generally accepted auditing standards) consisting of:
(1) reading the minutes of meetings of the stockholders and the Board of Directors of the Company and its consolidated subsidiaries since December 31 of the most recent preceding year as set forth in the bring down certificateminute books, but in no event through a specified date not more than five business days prior to the date of delivery of such letter;
(2) reading the unaudited condensedconsolidated balance sheets, the unaudited consolidated statements of income and the unaudited condensed consolidated statements of cash flows for the periods included in the Company's quarterly reports on Form 10-Q for the current year (for the quarters ended March 31, June 30 and September 30, as the case may be), incorporated by reference in the Registration Statement;
(3) reading the unaudited consolidated financial data of the Company and subsidiaries for the period from the latest quarterly reporting period to the date of the latest available interim data, furnished by the Company, officials of the Company having advised them that no such consolidated financial data as of any date or for any period subsequent to such latest date were available; and
(4) making inquiries of certain officials of the Company who have responsibility for financial and accounting matters regarding the specific items for which representations are requested below; nothing has come to their attention as a result of the foregoing procedures that caused them to believe that:
(a) the unaudited condensed consolidated financial statements incorporated by reference in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act as it applies to Form 10-Q and the Exchange Act Rules and Regulations or said financial statements are not stated on a basis substantially consistent with that of the audited financial statements incorporated by reference in the Registration Statement;
(b) Seller shall have discharged its material obligations under this Agreement, and all for the sellers under each period from the date of the Affiliate Agreements latest quarterly report on Form 10-Q to the date of the latest available unaudited consolidated income statement read by such accountants, there were any decreases, as compared with the corresponding period of the prior year, in consolidated total operating revenue, in operating income before income taxes or in net income, except in all instances for decreases which the Registration Statement discloses have occurred or may occur, or they shall have discharged their material obligations under the Affiliate Agreementsstate any specific decreases;
(c) Seller at the date of the latest available unaudited consolidated balance sheet read by such accountants, and at a subsequent specified date not more than five days prior to the date of delivery of such letter, there was any change in common stock or long-term debt of the Company, or any decrease in total stockholders' equity as compared with amounts shown on the latest unaudited condensed consolidated balance sheet included in the Registration Statement (including documents incorporated by reference), [except as to dividends on common stock that have been declared in the normal course of business, amortization of long-term debt discount or premium, the retirement of long-term debt to satisfy mandatory sinking fund requirements, and the issuance of common stock in connection with the Company's long-term incentive plans and thrift plans or dividend reinvestment plans,]1 or, from the date of the latest available unaudited condensed consolidated income statement read by such accountants to the subsequent specified date, any decreases, as compared with the corresponding period in the preceding year, in consolidated total operating revenues, in operating income before income taxes or in net income, except in all instances for changes or decreases which the Registration Statement (including documents incorporated by reference) discloses have occurred or may occur, or except as otherwise noted in such letter.
(D) the specified dollar amounts (or percentages derived from such dollar amounts) under captions specified by the purchasers and agreed to by such independent accountants contained in the Registration Statement (including documents incorporated by reference), in each case to the extent that such dollar amounts and percentages are obtained from the general accounting records of the Company and its subsidiaries subject to the internal control structure, policies and procedures of the Company's accounting system or are derived directly from such records by analysis or computation, is in agreement with such ---------- * Relevant exceptions will be stated. records or computations made therefrom, except as otherwise specified in such letter;
(b) That no amendment to the Registration Statement in the form in which the Registration Statement is effective at the date of this Agreement, filed subsequent to the execution of this Agreement, or supplement to the Prospectus constituting a part of such Registration Statement, filed subsequently to the execution of this Agreement, shall contain information substantially different from that contained in such Registration Statement or Prospectus which shall be unsatisfactory in substance to you or unsatisfactory in form to Counsel for the Purchasers;
