Common use of Conditions to Obligations of Acquiror Clause in Contracts

Conditions to Obligations of Acquiror. The obligation of Acquiror to consummate, or cause to be consummated, the transactions contemplated hereby are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror: (a) (i) The representations and warranties of the Sellers set forth in Sections 3.1, 3.2(a), 3.3, 3.4(a)(ii) and 3.7 shall be true and correct in all material respects as of the Closing, as if made anew at and as of that time (except with respect to representations and warranties that speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date), (ii) the representations and warranties of the Sellers set forth in Section 3.6 shall be true and correct in all respects (other than de minimis inaccuracies or changes resulting from the Additional Structuring that do not result in a Company being less than wholly owned (directly or indirectly) by a Seller) as of the Closing, as if made anew at and as of that time (except with respect to representations and warranties that speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date) and (iii) the other representations and warranties of Sellers contained in this Agreement shall be true and correct (without giving effect to any materiality or “Material Adverse Effect” qualifications therein) as of the Closing, as if made anew at and as of that time (except with respect to representations and warranties that speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date), except for, in the case of clause (iii), any failures of such representations and warranties to be so true and correct that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (b) Each of the covenants of Sellers to be performed as of or prior to the Closing shall have been performed in all material respects. (c) Since the date of this Agreement, no event, change or circumstance shall have occurred that has had, or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. (d) Sellers shall have delivered to Acquiror a certificate signed by an officer, manager or other authorized individual of each Seller, dated the Closing Date, certifying that, to the knowledge and belief of such individual(s), the conditions specified in Section 8.2(a) and Section 8.2(b) have been satisfied. (e) Sellers shall have delivered to Acquiror a statement executed by ▇▇▇▇▇▇▇ US in accordance with Section 1445(b)(3) of the Code and Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3) certifying that ▇▇▇▇▇▇▇ US is not a United States real property holding company. (f) Sellers have delivered, or at the Closing will deliver, the deliverables set forth in Section 2.5.

Conditions to Obligations of Acquiror. The obligation obligations of Acquiror to consummate, or cause to be consummated, the transactions contemplated hereby Purchase are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror: (a) (i) The representations and warranties of the Sellers set forth Company contained in Sections 3.1Section 4.6 shall be true and correct in all but de minimis respects as of the Closing Date, 3.2(a)except with respect to such representations and warranties which speak as to an earlier date, 3.3which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, 3.4(a)(iiexcept for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than Section 4.6) shall be true and 3.7 correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects as of the Closing, as if made anew at and as of that time such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties that which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date), (ii) the representations and warranties of the Sellers set forth in Section 3.6 shall be true and correct in all respects (other than de minimis inaccuracies or changes resulting from the Additional Structuring that do not result in a Company being less than wholly owned (directly or indirectly) by a Seller) as of the Closing, as if made anew at and as of that time (except with respect to representations and warranties that speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date) and (iii) the other representations and warranties of Sellers contained in this Agreement shall be true and correct (without giving effect to any materiality or “Material Adverse Effect” qualifications therein) as of the Closing, as if made anew at and as of that time (except with respect to representations and warranties that speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date), except for, in the case of clause (iii)each case, any failures of such representations and warranties to be so true and correct inaccuracies or omissions that would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.; and (b) Each of the covenants of Sellers the Company to be performed as of or prior to the Closing shall have been performed in all material respects.; (c) Since Each of the representations and warranties of the Members contained in Article III shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement, no event, change Agreement which are contemplated or circumstance expressly permitted by this Agreement or the Ancillary Agreements; (d) The key financial results in the Audited Financial Statements and 2022 Audited Financial Statements are substantially consistent with the Company’s financial results provided in Exhibit F; (e) The Recapitalization shall have occurred been completed pursuant to the Recapitalization Instrument. (f) There has not been any Event that has had, or would reasonably be expected to have, either individually or in the aggregate, a Company Material Adverse Effect. (d) Sellers shall have delivered to Acquiror a certificate signed by an officer, manager or other authorized individual of each Seller, dated the Closing Date, certifying that, to the knowledge and belief of such individual(s), the conditions specified in Section 8.2(a) and Section 8.2(b) have been satisfied. (e) Sellers shall have delivered to Acquiror a statement executed by ▇▇▇▇▇▇▇ US in accordance with Section 1445(b)(3) of the Code and Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3) certifying that ▇▇▇▇▇▇▇ US is not a United States real property holding company. (f) Sellers have delivered, or at the Closing will deliver, the deliverables set forth in Section 2.5.

