Conditions to the Obligations of the Purchasers. The obligation of each Purchaser to effect the Sale and to consummate the other Contemplated Transactions shall be subject to the satisfaction or waiver (as permitted by applicable Law), at or prior to the Closing Date, of the following additional conditions: (a) The Seller Parties shall have made the deliveries required pursuant to Section 2.11(b) and Section 2.11(g). (b) The Seller Parties shall have performed in all material respects all of their respective obligations hereunder required to be performed by them on or prior to the Closing Date. (c) The representations and warranties set forth in Section 4.3 (Capital Structure), Section 4.4 (Authority), Section 4.21 (Vote Required) and Section 4.22 (Brokers; Fees) shall be true and correct in all but de minimis respects at and as of the Effective Date and as of the Closing, as though made as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date). (d) Each of the other representations and warranties of the Seller Parties contained in Article 4 of this Agreement, without giving effect to materiality, Target Company Material Adverse Effect or other similar qualifications, shall be true and correct at and as of the Effective Date and at and as of the Closing as if made at and as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date), except where the failure of such representations and warranties to be so true and correct have not and would not reasonably be expected to, individually or in the aggregate, have a Target Company Material Adverse Effect. (e) The representations and warranties set forth in Article 5 with respect to the Jersey Trust shall be true and correct in all respects at and as of the Effective Date and as of the Closing, as though made as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date). (f) No Target Company Material Adverse Effect shall have occurred since the Effective Date and be continuing on the Closing Date. (g) The Company shall have provided evidence reasonably satisfactory to the Purchasers that, effective as of the Closing Date, each Management Agreement has been terminated. (h) The Purchasers shall have obtained the New Forest Service Permits and Ground Lease Approvals in form and substance reasonably satisfactory to such Purchasers (it being agreed that if the foregoing condition has not been satisfied as of the Closing Date, and the Parties have nevertheless complied with their respective obligations under Section 8.7(g), then none of the Parties shall be subject to any liability or damages resulting from, or arising out of, the failure of such condition). (i) The Company shall have delivered to the Purchasers executed copies of the Debt Pay-off Letters and shall have paid or caused to be paid the Indebtedness Amount at the Closing (including by way of delivery of an irrevocable direction letter that the Ski Purchaser Closing Cash Consideration, the Canadian Purchaser Closing Consideration and/or the Attractions Purchaser Closing Cash Consideration shall be delivered to the applicable creditors). (j) Before the Closing Date, the Director under the Investment Canada Act (Canada) (the “ICA”) shall have sent a receipt to the Ski Purchaser under the ICA advising that the transactions contemplated by this Agreement are not reviewable, and the Minister under the ICA shall not have sent to the Ski Purchaser a notice under subsection 25.2(1) of the ICA within the prescribed period thereunder and the Governor in Council shall not have made an order under subsection 25.3(1) of the ICA in relation to the transactions contemplated by this Agreement or, if such a notice has been sent or such an order has been made, the Ski Purchaser shall have subsequently received (i) a notice under paragraph 25.2(4)(a) of the ICA indicating that a review of the transaction on grounds of national security will not be made, (ii) a notice under paragraph 25.3(6)(b) of the ICA indicating that no further action will be taken in respect of the transaction or (iii) a copy of an order under paragraph 25.4(1)(b) of the ICA authorizing the transaction, provided that order is on terms and conditions reasonably satisfactory to the Ski Purchaser.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Epr Properties), Purchase and Sale Agreement (CNL Lifestyle Properties Inc)
Conditions to the Obligations of the Purchasers. The obligation of each Purchaser to effect the Sale and to consummate the other Contemplated Transactions contemplated to occur at the Closing shall be subject to further conditioned upon the satisfaction or waiver (as permitted by applicable Law)fulfillment, at or prior to the Closing DateClosing, of the following additional conditions, unless waived by each such Purchaser:
(a) The Seller Parties terms, conditions and provisions of the Credit Documents shall be satisfactory to such Purchaser in all material respects, including without limitation provisions relating to principal amounts, rates of interest, terms of mandatory and permitted prepayments, prepayment charges (if any), fees and expenses, representations and warranties, affirmative and negative covenants, conditions to disbursements of loan funds, defaults and remedies therefor, and collateral, it being acknowledged that such terms, conditions and provisions shall be deemed to be satisfactory to such Purchaser if they are in the aggregate at least as favorable to the Company as the terms of the commitment letter referred to in Section 5.5(f). The disbursements of loan funds contemplated by the Credit Agreement to occur on the Closing Date shall be made in accordance with the terms thereof concurrently with the Closing and such Purchaser shall have made the deliveries required pursuant to Section 2.11(b) and Section 2.11(g)received such evidence thereof as it may request.
(b) The Seller Parties On the Closing Date, counsel to each Purchaser shall have performed in all material respects all of their respective obligations hereunder received the legal fees and expenses required to be performed paid or reimbursed by them the Company as provided in Section 10.4 for statements rendered on or prior to the Closing Date.
(c) The representations For each SBIC Holder, the Company shall have prepared the Size Status Declaration on Form 480, the Assurance of Compliance for Nondiscrimination on Form 652 and warranties the Portfolio Financing Report on Form 1031 (Parts A and B) (collectively, the "SBA Compliance Documents"), the Company shall have duly executed and delivered the Forms 480 and 652 to each SBIC Holder, and all of the information set forth in Section 4.3 (Capital Structure), Section 4.4 (Authority), Section 4.21 (Vote Required) and Section 4.22 (Brokers; Fees) the SBA Compliance Documents shall be true and correct in all but de minimis respects at and as of the Effective Date and as of the Closing, as though made as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date).
(d) Each of the other representations and warranties of the Seller Parties contained in Article 4 of this Agreement, without giving effect to materiality, Target Company Material Adverse Effect or other similar qualifications, shall be true and correct at and as of the Effective Date and at and as of the Closing as if made at and as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date), except where the failure of such representations and warranties to be so true and correct have not and would not reasonably be expected to, individually or in the aggregate, have a Target Company Material Adverse Effect.
(e) The representations and warranties set forth in Article 5 with respect to the Jersey Trust shall be true and correct in all respects at and as of the Effective Date and as of the Closing, as though made as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date).
(f) No Target Company Material Adverse Effect shall have occurred since the Effective Date and be continuing on the Closing Date.
(g) The Company shall have provided evidence reasonably satisfactory to the Purchasers that, effective as of the Closing Date, each Management Agreement has been terminated.
(h) The Purchasers shall have obtained the New Forest Service Permits and Ground Lease Approvals in form and substance reasonably satisfactory to such Purchasers (it being agreed that if the foregoing condition has not been satisfied as of the Closing Date, and the Parties have nevertheless complied with their respective obligations under Section 8.7(g), then none of the Parties shall be subject to any liability or damages resulting from, or arising out of, the failure of such condition).
(i) respects. The Company shall have delivered to the Purchasers executed copies of the Debt Pay-off Letters and shall have paid or caused to be paid the Indebtedness Amount at the Closing (including by way of delivery of an irrevocable direction letter that the Ski Purchaser Closing Cash Considerationa list, the Canadian Purchaser Closing Consideration and/or the Attractions Purchaser Closing Cash Consideration shall be delivered to the applicable creditors).
(j) Before the Closing Date, the Director under the Investment Canada Act (Canada) (the “ICA”) shall have sent a receipt to the Ski Purchaser under the ICA advising that the transactions contemplated by this Agreement are not reviewable, and the Minister under the ICA shall not have sent to the Ski Purchaser a notice under subsection 25.2(1) of the ICA within the prescribed period thereunder and the Governor in Council shall not have made an order under subsection 25.3(1) of the ICA in relation after giving effect to the transactions contemplated by this Agreement orAgreement, if of: (a) the name of each of the Company's directors, (b) the name and title of each of the Company's officers and (c) the name of each of the Company's stockholders and the number and class of shares held by each stockholder.
(d) The closing of the Alabama License Transfer, and the other transactions contemplated in the Central Alabama Agreement, shall have been consummated in accordance with the terms of the Central Alabama Agreement, and such a notice has been sent or such an order has been made, the Ski Purchaser shall have subsequently received (i) a notice such evidence thereof as it may request, and Mercury I's rights under paragraph 25.2(4)(a) of the ICA indicating that a review of the transaction on grounds of national security will not be made, (ii) a notice under paragraph 25.3(6)(b) of the ICA indicating that no further action will be taken in respect of the transaction or (iii) a copy of an order under paragraph 25.4(1)(b) of the ICA authorizing the transaction, provided that order is on terms and conditions reasonably satisfactory Central Alabama Agreement shall have been assigned to the Ski PurchaserCompany pursuant to documentation satisfactory in form and substance to the Purchasers.