(c) That prior to the time of purchase or the additional time of purchase, no stop order with respect to the effectiveness of the Registration Statement shall have delivered been issued under the Act by the Commission or proceedings therefor initiated or threatened; that at the time of purchase or the additional time of purchase the Registration Statement, as amended or supplemented, shall not contain an untrue statement of a material fact or omit to the Title Company for the benefit of Purchaser all documents and deliveries state a material fact required to be so delivered pursuant stated therein or necessary to Section 3.2make the statements therein not misleading, and that the Prospectus, as amended or supplemented, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(d) Seller That since the respective dates as of which information is given in the Registration Statement and Prospectus and prior to the time of purchase or the additional time of purchase, no material and unfavorable change in the condition of the Company and its subsidiaries on a consolidated basis, financial or otherwise, shall have terminated taken place (other than as referred to in the Management Agreement Registration Statement and Prospectus); and the Company will, at Seller’s sole cost the time of purchase or the additional time of purchase, deliver to you, with photostatic copies for delivery to each of the Purchasers, a certificate of its Chairman of the Board or its President or a Vice President and expenseits Treasurer or an Assistant Treasurer that such a change has not occurred;
(e) If applicable, That subsequent to the extent Purchaser has date of this Agreement and prior to the time of purchase or the additional time of purchase there shall not received have occurred (i) any downgrading in the rating of any debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act); (ii) any banking moratorium declared by Federal or New York authorities; or (iii) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in your reasonable judgment, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the New Liquor Permits and has otherwise complied with Section 5.12, Seller or Licensee, as applicable, shall have entered into and executed the Interim Beverage AgreementSecurities;
(f) Concurrent Closing of this Agreement with closing of each of That the Affiliate Agreements shall have occurred, except for any Affiliate Agreement as to which the closing is not occurring as a result of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement shall not be a condition of the Closing under this Agreement;
(g) Purchaser or its operating lessee and Franchisor shall have executed and delivered the New Franchise Agreement, on terms (including respecting any PIP required by the Franchisor) acceptable to Purchaser in its sole and absolute discretion;
(h) Title Company shall have committed to issue the Title Insurance Policy for the Property, subject to the payment by Purchaser of any fees and expenses respecting the Title Insurance Policy required to be paid by Purchaser under Section 3.5; and
(i) If pursuant to Section 5.13, Purchaser or its operating lessee has elected to enter into the Interim Hotel Management Agreement with Manager, Manager shall have duly executed and delivered the Interim Hotel Management Agreement. If any of the conditions set forth in this Section 13 are not satisfied as of the Scheduled Closing Date, other than as a result of Purchaser’s or any performed such of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, then except Agreement as provided below, the Scheduled Closing Date shall are to be extended one time for thirty (30) days, and if the conditions are not satisfied performed by the extended Scheduled Closing Date, other than as a result terms hereof at or before the time of Purchaser’s purchase or any the additional time of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have the right to (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser under this Agreement (except those set forth in this Agreement that expressly survive a termination of this Agreement) shall terminate immediately, or (b) waive such condition(s) and proceed to Closing. For the sake of clarity, if the Scheduled Closing Date under any of the Affiliate Agreements is extended for thirty (30) days pursuant to the similar provision in Section 12 of any of the Affiliate Agreements to allow for satisfaction of conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Hilton approval of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day periodpurchase.
Appears in 1 contract
Conditions of Purchaser’s Obligations. The Purchaser’s obligations obligation to consummate purchase and pay for the transactions contemplated by this Agreement are conditioned upon Bond which is to be delivered as the satisfaction (or written or deemed waiver by Purchaser) of each initial installment hereunder is subject to the fulfillment of the following conditionsconditions at or before such delivery:
(a) The representations Lease, the Guaranty, the Indenture and warranties this Bond Purchase Agreement shall have been duly authorized, executed and disclosures made delivered by Seller the respective parties thereto, in Section 6 substantially the forms heretofore approved by the Purchaser, with only such changes therein as the Purchaser, the Issuer and the Company shall be true and correct in all material respects when made and at the time of the Closing, subject to changes occurring in accordance with this Agreement disclosed in the bring down certificatemutually agree upon;