Conditions to Obligations of Acquiror. The obligation obligations of Acquiror to consummate, or cause to be consummated, consummate the transactions contemplated hereby are by this Agreement shall be subject to the satisfaction fulfillment or Acquiror’s waiver, at or prior to the Closing, of each of the following additional conditions, any one or more of which may be waived in writing by Acquiror: (a) (i) The representations and warranties of the Sellers set forth in Sections 3.1, 3.2(a), 3.3, 3.4(a)(ii) and 3.7 shall be true and correct in all material respects as of the Closing, as if made anew at and as of that time (except with respect to representations and warranties that speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date), (ii) Other than the representations and warranties of the Sellers set forth Transferor contained in Section 3.6 4.01, Section 4.02 and Section 4.17, the representations and warranties of Transferor contained in this Agreement shall be true and correct in all respects (other than de minimis inaccuracies in the case of any representation or changes resulting from warranty qualified by materiality or Transferor Material Adverse Effect) or in all material respects (in the Additional Structuring that do case of any representation or warranty not result in a Company being less than wholly owned (directly qualified by materiality or indirectlyTransferor Material Adverse Effect) by a Seller) on and as of the Closing, Effective Date and on and as if of the Closing Date with the same effect as though made anew at and as of that time such date (except with respect to those representations and warranties that speak address matters only as to an earlier of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Transferor contained in Section 4.01, Section 4.02 and Section 4.17 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such earlier date) and (iii) the other representations and warranties of Sellers contained in this Agreement shall be true and correct (without giving effect to any materiality or “Material Adverse Effect” qualifications therein) as of the Closing, as if made anew at and as of that time date (except with respect to those representations and warranties that speak address matters only as to an earlier of a specified date, the accuracy of which representations and warranties shall be true and correct at and determined as of that specified date in all respects). (b) Transferor shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date; provided that, with respect to agreements, covenants and conditions that are qualified by materiality, Transferor shall have performed such earlier date)agreements, except forcovenants and conditions, as so qualified, in all respects. (c) No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any material transaction contemplated hereby. (d) From the case date of clause (iii)this Agreement, there shall not have occurred any failures of such representations and warranties to be so true and correct that would not reasonably be expected to haveTransferor Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a Transferor Material Adverse Effect. (be) Each of the covenants of Sellers to be performed as of or prior to the Closing shall have been performed in all material respects. (c) Since the date of this Agreement, no event, change or circumstance shall have occurred that has had, or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. (d) Sellers Transferor shall have delivered to Acquiror a certificate signed by an officer, manager or other authorized individual of each Seller, dated the Closing Date, certifying that, duly executed counterparts to the knowledge Transaction Documents (other than this Agreement) to which Transferor is a party and belief of such individual(s), the conditions specified other documents and deliveries set forth in Section 8.2(a) and Section 8.2(b) have been satisfied3.02(a). (ef) Sellers All Encumbrances relating to the Acquired Assets shall have been released in full, other than Permitted Encumbrances, and Transferor shall have delivered to Acquiror a statement executed by ▇▇▇▇▇▇▇ US written evidence, in accordance with Section 1445(b)(3) form satisfactory to Acquiror in its sole discretion, of the Code and Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3) certifying that ▇▇▇▇▇▇▇ US is not a United States real property holding companyrelease of such Encumbrances. (fg) Sellers Acquiror shall have deliveredreceived a certificate, or at dated the Closing will deliverDate and signed by a duly authorized officer of Transferor, that each of the deliverables conditions set forth in Section 2.57.02(a) and Section 7.02(b) have been satisfied (the “Transferor Closing Certificate”). (h) Acquiror shall have received a certificate of the Secretary (or equivalent officer) of Transferor certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Transferor and the stockholders of Transferor authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect as of the Closing Date and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby. (i) Acquiror shall have received a certificate of the Secretary (or equivalent officer) of Transferor certifying the names and signatures of the officers of Transferor authorized to sign this Agreement, the Transaction Documents and the other documents to be delivered hereunder and thereunder. (j) Acquiror shall have received a certificate pursuant to Treasury Regulations Section 1.1445-2(b) (the “FIRPTA Certificate”) that Transferor is not a foreign person within the meaning of Section 1445 of the Code duly executed by Transferor.