Appears in 1 contract
Conditions to the Obligations of the Purchasers. The obligation of each Purchaser the Purchasers to effect proceed with the Sale and to consummate the other Contemplated Transactions shall be Closing contemplated hereby is subject to the satisfaction or waiver (as permitted by applicable Law), at or prior to the Closing Date, of the following additional conditions:
(a) The Seller Parties shall have made the deliveries required pursuant to Section 2.11(b) and Section 2.11(g).
(b) The Seller Parties shall have performed in all material respects all of their respective obligations hereunder required to be performed by them on or prior to the Closing Date.
Date of all of the following conditions, any one or more of which may be waived, in whole or in part, by SHLX: (ca) The representations and warranties of the Sellers set forth in Section 4.3 (Capital Structure)i) this Agreement ( other than the representations and warranties of the Sellers set forth in Sections 3.1, Section 4.4 (Authority)3.2, Section 4.21 (Vote Required) and Section 4.22 (Brokers; Fees3.12) shall be true and correct in all but de minimis respects at and (without giving effect to any materiality standard or Seller Material Adverse Effect qualification, except with respect to Section 3.6(a)) as of the Effective date of this Agreement and on the Closing Date as if made on such date, or in the case of representations and as of the Closing, as though warranties that are made as of the Closing (other than a specified date, such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date).
(d) Each of the other representations and warranties of the Seller Parties contained in Article 4 of this Agreement, without giving effect to materiality, Target Company Material Adverse Effect or other similar qualifications, shall be true and correct at and (without giving effect to any materiality standard or Seller Material Adverse Effect qualification, except with respect to Section 3.6(a)) as of the Effective Date and at and as of the Closing as if made at and as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date), except where to the extent that failure of such representations and warranties to be so true and correct have not and would not reasonably be expected tonot, individually or in the aggregate, have result in a Target Company Seller Material Adverse Effect.
, and (eii) The representations Sections 3.1, 3.2, and warranties set forth in Article 5 with respect to the Jersey Trust 3.12 shall be true and correct in all respects. The Sellers each shall have performed or complied in all material respects at with all obligations and as of covenants required by this Agreement to be performed or complied with by such Seller by the Effective Date and as time of the Closing. The Sellers shall each have delivered to SHLX a certificate, as though made dated as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date).
(f) No Target Company Material Adverse Effect shall have occurred since the Effective Date and be continuing on the Closing Date.
(g) The Company shall have provided evidence reasonably satisfactory to the Purchasers that, effective as signed by an authorized signatory of the Closing DateSeller, each Management Agreement has been terminated.
(h) The Purchasers shall have obtained or of the New Forest Service Permits and Ground Lease Approvals in form and substance reasonably satisfactory to such Purchasers (it being agreed that Seller’s general partner if applicable, confirming the foregoing condition has not been satisfied as of matters set forth in this Section 7.1(a) (respectively, the “SPLC Closing Date, Certificate,” the “GOM Closing Certificate,” and the Parties have nevertheless complied with their respective obligations under Section 8.7(g“Shell Chemical Closing Certificate”), then none of the Parties shall be subject to any liability or damages resulting from, or arising out of, the failure of such condition).
(i) The Company shall have delivered to the Purchasers executed copies of the Debt Pay-off Letters and shall have paid or caused to be paid the Indebtedness Amount at the Closing (including by way of delivery of an irrevocable direction letter that the Ski Purchaser Closing Cash Consideration, the Canadian Purchaser Closing Consideration and/or the Attractions Purchaser Closing Cash Consideration shall be delivered to the applicable creditors).
(j) Before the Closing Date, the Director under the Investment Canada Act (Canada) (the “ICA”) shall have sent a receipt to the Ski Purchaser under the ICA advising that the transactions contemplated by this Agreement are not reviewable, and the Minister under the ICA shall not have sent to the Ski Purchaser a notice under subsection 25.2(1) of the ICA within the prescribed period thereunder and the Governor in Council shall not have made an order under subsection 25.3(1) of the ICA in relation to the transactions contemplated by this Agreement or, if such a notice has been sent or such an order has been made, the Ski Purchaser shall have subsequently received (i) a notice under paragraph 25.2(4)(a) of the ICA indicating that a review of the transaction on grounds of national security will not be made, (ii) a notice under paragraph 25.3(6)(b) of the ICA indicating that no further action will be taken in respect of the transaction or (iii) a copy of an order under paragraph 25.4(1)(b) of the ICA authorizing the transaction, provided that order is on terms and conditions reasonably satisfactory to the Ski Purchaser.. 26
Appears in 1 contract
Sources: Purchase and Sale Agreement
Conditions to the Obligations of the Purchasers. The obligation of each Purchaser the Purchasers to effect proceed with the Sale and to consummate the other Contemplated Transactions shall be Closing contemplated hereby is subject to the satisfaction or waiver (as permitted by applicable Law), at on or prior to the Closing Date, Date of all of the following additional conditions, any one or more of which may be waived, in whole or in part, by SHLX:
(a) The Seller Parties shall have made the deliveries required pursuant to Section 2.11(b) and Section 2.11(g).
(b) The Seller Parties shall have performed in all material respects all of their respective obligations hereunder required to be performed by them on or prior to the Closing Date.
(c) The representations and warranties of the Sellers set forth in Section 4.3 (Capital Structure)i) this Agreement (other than the representations and warranties of the Sellers set forth in Sections 3.1, Section 4.4 (Authority)3.2, Section 4.21 (Vote Required) 3.16 and Section 4.22 (Brokers; Fees3.20) shall be true and correct in all but de minimis respects at and (without giving effect to any materiality standard or Seller Material Adverse Effect qualification, except with respect to Section 3.8(a)) as of the Effective date of this Agreement and on the Closing Date as if made on such date, or in the case of representations and as of the Closing, as though warranties that are made as of the Closing (other than a specified date, such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date).
(d) Each of the other representations and warranties of the Seller Parties contained in Article 4 of this Agreement, without giving effect to materiality, Target Company Material Adverse Effect or other similar qualifications, shall be true and correct at and (without giving effect to any materiality standard or Seller Material Adverse Effect qualification, except with respect to Section 3.8(a)) as of the Effective Date and at and as of the Closing as if made at and as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date), except where to the extent that failure of such representations and warranties to be so true and correct have not and would not reasonably be expected tonot, individually or in the aggregate, have result in a Target Company Seller Material Adverse Effect.
, and (eii) The representations Sections 3.1, 3.2, 3.16 and warranties set forth in Article 5 with respect to the Jersey Trust 3.20 shall be true and correct in all respects at and as of the Effective date of this Agreement and on the Closing Date as if made on such date. The Sellers each shall have performed or complied in all material respects with all obligations and as covenants required by this Agreement to be performed or complied with by such Seller by the time of the Closing. The Sellers shall each have delivered to SHLX a certificate, as though made dated as of the Closing Date and signed by an authorized signatory of the Seller, or of the Seller’s general partner if applicable, confirming the foregoing matters set forth in this Section 7.1(a) (respectively, the “SPLC Closing Certificate,” and the “SOPUS Closing Certificate”).
(b) All necessary filings with and consents, approvals, licenses, permits, orders and authorizations of any Governmental Authority required for the consummation of the transactions contemplated in this Agreement (including any required by the HSR Act, if applicable) shall have been made and obtained, and all waiting periods with respect to filings made with Governmental Authorities in contemplation of the consummation of the transactions described herein shall have expired or been terminated.
(c) All necessary consents of any Person not a party hereto, other than such representations any Governmental Authority, required for the consummation of the transactions contemplated in this Agreement shall have been made and warranties that expressly address matters only as obtained, including any consents set forth on Section 7.1(c) of another specified datethe Disclosure Letter.
(d) No statute, which need only rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction, judgment or other order shall have been enacted, entered, promulgated, enforced or issued by any Governmental Authority, or other legal restraint or prohibition preventing the consummation of the transactions contemplated hereby shall be true in effect, and correct as no investigation, action or proceeding before a Governmental Authority shall have been instituted or threatened challenging or seeking to restrain or prohibit the consummation of such date)the transactions contemplated hereby or to recover damages in connection herewith.