(b) Seller The Bond to be initially delivered shall have discharged its material obligations under this Agreementbeen duly authorized, executed and all authenticated in accordance with the sellers under each provisions of the Affiliate Agreements shall have discharged their material obligations under the Affiliate AgreementsIndenture;
(c) Seller The Purchaser shall have delivered to received the Title Company for following documents:
(i) Executed counterparts of the benefit of Purchaser all documents Lease, the Guaranty and deliveries required to be so delivered pursuant to Section 3.2the Indenture;
(dii) Seller shall have terminated Opinions dated as of the Management Agreement at Seller’s sole cost date of delivery of the Bond to be initially delivered of (A) Counsel for the Issuer in substantially the form of that which is attached hereto as Exhibit “B”; (B) Bond Counsel in substantially the form of that which is attached hereto as Exhibit “C”; and expense(C) Counsel for the Company, as lessee and as guarantor, in substantially the form of that which is attached hereto as Exhibit “D”;
(eiii) If applicableA certificate dated as of the date of delivery of the Bond to be initially delivered, signed by the Chairman or Vice Chairman and the Secretary- Treasurer of the Issuer and in form and substance satisfactory to the Purchaser, to the extent Purchaser has not received effect that to the New Liquor Permits best of the information, knowledge and has otherwise complied with Section 5.12belief of such officers, Seller or Licensee, as applicable, shall have entered into and executed the Interim Beverage Agreement;
(f) Concurrent Closing of this Agreement with closing of each of the Affiliate Agreements shall have occurredrepresentations and warranties set forth in Paragraph 4 hereof is true, except for any Affiliate Agreement accurate and complete in all material respects as to which the closing is not occurring as a result of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement shall not be a condition of the Closing under date of delivery of the Bond to be initially delivered and that the Issuer has complied with each of its covenants and agreements required in this Agreement;
(g) Purchaser Bond Purchase Agreement to be complied with at or its operating lessee and Franchisor shall have executed and delivered the New Franchise Agreement, on terms (including respecting any PIP required by the Franchisor) acceptable to Purchaser in its sole and absolute discretion;
(h) Title Company shall have committed to issue the Title Insurance Policy for the Property, subject prior to the payment by Purchaser date of any fees and expenses respecting delivery of the Title Insurance Policy required Bond to be paid by Purchaser under Section 3.5initially delivered; and
(iiv) If pursuant to Section 5.13Such additional opinions, certificates, instruments and other documents as the Purchaser or its operating lessee has elected counsel may reasonably request to enter into evidence compliance with applicable law, as of the Interim Hotel Management Agreement with Manager, Manager shall have duly executed date of delivery of the Bond to be initially delivered. The Purchaser’s obligation to purchase and delivered the Interim Hotel Management Agreement. If pay for any of the conditions set forth in this Section 13 are not satisfied as Bonds at any time or from time to time after the delivery of the Scheduled Closing DateBond to be initially delivered, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreementherein provided, then except as provided below, the Scheduled Closing Date shall be extended one time for thirty (30) days, and if the conditions are not satisfied by the extended Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have the right to (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser under this Agreement (except those set forth in this Agreement that expressly survive a termination of this Agreement) shall terminate immediately, or (b) waive such condition(s) and proceed to Closing. For the sake of clarity, if the Scheduled Closing Date under any of the Affiliate Agreements is extended for thirty (30) days pursuant subject to the similar provision in Section 12 due execution, authentication and delivery to the Purchaser of any of the Affiliate Agreements to allow for satisfaction of conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Hilton approval of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day periodsuch pertinent Bond.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions of Purchaser’s Obligations. The Purchaser’s obligations obligation to consummate purchase and pay for the transactions contemplated by this Agreement are conditioned upon Bond which is to be delivered as the satisfaction (or written or deemed waiver by Purchaser) of each initial installment hereunder is subject to the fulfillment of the following conditionsconditions at or before such delivery:
(a) The representations Lease, the Indenture, the Guaranty and warranties this Bond Purchase Agreement shall have been duly authorized, executed and disclosures made delivered by Seller the respective parties thereto, in Section 6 substantially the forms heretofore approved by the Purchaser, with only such changes therein as the Purchaser, the Issuer and the Lessee shall be true and correct in all material respects when made and at the time of the Closing, subject to changes occurring in accordance with this Agreement disclosed in the bring down certificatemutually agree upon;