Conditions to Obligations of Acquiror. The obligation obligations of Acquiror to consummate, or cause to be consummated, the transactions contemplated hereby Sale are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror: (a) Representations and Warranties. (i) The Each of the representations and warranties of Parent and Seller contained in this Agreement (without giving effect to any “Material Adverse Effect” or similar materiality qualification therein), other than the Sellers representations and warranties set forth in Sections Section 3.1, 3.2(aSection 3.2, Section 3.3, Section 3.4 and Section 3.17(a), 3.3, 3.4(a)(ii) and 3.7 shall be true and correct in all material respects as of the ClosingClosing Date, as if made anew at and as of that time (time, except with respect to representations and warranties that which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date), except, in each case, any inaccuracy or omission that would not, individually or in the aggregate, have or be reasonably expected to have, a Material Adverse Effect. (ii) Each of the representations and warranties of the Sellers set forth Parent and Seller contained in Section 3.6 3.1, Section 3.2, Section 3.3 and Section 3.4 shall be true and correct in all respects (other than de minimis inaccuracies or changes resulting from the Additional Structuring that do not result in a Company being less than wholly owned (directly or indirectly) by a Seller) as of the ClosingClosing Date, as if made anew at and as of that time (except with respect to representations the extent that any such representation and warranties that speak warranty speaks expressly as to of an earlier date, in which representations case such representation and warranties warranty shall be true and correct as of such earlier date). (iii) The representation and warranty of Parent and Seller contained in Section 3.17(a) shall be true and correct at and as of such earlier date) and (iii) the other representations and warranties of Sellers contained in this Agreement shall be true and correct (without giving effect to any materiality or “Material Adverse Effect” qualifications therein) as of the ClosingClosing Date, as if made anew at and as of that time (except with respect to representations and warranties that speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date), except for, in the case of clause (iii), any failures of such representations and warranties to be so true and correct that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effecttime. (b) Each of the covenants of Sellers Parent and Seller to be performed as of or prior to the Closing shall have been performed in all material respects. (c) Since the date of this Agreement, no event, change or circumstance shall have occurred that has had, or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. (d) Sellers Parent and Seller shall have delivered to Acquiror Acquiror: (i) a certificate signed by an officer, manager or other authorized individual officer of each Parent and an officer of Seller, dated the Closing Date, certifying that, to the knowledge and belief of such individual(s)officer, in his or her corporate capacity only and not individually, the conditions specified in Section 8.2(a) and Section 8.2(b) have been satisfiedfulfilled; (ii) a copy of Transaction Documents, duly executed by Seller, Parent and/or their Subsidiaries, as the case may be; (iii) all consents, approvals and authorizations from third parties listed on Schedule 8.2(c)(iii); (iv) the executed resignations and releases (in favor of Acquiror and the Acquired Companies) of the directors (or the equivalent) and officers of the Acquired Companies; (v) the minute books of the Acquired Companies; (vi) an affidavit of non-foreign status from Parent and CMC Processing that complies with Section 1445 of the Code; (vii) evidence that the Permits set forth on Schedule 8.2(c)(vii) have been obtained from the requisite Governmental Authority; (viii) evidence that the Contribution Agreement shall have been duly executed by all the parties thereto, and that all of the transactions contemplated in the Contribution Agreement that are required to take effect prior to the Closing have been consummated; (ix) copies of all instruments and documents necessary (A) to release any and all Liens on the Transferred Assets other than Permitted Liens, including appropriate UCC financing statement amendments (termination statements) and (B) for Parent, Seller or any of their Affiliates to repurchase, re-acquire or otherwise regain title to prior to the Effective Time all of the Receivables of the Business subject to the receivables financing facility agreements set forth as items two and three on Schedule 1.1(f); (x) evidence reasonably satisfactory to Acquiror that Parent and Seller can perform their obligations under the TSA without such performance causing a breach of the terms of the agreements set forth on Schedule 8.2(c)(x), such evidence to include a consent, license or other arrangement from the parties listed on Schedule 8.2(c)(x) reasonably satisfactory to Acquiror. (d) There shall have occurred no Event with respect to the Business since the date of this Agreement that, individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effect. (e) Sellers Parent and Seller shall have delivered caused CMC China and the CMC Russia Rep Office to sell, transfer and assign the Chinese Cometals Assets to Traxys China and the Russian Cometals Assets to Traxys Russia, respectively, pursuant to transfer instruments reasonably acceptable to Acquiror a statement and its legal counsel, and shall provide fully executed by ▇▇▇▇▇▇▇ US in accordance with Section 1445(b)(3) of the Code and Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3) certifying that ▇▇▇▇▇▇▇ US is not a United States real property holding companydocuments evidencing same. (f) Sellers have delivered, or at the Closing will deliver, the deliverables set forth in Section 2.5.