(e) Since the date of this Agreement, there shall not have occurred a Seller Material Adverse Effect.
(f) No Target Company Material Adverse Effect The Sellers or their respective designees shall have occurred since the Effective Date and be continuing on the Closing Date.
(g) The Company shall have provided evidence reasonably satisfactory to the Purchasers thatdelivered, effective as of the Closing Date, each Management Agreement has been terminated.
(h) The Purchasers shall have obtained the New Forest Service Permits and Ground Lease Approvals in form and substance reasonably satisfactory to such Purchasers (it being agreed that if the foregoing condition has not been satisfied as of the Closing Date, and the Parties have nevertheless complied with their respective obligations under Section 8.7(g), then none of the Parties shall be subject to any liability or damages resulting from, or arising out of, the failure of such condition).
(i) The Company shall have delivered to the Purchasers executed copies of the Debt Pay-off Letters and shall have paid or caused to be paid delivered, to SHLX all of the Indebtedness Amount at the Closing (including by way of delivery of an irrevocable direction letter that the Ski Purchaser Closing Cash Considerationdocuments, the Canadian Purchaser Closing Consideration and/or the Attractions Purchaser Closing Cash Consideration shall certificates and other instruments required to be delivered to under, and otherwise complied with the applicable creditors)provisions of, Section 2.3.
(j) Before the Closing Date, the Director under the Investment Canada Act (Canada) (the “ICA”) shall have sent a receipt to the Ski Purchaser under the ICA advising that the transactions contemplated by this Agreement are not reviewable, and the Minister under the ICA shall not have sent to the Ski Purchaser a notice under subsection 25.2(1) of the ICA within the prescribed period thereunder and the Governor in Council shall not have made an order under subsection 25.3(1) of the ICA in relation to the transactions contemplated by this Agreement or, if such a notice has been sent or such an order has been made, the Ski Purchaser shall have subsequently received (i) a notice under paragraph 25.2(4)(a) of the ICA indicating that a review of the transaction on grounds of national security will not be made, (ii) a notice under paragraph 25.3(6)(b) of the ICA indicating that no further action will be taken in respect of the transaction or (iii) a copy of an order under paragraph 25.4(1)(b) of the ICA authorizing the transaction, provided that order is on terms and conditions reasonably satisfactory to the Ski Purchaser.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Shell Midstream Partners, L.P.)
Conditions to the Obligations of the Purchasers. The obligation of each Purchaser to effect the Sale and to consummate the other Contemplated Transactions contemplated to occur at the Closing shall be subject to further conditioned upon the satisfaction or waiver (as permitted by applicable Law), fulfillment at or prior to the Closing DateClosing, of the following additional conditions, unless waived by each such Purchaser:
(a) The Seller Parties terms, conditions and provisions of the Credit Documents shall be satisfactory to such Purchaser in all material respects, including without limitation provisions relating to principal amounts, rates of interest, terms of mandatory and permitted prepayments, prepayment charges (if any), fees and expenses, representations and warranties, affirmative and negative covenants, conditions to disbursements of loan funds, defaults and remedies therefor and collateral, it being acknowledged that such terms, conditions and provisions shall be deemed to be satisfactory to such Purchaser if they are in the aggregate at least as favorable to the Company as the terms of the commitment letter referred to in Section 5.11 (a). The disbursements of loan funds contemplated by the Credit Agreement to occur on the Closing Date shall be made in accordance with the terms thereof concurrently with the Closing and such Purchaser shall have made the deliveries required pursuant to Section 2.11(b) and Section 2.11(g)received such evidence thereof as it may request.
(b) The Seller Parties On the Closing Date, counsel to each Purchaser shall have performed in all material respects all of their respective obligations hereunder received the legal fees and expenses required to be performed paid or reimbursed by them the Company as provided in Section 10.4 for statements rendered on or prior to the Closing Date.
(c) The representations For each SBIC Holder, the Company shall have prepared the Size Status Declaration on Form 480, the Assurance of Compliance for Nondiscrimination on Form 652 and warranties the Portfolio Financing Report on Form 1031 (Parts A and B) (collectively, the "SBA Compliance Documents"), the Company ------------------------ shall have duly executed and delivered the Forms 480 and 652 to each SBIC Holder, and all of the information set forth in Section 4.3 (Capital Structure), Section 4.4 (Authority), Section 4.21 (Vote Required) and Section 4.22 (Brokers; Fees) the SBA Compliance Documents shall be true and correct in all but de minimis respects at and as of the Effective Date and as of the Closing, as though made as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date).
(d) Each of the other representations and warranties of the Seller Parties contained in Article 4 of this Agreement, without giving effect to materiality, Target Company Material Adverse Effect or other similar qualifications, shall be true and correct at and as of the Effective Date and at and as of the Closing as if made at and as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date), except where the failure of such representations and warranties to be so true and correct have not and would not reasonably be expected to, individually or in the aggregate, have a Target Company Material Adverse Effect.
(e) The representations and warranties set forth in Article 5 with respect to the Jersey Trust shall be true and correct in all respects at and as of the Effective Date and as of the Closing, as though made as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date).
(f) No Target Company Material Adverse Effect shall have occurred since the Effective Date and be continuing on the Closing Date.
(g) The Company shall have provided evidence reasonably satisfactory to the Purchasers that, effective as of the Closing Date, each Management Agreement has been terminated.
(h) The Purchasers shall have obtained the New Forest Service Permits and Ground Lease Approvals in form and substance reasonably satisfactory to such Purchasers (it being agreed that if the foregoing condition has not been satisfied as of the Closing Date, and the Parties have nevertheless complied with their respective obligations under Section 8.7(g), then none of the Parties shall be subject to any liability or damages resulting from, or arising out of, the failure of such condition).
(i) respects. The Company shall have delivered to the Purchasers executed copies of the Debt Pay-off Letters and shall have paid or caused to be paid the Indebtedness Amount at the Closing (including by way of delivery of an irrevocable direction letter that the Ski Purchaser Closing Cash Considerationa list, the Canadian Purchaser Closing Consideration and/or the Attractions Purchaser Closing Cash Consideration shall be delivered to the applicable creditors).
(j) Before the Closing Date, the Director under the Investment Canada Act (Canada) (the “ICA”) shall have sent a receipt to the Ski Purchaser under the ICA advising that the transactions contemplated by this Agreement are not reviewable, and the Minister under the ICA shall not have sent to the Ski Purchaser a notice under subsection 25.2(1) of the ICA within the prescribed period thereunder and the Governor in Council shall not have made an order under subsection 25.3(1) of the ICA in relation after giving effect to the transactions contemplated by this Agreement orAgreement, if such a notice has been sent or such an order has been made, of: (a) the Ski Purchaser shall have subsequently received (i) a notice under paragraph 25.2(4)(a) name of each of the ICA indicating that a review Company's directors, (b) the name and title of each of the transaction on grounds Company's officers and (c) the name of national security will not be made, (ii) a notice under paragraph 25.3(6)(b) each of the ICA indicating that no further action will be taken in respect Company's stockholders and the number and class of the transaction or (iii) a copy of an order under paragraph 25.4(1)(b) of the ICA authorizing the transaction, provided that order is on terms and conditions reasonably satisfactory to the Ski Purchasershares held by each stockholder.
Appears in 1 contract
Conditions to the Obligations of the Purchasers. The obligation obligations of each Purchaser the Purchasers to effect the Sale and to consummate the other Contemplated Transactions Initial Closing shall be further subject to the satisfaction (or waiver (as permitted by waiver, if permissible under applicable Law), at ) on or prior to the Initial Closing Date, Date of the following additional conditions:
(a) The Seller Parties shall have made the deliveries required pursuant to Section 2.11(b) and Section 2.11(g).
(b) The Seller Parties shall have performed in all material respects all of their respective obligations hereunder required to be performed by them on or prior to the Closing Date.
(c) The representations and warranties of the Company (i) set forth in Section 4.3 (Capital StructureSections 3.01, 3.02(a), Section 4.4 (Authority3.03(a), Section 4.21 (Vote Required) 3.08, 3.09, 3.12, 3.13, 3.14, 3.15 and Section 4.22 (Brokers; Fees) 3.16 shall be true and correct in all but de minimis material respects at as of the date hereof and as of the Effective Initial Closing Date and as of with the Closing, same effect as though made as of the Initial Closing Date (other than such representations and warranties that except to the extent expressly address matters only made as of another specified an earlier date, in which need only be true and correct case as of such earlier date).