(b) Seller The Bond to be initially delivered shall have discharged its material obligations under this Agreementbeen duly authorized, executed and all authenticated in accordance with the sellers under each provisions of the Affiliate Agreements shall have discharged their material obligations under the Affiliate AgreementsIndenture;
(c) Seller The Purchaser shall have delivered to received the Title Company for following documents:
(i) Executed counterparts of the benefit of Purchaser all documents Lease and deliveries required to be so delivered pursuant to Section 3.2the Indenture;
(dii) Seller shall have terminated Opinions dated as of the Management Agreement at Seller’s sole cost date of delivery of the Bond to be initially delivered of (A) Counsel for the Issuer in substantially the form of that which is attached hereto as Exhibit “B”; (B) Bond Counsel in substantially the form of that which is attached hereto as Exhibit “C”; and expense(C) Counsel for the Lessee in substantially the form of that which is attached hereto as Exhibit “D”;
(eiii) If applicableA certificate dated as of the date of delivery of the Bond to be initially delivered, signed by the Chair, Vice Chair, President and Chief Executive Officer, Executive Vice President and Chief Operating Officer, Secretary or any Assistant Secretary of the Issuer and in form and substance satisfactory to the Purchaser, to the extent Purchaser has not received effect that to the New Liquor Permits best of the information, knowledge and has otherwise complied with Section 5.12belief of such officers, Seller or Licensee, as applicable, shall have entered into and executed the Interim Beverage Agreement;
(f) Concurrent Closing of this Agreement with closing of each of the Affiliate Agreements shall have occurredrepresentations and warranties set forth in Paragraph 4 hereof is true, except for any Affiliate Agreement accurate and complete in all material respects as to which the closing is not occurring as a result of a default of Purchaser thereunder. However, if the closing under the Affiliate Agreement for the Home2 Suites Hotel, Southaven, Mississippi (the “Southaven Affiliate Agreement”) is delayed to allow additional time to satisfy the condition in Section 12(g) thereof regarding a loan assumption, then the concurrent closing under that Affiliate Agreement shall not be a condition of the Closing under date of delivery of the Bond to be initially delivered and that the Issuer has complied with each of its covenants and agreements required in this Agreement;
(g) Purchaser Bond Purchase Agreement to be complied with at or its operating lessee and Franchisor shall have executed and delivered the New Franchise Agreement, on terms (including respecting any PIP required by the Franchisor) acceptable to Purchaser in its sole and absolute discretion;
(h) Title Company shall have committed to issue the Title Insurance Policy for the Property, subject prior to the payment by Purchaser date of any fees and expenses respecting delivery of the Title Insurance Policy required Bond to be paid by Purchaser under Section 3.5initially delivered; and
(iiv) If pursuant to Section 5.13Such additional opinions, certificates, instruments and other documents as the Purchaser or its operating lessee has elected counsel may reasonably request to enter into evidence compliance with applicable law, as of the Interim Hotel Management Agreement with Manager, Manager shall have duly executed date of delivery of the Bond to be initially delivered. The Purchaser’s obligation to purchase and delivered the Interim Hotel Management Agreement. If pay for any of the conditions set forth in this Section 13 are not satisfied as Bonds at any time or from time to time after the delivery of the Scheduled Closing DateBond to be initially delivered, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreementherein provided, then except as provided below, the Scheduled Closing Date shall be extended one time for thirty (30) days, and if the conditions are not satisfied by the extended Scheduled Closing Date, other than as a result of Purchaser’s or any of its affiliate’s own actions or failure to act or a breach of Purchaser’s obligations under this Agreement, Purchaser shall have the right to (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and all other rights and obligations of Seller and Purchaser under this Agreement (except those set forth in this Agreement that expressly survive a termination of this Agreement) shall terminate immediately, or (b) waive such condition(s) and proceed to Closing. For the sake of clarity, if the Scheduled Closing Date under any of the Affiliate Agreements is extended for thirty (30) days pursuant subject to the similar provision in Section 12 due execution, authentication and delivery to the Purchaser of any of the Affiliate Agreements to allow for satisfaction of conditions therein, the Scheduled Closing Date under this Agreement shall also be extended for thirty (30) days. However, unless Purchaser agrees, the Scheduled Closing Date shall not be extended for thirty (30) days, if either the Hilton approval of the New Franchise Agreement or any commitment that Purchaser may have for financing the purchase of the Property shall expire during the thirty (30) day periodsuch pertinent Bond.
Appears in 1 contract
Sources: Bond Purchase Agreement