Conditions to Obligations of Acquiror. The obligation obligations of Acquiror to consummate, or cause to be consummated, the transactions contemplated hereby Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror: (a) (i) The representations and warranties of the Sellers set forth Company contained in Sections 3.1Section 4.9 shall be true and correct in all but de minimis respects as of the Closing Date, 3.2(a)except with respect to such representations and warranties which speak as to an earlier date, 3.3which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, 3.4(a)(iiexcept for changes after the date of this Agreement that are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than Section 4.9) shall be true and 3.7 correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects as of the Closing, as if made anew at and as of such date, except for changes after the date of this Agreement that time are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties that which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date), (ii) the representations and warranties of the Sellers set forth in Section 3.6 shall be true and correct in all respects (other than de minimis inaccuracies or changes resulting from the Additional Structuring that do not result in a Company being less than wholly owned (directly or indirectly) by a Seller) as of the Closing, as if made anew at and as of that time (except with respect to representations and warranties that speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date) and (iii) the other representations and warranties of Sellers contained in this Agreement shall be true and correct (without giving effect to any materiality or “Material Adverse Effect” qualifications therein) as of the Closing, as if made anew at and as of that time (except with respect to representations and warranties that speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date), except for, in the case of clause (iii)each case, any failures of such representations and warranties to be so true and correct inaccuracies or omissions that would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.; (b) Each of the covenants of Sellers the Company to be performed as of or prior to the Closing shall have been performed in all material respects.; (c) Since There shall not have occurred a Company Material Adverse Effect after the date of this Agreement, no event, change or circumstance shall have occurred Agreement that has had, or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.is continuing; and (d) Sellers The documentation referred to in Section 2.5(a) shall have been delivered to Acquiror a certificate signed by an officer, manager or other authorized individual of each Seller, dated the Closing Date, certifying that, to the knowledge and belief of such individual(s), the conditions specified in Section 8.2(a) and Section 8.2(b) have been satisfiedAcquiror. (e) Sellers shall have delivered to Acquiror a statement executed by ▇▇▇▇▇▇▇ US in accordance with Section 1445(b)(3) of the Code and Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3) certifying that ▇▇▇▇▇▇▇ US is not a United States real property holding company. (f) Sellers have delivered, or at the Closing will deliver, the deliverables set forth in Section 2.5.

Conditions to Obligations of Acquiror. The obligation obligations of Acquiror to consummate, or cause to be consummated, the transactions contemplated hereby Acquisition Transactions are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror: (a) (i) The representations and warranties of the Sellers set forth Company contained in Sections 3.1the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the date hereof and as of the Acquisition Closing Date, 3.2(aexcept with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, 3.3in each case as of the as of the date hereof and Acquisition Closing Date, 3.4(a)(ii) except with respect to such representations and 3.7 warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects as of the Closing, as if made anew at and as of that time such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, and (iii) each of the representations and warranties of the Company Parties contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the date hereof and as of the Acquisition Closing Date, except with respect to such representations and warranties that which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date), (ii) the representations and warranties of the Sellers set forth in Section 3.6 shall be true and correct in all respects (other than de minimis inaccuracies or changes resulting from the Additional Structuring that do not result in a Company being less than wholly owned (directly or indirectly) by a Seller) as of the Closing, as if made anew at and as of that time (except with respect to representations and warranties that speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date) and (iii) the other representations and warranties of Sellers contained in this Agreement shall be true and correct (without giving effect to any materiality or “Material Adverse Effect” qualifications therein) as of the Closing, as if made anew at and as of that time (except with respect to representations and warranties that speak as to an earlier date, which representations and warranties shall be true and correct at and as of such earlier date), except for, in the case of clause (iii)each case, any failures of such representations inaccuracies or omissions that have not had, and warranties to be so true and correct that would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.; (b) Each of the covenants of Sellers the Company Parties set forth in this Agreement to be performed as of or prior to the Acquisition Closing shall have been performed in all material respects.; (c) Since The Swiss NewCo Ordinary Shares issuable in connection with the transactions contemplated by this Agreement shall be duly authorized by the general meeting, management board or board of directors of Swiss NewCo and Swiss NewCo’s Governing Documents; and (d) There shall not have occurred and be continuing a Company Material Adverse Effect after the date of this Agreement, no event, change or circumstance shall have occurred that has had, or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. (d) Sellers shall have delivered to Acquiror a certificate signed by an officer, manager or other authorized individual of each Seller, dated the Closing Date, certifying that, to the knowledge and belief of such individual(s), the conditions specified in Section 8.2(a) and Section 8.2(b) have been satisfied. (e) Sellers shall have delivered to Acquiror a statement executed by ▇▇▇▇▇▇▇ US in accordance with Section 1445(b)(3) of the Code and Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3) certifying that ▇▇▇▇▇▇▇ US is not a United States real property holding company. (f) Sellers have delivered, or at the Closing will deliver, the deliverables set forth in Section 2.5.