) and (dii) Each of the other representations and warranties of the Seller Parties contained set forth in Article 4 of this Agreement, without giving effect to materialityother than in Sections 3.01, Target Company Material Adverse Effect or other similar qualifications3.02(a), 3.03(a), 3.08, 3.09, 3.12, 3.13, 3.14, 3.15 and 3.16, shall be true and correct at (disregarding all qualifications or limitations as to “materiality”, “Material Adverse Effect” and words of similar import set forth therein) as of the Initial Closing Date with the same effect as though made as of the date hereof and as of the Effective Initial Closing Date and at and (except to the extent expressly made as of the Closing as if made at and an earlier date, in which case as of such earlier date), except, in the Closing case of this clause (other than such representations and warranties that expressly address matters only as of another specified dateii), which need only where the failure to be true and correct as of such date), except where the failure of such representations and warranties to be so true and correct have not and would not reasonably be expected tonot, individually or in the aggregate, reasonably be expected to have a Target Company Material Adverse Effect.;
(b) the Company shall have complied with or performed in all material respects its obligations required to be complied with or performed by it pursuant to this Agreement at or prior to the Initial Closing;
(c) the Purchasers shall have received a certificate, signed on behalf of the Company by an executive officer thereof, certifying that the conditions set forth in Section 6.03(a) and Section 6.03(b) have been satisfied;
(d) the Company shall have duly adopted and filed with the DSS the Certificate of Designations, and the Certificate of Designations shall have been accepted for record by the DSS and a certified copy thereof shall have been delivered to the Purchaser;
(e) The representations the Board shall have taken all actions necessary and warranties set forth in Article 5 with respect appropriate to elect ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to the Jersey Trust shall be true and correct in all respects at and as of Board, effective immediately upon the Effective Date and as of the Initial Closing, as though made as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date).;
(f) No Target Company Material Adverse Effect any shares of Common Stock issuable upon conversion of the Series A Preferred Stock (other than any additional shares of Series A Preferred Stock that may be issued as dividends in kind) at the Conversion Rate specified in the Certificate of Designations as in effect on the date hereof shall have occurred since the Effective Date and be continuing been approved for listing on the Closing Date.NYSE, subject to official notice of issuance;
(g) The Company Purchasers (or their counsel) shall have provided evidence reasonably satisfactory to the Purchasers that, effective as received a counterpart of this Agreement and each other Transaction Document signed by each of the Closing Daterequisite parties thereto (which may include delivery of a signed signature page of this Agreement and each other Transaction Document by facsimile or other means of electronic transmission (e.g., each Management Agreement has been terminated.“pdf”));
(h) The Purchasers shall have obtained received a written opinion of Sidley Austin LLP (i) dated as of the New Forest Service Permits Initial Closing Date, (ii) addressed to the Lead Purchasers and Ground Lease Approvals (iii) in form and substance reasonably satisfactory to such the Lead Purchasers (it being agreed that if covering the foregoing condition has not been satisfied as following matters with respect to the Company: due incorporation, valid existence and good standing; due authorization, execution and delivery of the Closing DateInvestment Agreement and Registration Rights Agreement; no conflict with organizational documents, applicable law, the Credit Agreement and the Parties have nevertheless complied with their respective obligations under Section 8.7(g)Indenture; no governmental consent; the shares of Series A Preferred Stock are validly issued, then none of the Parties shall be subject to any liability or damages resulting from, or arising out of, the failure of such condition).fully paid and non-assessable; no registration; and 1940 Act compliance;
(i) The Company Purchasers shall have delivered received a certificate of the Secretary or Assistant Secretary or similar officer of the Company dated as of the Initial Closing Date and certifying and attaching:
(i) a copy of the certificate of incorporation or other equivalent constituent and governing documents, including all amendments thereto (including, the Certificates of Designation), of the Company, certified as of a recent date by the Secretary of State of the State of Delaware;
(ii) a certificate as to the Purchasers executed copies good standing of the Debt PayCompany as of a recent date from the Secretary of State of the State of Delaware;
(iii) that attached thereto is a true and complete copy of the by-off Letters laws (or other equivalent constituent and shall have paid governing documents) of the Company as in effect on the Initial Closing Date and at all times since a date prior to the date of the resolutions described in Section 6.03(i)(iv);
(iv) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or caused equivalent governing body) of the Company authorizing the execution, delivery and performance of this Agreement and each other Transaction Document dated as of the Initial Closing Date to be paid which the Indebtedness Amount at the Closing (including by way of delivery of an irrevocable direction letter that the Ski Purchaser Closing Cash ConsiderationCompany is a party, the Canadian Purchaser Closing Consideration and/or filing of the Attractions Purchaser Closing Cash Consideration shall be delivered Certificates of Designation with the Secretary of State of the State of Delaware, the sale and purchase of the Series A Preferred Stock hereunder, the increase in the number of directors which constitute the Company’s board of directors and the election to the applicable creditors).board of directors of the Initial Purchaser Director Designee, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Initial Closing Date;
(v) as to the incumbency and specimen signature of each officer executing this Agreement, any other Transaction Document or any other document delivered in connection herewith or therewith on behalf of the Company; and
(vi) as to the absence of any pending proceeding for the dissolution or liquidation of the Company or, to the knowledge of the Company, threatening the existence of the Company; and
(j) Before The Lead Purchasers shall have received reimbursement for all reasonable and documented out-of-pocket fees and expenses, including reasonable travel expenses, incurred in connection with the Transaction Documents (including reasonable and documented fees, charges and disbursements of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇ ▇▇▇▇ LLP, Ropes & ▇▇▇▇ LLP, Deloitte & Touche) that have been invoiced to the Company not less than three Business Days prior to the Initial Closing Date, up to a maximum amount of $850,000 in the Director under the Investment Canada Act (Canada) (the “ICA”) shall have sent a receipt to the Ski Purchaser under the ICA advising that the transactions contemplated by this Agreement are not reviewable, and the Minister under the ICA shall not have sent to the Ski Purchaser a notice under subsection 25.2(1) of the ICA within the prescribed period thereunder and the Governor in Council shall not have made an order under subsection 25.3(1) of the ICA in relation to the transactions contemplated by this Agreement or, if such a notice has been sent or such an order has been made, the Ski Purchaser shall have subsequently received (i) a notice under paragraph 25.2(4)(a) of the ICA indicating that a review of the transaction on grounds of national security will not be made, (ii) a notice under paragraph 25.3(6)(b) of the ICA indicating that no further action will be taken in respect of the transaction or (iii) a copy of an order under paragraph 25.4(1)(b) of the ICA authorizing the transaction, provided that order is on terms and conditions reasonably satisfactory to the Ski Purchaser.aggregate;
Appears in 1 contract
Conditions to the Obligations of the Purchasers. The obligation obligations of each Purchaser the Purchaser(s) to effect the Sale and to consummate the other Contemplated Transactions shall purchase any Notes will be subject to the satisfaction or waiver (accuracy of the representations and warranties on the part of the Company herein as permitted by applicable Law)of the date of any related Terms Agreement and as of the Closing Date for such Notes, at or prior to the Closing Date, performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed and to the following additional conditionsconditions precedent:
(a) The Seller Parties No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have made the deliveries required pursuant to Section 2.11(b) been issued and Section 2.11(g)no proceedings for that purpose shall have been instituted or threatened.
(b) The Seller Parties If specified by any related Terms Agreement and except to the extent modified by such Terms Agreement, the Purchaser(s) shall have performed in all material respects all of their respective obligations hereunder required to be performed by them on or prior to the Closing Date.
received, appropriately updated, (ci) The representations and warranties set forth in Section 4.3 (Capital Structure), Section 4.4 (Authority), Section 4.21 (Vote Required) and Section 4.22 (Brokers; Fees) shall be true and correct in all but de minimis respects at and as a certificate of the Effective Date and as of the ClosingCompany, as though made as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date).
(d) Each of the other representations and warranties of the Seller Parties contained in Article 4 of this Agreement, without giving effect to materiality, Target Company Material Adverse Effect or other similar qualifications, shall be true and correct at and as of the Effective Date and at and as of the Closing as if made at and as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date), except where the failure of such representations and warranties to be so true and correct have not and would not reasonably be expected to, individually or in the aggregate, have a Target Company Material Adverse Effect.
(e) The representations and warranties set forth in Article 5 with respect to the Jersey Trust shall be true and correct in all respects at and as of the Effective Date and as of the Closing, as though made as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date).
(f) No Target Company Material Adverse Effect shall have occurred since the Effective Date and be continuing on the Closing Date.
(g) The Company shall have provided evidence reasonably satisfactory to the Purchasers that, effective dated as of the Closing Date, each Management Agreement has been terminated.
to the effect set forth in Section 5(d), (hii) The Purchasers shall have obtained the New Forest Service Permits and Ground Lease Approvals in form and substance reasonably satisfactory to such Purchasers (it being agreed that if opinion of Sidley & Austin, counsel for the foregoing condition has not been satisfied Company, dated as of the Closing Date, and to the Parties have nevertheless complied with their respective obligations under effect set forth in Section 8.7(g5(b), then none (iii) the opinion of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Purchaser(s), dated as of the Parties shall be subject Closing Date, to any liability or damages resulting fromthe effect set forth in Section 5(c), or arising out ofand (iv) a letter of Price Waterhouse, independent accountants for the failure Company, dated as of such conditionthe Closing Date, to the effect set forth in Section 5(e).
(ic) The Company shall have delivered Prior to the Purchasers executed copies of the Debt Pay-off Letters and shall have paid or caused to be paid the Indebtedness Amount at the Closing (including by way of delivery of an irrevocable direction letter that the Ski Purchaser Closing Cash Consideration, the Canadian Purchaser Closing Consideration and/or the Attractions Purchaser Closing Cash Consideration shall be delivered to the applicable creditors).
(j) Before the Closing Date, the Director under the Investment Canada Act (Canada) (the “ICA”) Company shall have sent a receipt furnished to the Ski Purchaser under Purchaser(s) such further information, certificates and documents as the ICA advising that Purchaser(s) may reasonably request. If any of the transactions contemplated by conditions specified in this Agreement are not reviewable, and the Minister under the ICA Section 6 shall not have sent been fulfilled in all material respects when and as provided in this Agreement and any Terms Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement or such Terms Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Ski Purchaser a notice under subsection 25.2(1Purchaser(s) and its counsel, such Terms Agreement and all obligations of the ICA within the prescribed period Purchaser(s) thereunder and the Governor in Council shall not have made an order under subsection 25.3(1) of the ICA in relation with respect to the transactions contemplated by this Agreement orNotes subject thereto may be canceled at, if such a notice has been sent or such an order has been madeat any time prior to, the Ski Purchaser respective Closing Date by the Purchaser(s). Notice of such cancellation shall have subsequently received (i) a notice under paragraph 25.2(4)(a) of the ICA indicating that a review of the transaction on grounds of national security will not be made, (ii) a notice under paragraph 25.3(6)(b) of the ICA indicating that no further action will be taken in respect of the transaction or (iii) a copy of an order under paragraph 25.4(1)(b) of the ICA authorizing the transaction, provided that order is on terms and conditions reasonably satisfactory given to the Ski PurchaserCompany in writing or by telephone or telegraph confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Purchasers. The obligation several obligations of each Purchaser the Purchasers to effect purchase the Sale and to consummate the other Contemplated Transactions Units shall be subject to the satisfaction or waiver (accuracy of the representations and warranties on the part of the Partnership contained herein as permitted by applicable Law), at or prior to of the Applicable Time and the Closing Date, to the accuracy of the statements of the Partnership made in any certificates pursuant to the provisions hereof, to the performance by the Partnership of its obligations hereunder and to the following additional conditions:
(a) The Seller Parties Final Prospectus and any supplement thereto have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Partnership pursuant to Rule 433(d) under the Act shall have made been filed with the deliveries required pursuant Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to Section 2.11(b) its use shall have been issued and Section 2.11(g)no proceedings for that purpose shall have been instituted or threatened.
(b) The Seller Parties Partnership shall have performed requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Partnership Entities, to have furnished to the Purchasers their opinion, dated the Closing Date and addressed to the Purchasers, substantially to the effect provided to the underwriters in all material respects connection with the offering of Common Units by the Partnership in September 2012, the form of which has been provided to the Purchasers.
(c) The General Partner shall have furnished to the Purchasers a certificate of the Partnership, signed on behalf of the Partnership by the Chief Financial Officer of the General Partner, dated the Closing Date, to the effect that the signers of such certificate have examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Partnership in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Partnership has complied with all of their respective obligations hereunder required the agreements and satisfied all of the conditions on its part to be performed by them on or satisfied at or prior to the Closing Date.;
(cii) The representations no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued, and warranties no proceedings for that purpose have been instituted or, to the Partnership's knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in Section 4.3 or contemplated in the Disclosure Package and the Final Prospectus (Capital Structure), Section 4.4 (Authority), Section 4.21 (Vote Required) and Section 4.22 (Brokers; Fees) shall be true and correct in all but de minimis respects at and as exclusive of the Effective Date and as of the Closing, as though made as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such dateany supplement thereto).
(d) Each Subsequent to the Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the other representations and warranties Partnership Entities taken as a whole, whether or not arising from transactions in the ordinary course of the Seller Parties contained in Article 4 of this Agreement, without giving effect to materiality, Target Company Material Adverse Effect or other similar qualifications, shall be true and correct at and as of the Effective Date and at and as of the Closing as if made at and as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date)business, except where the failure of such representations and warranties to be so true and correct have not and would not reasonably be expected to, individually as set forth in or contemplated in the aggregateDisclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, have a Target Company Material Adverse Effectin any case referred to above, is, in the sole judgment of either Purchaser, material and adverse to the Partnership Entities.
(e) The representations and warranties set forth in Article 5 with respect Prior to the Jersey Trust Closing Date, the Partnership shall be true have furnished to the Purchasers such further information, certificates and correct in all respects at and documents as of the Effective Date and as of the Closing, as though made as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date)Purchasers may reasonably request.
(f) No Target Company Material Adverse Effect The Units shall be listed and admitted and authorized for trading on the NYSE MKT, and reasonably satisfactory evidence of such actions shall have occurred since been provided to the Effective Purchasers. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Purchasers and counsel for the Purchasers, this Agreement and all obligations of the Purchasers hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchasers. Notice of such cancellation shall be given to the Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of counsel to the applicable Purchasers: Proskauer Rose LLP, Eleven ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ and be continuing ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
(g) The Company shall have provided evidence reasonably satisfactory to the Purchasers that, effective as of the Closing Date, each Management Agreement has been terminated.
(h) The Purchasers shall have obtained the New Forest Service Permits and Ground Lease Approvals in form and substance reasonably satisfactory to such Purchasers (it being agreed that if the foregoing condition has not been satisfied as of the Closing Date, and the Parties have nevertheless complied with their respective obligations under Section 8.7(g), then none of the Parties shall be subject to any liability or damages resulting from, or arising out of, the failure of such condition).
(i) The Company shall have delivered to the Purchasers executed copies of the Debt Pay-off Letters and shall have paid or caused to be paid the Indebtedness Amount at the Closing (including by way of delivery of an irrevocable direction letter that the Ski Purchaser Closing Cash Consideration, the Canadian Purchaser Closing Consideration and/or the Attractions Purchaser Closing Cash Consideration shall be delivered to the applicable creditors).
(j) Before the Closing Date, the Director under the Investment Canada Act (Canada) (the “ICA”) shall have sent a receipt to the Ski Purchaser under the ICA advising that the transactions contemplated by this Agreement are not reviewable, and the Minister under the ICA shall not have sent to the Ski Purchaser a notice under subsection 25.2(1) of the ICA within the prescribed period thereunder and the Governor in Council shall not have made an order under subsection 25.3(1) of the ICA in relation to the transactions contemplated by this Agreement or, if such a notice has been sent or such an order has been made, the Ski Purchaser shall have subsequently received (i) a notice under paragraph 25.2(4)(a) of the ICA indicating that a review of the transaction on grounds of national security will not be made, (ii) a notice under paragraph 25.3(6)(b) of the ICA indicating that no further action will be taken in respect of the transaction or (iii) a copy of an order under paragraph 25.4(1)(b) of the ICA authorizing the transaction, provided that order is on terms and conditions reasonably satisfactory to the Ski Purchaser.
Appears in 1 contract
Sources: Common Unit Purchase Agreement (Cheniere Energy Partners, L.P.)
Conditions to the Obligations of the Purchasers. The obligation of each Purchaser the Purchasers to effect proceed with the Sale and to consummate the other Contemplated Transactions shall be Closing contemplated hereby is subject to the satisfaction or waiver (as permitted by applicable Law), at on or prior to the Closing Date, Date of all of the following additional conditions, any one or more of which may be waived, in whole or in part, by SHLX:
(a) The Seller Parties shall have made the deliveries required pursuant to Section 2.11(b) and Section 2.11(g).
(b) The Seller Parties shall have performed in all material respects all of their respective obligations hereunder required to be performed by them on or prior to the Closing Date.
(c) The representations and warranties of the Sellers set forth in Section 4.3 (Capital Structure)i) this Agreement ( other than the representations and warranties of the Sellers set forth in Sections 3.1, Section 4.4 (Authority)3.2, Section 4.21 (Vote Required) and Section 4.22 (Brokers; Fees3.12) shall be true and correct in all but de minimis respects at and (without giving effect to any materiality standard or Seller Material Adverse Effect qualification, except with respect to Section 3.6(a)) as of the Effective date of this Agreement and on the Closing Date as if made on such date, or in the case of representations and as of the Closing, as though warranties that are made as of the Closing (other than a specified date, such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date).
(d) Each of the other representations and warranties of the Seller Parties contained in Article 4 of this Agreement, without giving effect to materiality, Target Company Material Adverse Effect or other similar qualifications, shall be true and correct at and (without giving effect to any materiality standard or Seller Material Adverse Effect qualification, except with respect to Section 3.6(a)) as of the Effective Date and at and as of the Closing as if made at and as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date), except where to the extent that failure of such representations and warranties to be so true and correct have not and would not reasonably be expected tonot, individually or in the aggregate, have result in a Target Company Seller Material Adverse Effect.
, and (eii) The representations Sections 3.1, 3.2, and warranties set forth in Article 5 with respect to the Jersey Trust 3.12 shall be true and correct in all respects. The Sellers each shall have performed or complied in all material respects at with all obligations and as of covenants required by this Agreement to be performed or complied with by such Seller by the Effective Date and as time of the Closing. The Sellers shall each have delivered to SHLX a certificate, as though made dated as of the Closing Date and signed by an authorized signatory of the Seller, or of the Seller’s general partner if applicable, confirming the foregoing matters set forth in this Section 7.1(a) (respectively, the “SPLC Closing Certificate,” the “GOM Closing Certificate,” and the “Shell Chemical Closing Certificate”).
(b) Except as otherwise provided in Section 5.3 and Section 5.5, all necessary filings with and consents, approvals, licenses, permits, orders and authorizations of any Governmental Authority required for the consummation of the transactions contemplated in this Agreement (including any required by the HSR Act, if applicable) shall have been made and obtained, and all waiting periods with respect to filings made with Governmental Authorities in contemplation of the consummation of the transactions described herein shall have expired or been terminated.
(c) Except as otherwise provided in Section 5.3, all necessary consents of any Person not a party hereto, other than such representations any Governmental Authority, required for the consummation of the transactions contemplated in this Agreement shall have been made and warranties that expressly address matters only as obtained, including any consents set forth on Section 7.1(c) of another specified datethe Disclosure Letter.
(d) No statute, which need only rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction, judgment or other order shall have been enacted, entered, promulgated, enforced or issued by any Governmental Authority, or other legal restraint or prohibition preventing the consummation of the transactions contemplated hereby shall be true in effect, and correct as no investigation, action or proceeding before a Governmental Authority shall have been instituted or threatened challenging or seeking to restrain or prohibit the consummation of such date)the transactions contemplated hereby or to recover damages in connection herewith.
(e) Since the date of this Agreement, there shall not have occurred a Seller Material Adverse Effect.
(f) No Target Company Material Adverse Effect The Sellers or their respective designees shall have occurred since the Effective Date and be continuing on the Closing Date.
(g) The Company shall have provided evidence reasonably satisfactory to the Purchasers thatdelivered, effective as of the Closing Date, each Management Agreement has been terminated.
(h) The Purchasers shall have obtained the New Forest Service Permits and Ground Lease Approvals in form and substance reasonably satisfactory to such Purchasers (it being agreed that if the foregoing condition has not been satisfied as of the Closing Date, and the Parties have nevertheless complied with their respective obligations under Section 8.7(g), then none of the Parties shall be subject to any liability or damages resulting from, or arising out of, the failure of such condition).
(i) The Company shall have delivered to the Purchasers executed copies of the Debt Pay-off Letters and shall have paid or caused to be paid delivered, to SHLX all of the Indebtedness Amount at the Closing (including by way of delivery of an irrevocable direction letter that the Ski Purchaser Closing Cash Considerationdocuments, the Canadian Purchaser Closing Consideration and/or the Attractions Purchaser Closing Cash Consideration shall certificates and other instruments required to be delivered to under, and otherwise complied with the applicable creditors)provisions of, Section 2.3.
(j) Before the Closing Date, the Director under the Investment Canada Act (Canada) (the “ICA”) shall have sent a receipt to the Ski Purchaser under the ICA advising that the transactions contemplated by this Agreement are not reviewable, and the Minister under the ICA shall not have sent to the Ski Purchaser a notice under subsection 25.2(1) of the ICA within the prescribed period thereunder and the Governor in Council shall not have made an order under subsection 25.3(1) of the ICA in relation to the transactions contemplated by this Agreement or, if such a notice has been sent or such an order has been made, the Ski Purchaser shall have subsequently received (i) a notice under paragraph 25.2(4)(a) of the ICA indicating that a review of the transaction on grounds of national security will not be made, (ii) a notice under paragraph 25.3(6)(b) of the ICA indicating that no further action will be taken in respect of the transaction or (iii) a copy of an order under paragraph 25.4(1)(b) of the ICA authorizing the transaction, provided that order is on terms and conditions reasonably satisfactory to the Ski Purchaser.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Shell Midstream Partners, L.P.)
Conditions to the Obligations of the Purchasers. The obligation obligations of each Purchaser to effect the Sale and to consummate the other Contemplated Transactions Purchasers hereunder shall be subject subject, in their discretion, to the satisfaction or waiver (as permitted by applicable Law)condition that all representations and warranties and other statements of the Issuers herein are, at or prior and as of the date hereof and the Time of Delivery, true and correct, the condition that the Issuers shall have performed all their obligations hereunder theretofore to the Closing Datebe performed, of and the following additional conditions:
(a) The Seller Parties Purchasers shall have made received from Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the deliveries required pursuant Purchasers, such opinion or opinions, dated the Time of Delivery and addressed to Section 2.11(bthe Purchasers, with respect to the issuance and sale of the Notes, the Indenture, the Registration Rights Agreement, the Offering Memorandum (as amended or supplemented at the Time of Delivery) and Section 2.11(g)other related matters as the Purchasers may reasonably require, and the Issuers shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(b) The Seller Parties ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Issuers, shall have performed furnished to you their written opinion, dated the Time of Delivery, substantially in all material respects all the form of their respective obligations hereunder required to be performed by them on or prior to the Closing Date▇▇▇▇▇ ▇▇ hereto.
(c) ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P., special regulatory counsel to the Issuers, shall have furnished to you their written opinion, dated the Time of Delivery, in form and substance reasonably satisfactory to you, to the effect that:
(i) The representations issue and warranties sale of the Notes and the compliance by the Issuers with all the provisions of the Notes, the Indenture, the Registration Rights Agreement and this Agreement and the consummation of the transactions herein and therein contemplated do not and will not contravene the Cable Acts or any order, rule or regulation of the FCC to which the Issuers or any of their Parent Companies or subsidiaries or any of their property is subject. However, to the extent that any document purports to grant a security interest in licenses issued by the FCC, the FCC has taken the position that security interests in FCC licenses are not valid. To the extent that any party seeks to exercise control of an FCC license in the event of a default or for any other reason, it may be necessary to obtain prior FCC consent;
(ii) To the best of such counsel's knowledge, no consent, approval, authorization or order of, or registration, qualification or filing with the FCC is required under the Cable Acts or any order, rule or regulation of the FCC in connection with the issue and sale of the Notes and the compliance by the Issuers with all the provisions of the Notes, the Indenture, the Registration Rights Agreement and this Agreement and the consummation of the transactions herein and therein contemplated. However, to the extent that any document purports to grant a security interest in licenses issued by the FCC, the FCC has taken the position that security interests in FCC licenses are not valid. To the extent that any party seeks to exercise control of an FCC license in the event of a default or for any other reason, it may be necessary to obtain prior FCC consent;
(iii) The statements set forth in Section 4.3 the Offering Memorandum under the captions "Risk Factors" under the subheading "Risks Relating to Regulatory and Legislative Matters" and in "Regulation and Legislation," insofar as they constitute summaries of laws referred to therein, concerning the Cable Acts and the published rules, regulations and policies promulgated by the FCC thereunder, fairly summarize the matters described therein;
(Capital Structure), Section 4.4 (Authority), Section 4.21 (Vote Requirediv) and Section 4.22 (Brokers; Fees) shall be true and correct in all but de minimis respects at and as To the knowledge of such counsel based solely upon its review of publicly available records of the Effective Date FCC and as operational information provided by the Issuers' and their Parent Companies and subsidiaries' management, the Company and its Parent Companies and subsidiaries hold all FCC licenses for cable antenna relay services necessary to conduct the business of the Closing, Company and its subsidiaries as though made as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date).
(d) Each of the other representations and warranties of the Seller Parties contained in Article 4 of this Agreement, without giving effect to materiality, Target Company Material Adverse Effect or other similar qualifications, shall be true and correct at and as of the Effective Date and at and as of the Closing as if made at and as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date)currently conducted, except where to the extent the failure of to hold such representations and warranties to be so true and correct have not and FCC licenses would not reasonably be expected tonot, individually or in the aggregate, be reasonably expected to have a Target Company Material Adverse Effect.; and
(ev) The representations Except as disclosed in the Offering Memorandum and warranties set forth in Article 5 except with respect to the Jersey Trust shall be true rate regulation matters, and correct in all respects at general rulemakings and as of the Effective Date and as of the Closing, as though made as of the Closing (other than such representations and warranties that expressly address similar matters only as of another specified date, which need only be true and correct as of such date).
(f) No Target Company Material Adverse Effect shall have occurred since the Effective Date and be continuing on the Closing Date.
(g) The Company shall have provided evidence reasonably satisfactory relating generally to the Purchasers thatcable television industry, effective as of the Closing Date, each Management Agreement has been terminated.
(h) The Purchasers shall have obtained the New Forest Service Permits and Ground Lease Approvals in form and substance reasonably satisfactory to such Purchasers (it being agreed that if the foregoing condition has not been satisfied as of the Closing Datecounsel's knowledge, and the Parties have nevertheless complied with their respective obligations under Section 8.7(g), then none of the Parties shall be subject to any liability or damages resulting from, or arising out of, the failure of such condition).
(i) The Company shall have delivered to the Purchasers executed copies of the Debt Pay-off Letters and shall have paid or caused to be paid the Indebtedness Amount at the Closing (including by way of delivery of an irrevocable direction letter that the Ski Purchaser Closing Cash Consideration, the Canadian Purchaser Closing Consideration and/or the Attractions Purchaser Closing Cash Consideration shall be delivered to the applicable creditors).
(j) Before the Closing Date, the Director under the Investment Canada Act (Canada) (the “ICA”) shall have sent a receipt to the Ski Purchaser under the ICA advising that the transactions contemplated by this Agreement are not reviewable, and the Minister under the ICA shall not have sent to the Ski Purchaser a notice under subsection 25.2(1) of the ICA within the prescribed period thereunder and the Governor in Council shall not have made an order under subsection 25.3(1) of the ICA in relation to the transactions contemplated by this Agreement or, if such a notice has been sent or such an order has been made, the Ski Purchaser shall have subsequently received (i) a notice under paragraph 25.2(4)(a) of the ICA indicating that a based solely upon its review of the transaction on grounds of national security will not be made, (ii) a notice under paragraph 25.3(6)(b) publicly available records of the ICA indicating that no further action will be taken in respect FCC and upon inquiry of the transaction or (iii) a copy of an order under paragraph 25.4(1)(b) Issuer's and their Parent Companies' and subsidiaries' management, during the time the cable systems of the ICA authorizing Company and its Parent Companies and subsidiaries have been owned by the transactionCompany and its Parent Companies and subsidiaries (A) there has been no adverse FCC judgment, provided that order is on terms and conditions reasonably satisfactory or decree issued by the FCC relating to the Ski Purchaser.ongoing operations of any of the Company or one of its subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect; and (B) there are no actions, suits, proceedings, inquiries or investigations by or before the FCC pending or threatened in writing against or specifically affecting the Company or any of its Parent Companies or subsidiaries or any cable system of the Company or any of its Parent Companies or subsidiaries which could, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect;
Appears in 1 contract
Sources: Purchase Agreement (Charter Communications Inc /Mo/)
Conditions to the Obligations of the Purchasers. The obligation obligations of each Purchaser of the Purchasers to effect the Sale and to consummate the other Contemplated Transactions fulfill its obligations under Section 2.1 hereof shall be subject to the satisfaction or waiver (as permitted by applicable Law), at or prior to the Closing Date, of the following additional conditions:
(a) The Seller Parties shall have made Each of the deliveries required pursuant to Section 2.11(b) and Section 2.11(g).
(b) The Seller Parties shall have performed in all material respects all of their respective obligations hereunder required to be performed by them on or prior to the Closing Date.
(c) The representations and warranties set forth of the Company contained in Section 4.3 (Capital Structure), Section 4.4 (Authority), Section 4.21 (Vote Required) and Section 4.22 (Brokers; Fees) this Agreement shall be true and correct in all but de minimis material respects at and as of the Effective Date and as of the Closing, as though made as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date).
(d) Each of the other representations and warranties of the Seller Parties contained in Article 4 date of this Agreement, without giving effect to materiality, Target Company Material Adverse Effect or other similar qualifications, shall be true and correct at and as of the Effective Date and at Agreement and as of the Closing Date as if made at on the Closing Date (or on the date when made in the case of any representation or warranty which specifically relates to an earlier date); the Company shall have performed, in all material respects, each of its covenants and as agreements contained in this Agreement to be performed prior to the Closing; and each of the Purchasers shall have received a certificate signed by the Chief Executive Officer and the Chief Financial Officer of the Company, dated the Closing Date, to the foregoing effect.
(other than such representations b) The Company shall have delivered to each Purchaser a Senior Note, certificate evidencing Series A Preferred Stock and warranties that expressly address matters only as a Warrant, in each case registered in the name of another specified datethe Purchaser, which need only be true and correct as of such date), except where sufficient to evidence the failure of such representations and warranties Securities in the Units to be so true issued and correct sold by the Company and purchased by the Purchaser, as set forth on Exhibit A hereto, against payment therefor to the Company in the amount of $500,000 per Unit (subject to pro rata adjustment in the case of any Fractional Unit).
(c) Each Purchaser shall have received such written confirmations from the OTS as may be reasonably determined by it to be necessary to ensure that upon consummation of the transactions contemplated by Section 2.1 hereof it will not be deemed to be in control of the Company or subject to a rebuttable presumption of control of the Company under the HOLA and would not reasonably be expected to12 C.F.R. Part 574, and no such confirmation shall include any condition or requirement that, individually or in the aggregate, would reduce the benefits of the transactions contemplated by this Agreement in so significant a manner that the party, in its judgment, would not have entered into this Agreement had such condition or requirement been known at the date hereof.
(d) The Company shall have delivered to each Purchaser a Target certificate signed by the Chief Executive Officer and Chief Financial Officer of the Company, dated the Closing Date, to the following effect:
(i) at November 30, 1995, the Company Material Adverse Effecthad not less than $23,500,000 of consolidated shareholders' equity under generally accepted accounting principles;
(ii) at November 30, 1995, the Company's consolidated general allowance for loan losses and consolidated general allowance for losses on Real Estate Owned (x) amounted to not less than $12,500,000 in the aggregate and (y) complied with any applicable requirement of the OTS, including without limitation the requirements set forth in a letter, dated October 5, 1995, from Timothy J. Layne, Assistant Regional Director of the OTS, to ▇▇▇▇▇ A. Braly;
(iii) from August 1, ▇▇▇▇ ▇▇ ▇▇▇▇▇ber 30, 1995, the Company received not less than $14,000,000 of net proceeds from the sale of Real Estate Owned (other than apartment buildings), which sales in each case have been recorded by the Company as such under generally accepted accounting principles;
(iv) at November 30, 1995, the Company's consolidated Non-performing Assets amounted to not more than $50,600,000; and
(v) to the best of the knowledge and belief of each such officer, no event has occurred subsequent to November 30, 1995 which would make the statements in clauses (i)-(iv) above inaccurate.
(e) The representations and warranties set forth Unless waived by the Purchasers in Article 5 accordance with respect Section 6.3(a) hereof, either (i) the Company's issuance of the Warrants included in the Units to be sold pursuant to this Agreement shall have been approved by the requisite vote of the holders of the Common Stock pursuant to Section 6(i)(1)(D) of Part III to Schedule D of the Bylaws of the NASD or (ii) the Company shall have obtained an exemption from such requirement to obtain shareholder approval upon application to the Jersey Trust shall be true NASD and correct in mailed to all respects at and as shareholders of the Effective Date and as Company the notice referred to in Section 6(i)(1)(e) of Part III to Schedule D of the Closing, as though made as Bylaws of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date)NASD.
(f) No Target Company Material Adverse Effect Members of Management shall have occurred since agreed, by their execution of this Agreement, to purchase in the Effective Date and aggregate not less than 5% of the aggregate Units to be continuing on sold by the Closing DateCompany pursuant to this Agreement.
(g) The Company Each Purchaser shall have provided evidence reasonably satisfactory to the Purchasers thatreceived, effective as of the Closing Date, each Management Agreement has been terminated.
(h) The Purchasers shall have obtained the New Forest Service Permits and Ground Lease Approvals in form and substance reasonably satisfactory to such it, an opinion, addressed to the Purchasers (it being agreed that if the foregoing condition has not been satisfied as of and dated the Closing Date, of Mayer, Brown & Platt, counsel for the Company and the Parties Ba▇▇, ▇it▇ ▇▇▇pec▇ ▇▇ the matters set forth in Exhibit H hereto.
(h) No party to this Agreement (other than the relevant Purchaser) shall be in material breach of this Agreement unless such breach shall have nevertheless complied with their respective obligations under Section 8.7(g), then none been waived in writing by each of the Parties shall be subject other parties to any liability or damages resulting from, or arising out of, the failure of such condition)this Agreement.
(i) The Company Each Purchaser shall have delivered received such other certificates, opinions, documents and instruments related to the Purchasers executed copies transactions contemplated hereby as may have been reasonably required by it and are customary for transactions of the Debt Pay-off Letters this type, and shall have paid or caused to be paid the Indebtedness Amount at the Closing (including by way of delivery of an irrevocable direction letter that the Ski Purchaser Closing Cash Considerationall corporate and other proceedings, the Canadian Purchaser Closing Consideration and/or the Attractions Purchaser Closing Cash Consideration shall be delivered to the applicable creditors).
(j) Before the Closing Dateand all documents, the Director under the Investment Canada Act (Canada) (the “ICA”) shall have sent a receipt to the Ski Purchaser under the ICA advising that instruments and other legal matters in connection with the transactions contemplated by this Agreement are not reviewableAgreement, and the Minister under the ICA shall not have sent to the Ski Purchaser a notice under subsection 25.2(1) of the ICA within the prescribed period thereunder and the Governor in Council shall not have made an order under subsection 25.3(1) of the ICA in relation to the transactions contemplated by this Agreement or, if such a notice has been sent or such an order has been made, the Ski Purchaser shall have subsequently received (i) a notice under paragraph 25.2(4)(a) of the ICA indicating that a review of the transaction on grounds of national security will not be made, (ii) a notice under paragraph 25.3(6)(b) of the ICA indicating that no further action will be taken in respect of the transaction or (iii) a copy of an order under paragraph 25.4(1)(b) of the ICA authorizing the transaction, provided that order is on terms and conditions reasonably satisfactory in form and substance to the Ski Purchaserit and its counsel.
Appears in 1 contract
Conditions to the Obligations of the Purchasers. The obligation obligations of each Purchaser of the Purchasers to effect the Sale and to consummate the other Contemplated Transactions fulfill its obligations under Section 2.1 hereof shall be subject to the satisfaction or waiver (as permitted by applicable Law), at or prior to the Closing Date, of the following additional conditions:
(a) The Seller Parties shall have made Each of the deliveries required pursuant to Section 2.11(b) and Section 2.11(g).
(b) The Seller Parties shall have performed in all material respects all of their respective obligations hereunder required to be performed by them on or prior to the Closing Date.
(c) The representations and warranties set forth of the Company contained in Section 4.3 (Capital Structure), Section 4.4 (Authority), Section 4.21 (Vote Required) and Section 4.22 (Brokers; Fees) this Agreement shall be true and correct in all but de minimis material respects at and as of the Effective Date and as of the Closing, as though made as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date).
(d) Each of the other representations and warranties of the Seller Parties contained in Article 4 date of this Agreement, without giving effect to materiality, Target Company Material Adverse Effect or other similar qualifications, shall be true and correct at and as of the Effective Date and at Agreement and as of the Closing Date as if made at on the Closing Date (or on the date when made in the case of any representation or warranty which specifically relates to an earlier date); the Company shall have performed, in all material respects, each of its covenants and as agreements contained in this Agreement to be performed prior to the Closing; and each of the Purchasers shall have received a certificate signed by the Chief Executive Officer and the Chief Financial Officer of the Company, dated the Closing Date, to the foregoing effect.
(other than such representations b) The Company shall have delivered to each Purchaser a Senior Note, certificate evidencing Series A Preferred Stock and warranties that expressly address matters only as a Warrant, in each case registered in the name of another specified datethe Purchaser, which need only be true and correct as of such date), except where sufficient to evidence the failure of such representations and warranties Securities in the Units to be so true issued and correct sold by the Company and purchased by the Purchaser, as set forth on Exhibit A hereto, against payment therefor to the Company in the amount of $500,000 per Unit (subject to pro rata adjustment in the case of any Fractional Unit).
(c) Each Purchaser shall have received such written confirmations from the OTS as may be reasonably determined by it to be necessary to ensure that upon consummation of the transactions contemplated by Section 2.1 hereof it will not be deemed to be in control of the Company or subject to a rebuttable presumption of control of the Company under the HOLA and would not reasonably be expected to12 C.F.R. Part 574, and no such confirmation shall include any condition or requirement that, individually or in the aggregate, would reduce the benefits of the transactions contemplated by this Agreement in so significant a manner that the party, in its judgment, would not have entered into this Agreement had such condition or requirement been known at the date hereof.
(d) The Company shall have delivered to each Purchaser a Target certificate signed by the Chief Executive Officer and Chief Financial Officer of the Company, dated the Closing Date, to the following effect:
(i) at November 30, 1995, the Company Material Adverse Effecthad not less than $23,500,000 of consolidated shareholders' equity under generally accepted accounting principles;
(ii) at November 30, 1995, the Company's consolidated general allowance for loan losses and consolidated general allowance for losses on Real Estate Owned (x) amounted to not less than $12,500,000 in the aggregate and (y) complied with any applicable requirement of the OTS, including without limitation the requirements set forth in a letter, dated October 5, 1995, from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Assistant Regional Director of the OTS, to ▇▇▇▇▇ ▇. ▇▇▇▇▇;
(iii) from August 1, 1995 to November 30, 1995, the Company received not less than $14,000,000 of net proceeds from the sale of Real Estate Owned (other than apartment buildings), which sales in each case have been recorded by the Company as such under generally accepted accounting principles;
(iv) at November 30, 1995, the Company's consolidated Non- performing Assets amounted to not more than $50,600,000; and
(v) to the best of the knowledge and belief of each such officer, no event has occurred subsequent to November 30, 1995 which would make the statements in clauses (i)-(iv) above inaccurate.
(e) The representations and warranties set forth Unless waived by the Purchasers in Article 5 accordance with respect Section 6.3(a) hereof, either (i) the Company's issuance of the Warrants included in the Units to be sold pursuant to this Agreement shall have been approved by the requisite vote of the holders of the Common Stock pursuant to Section 6(i)(1)(D) of Part III to Schedule D of the Bylaws of the NASD or (ii) the Company shall have obtained an exemption from such requirement to obtain shareholder approval upon application to the Jersey Trust shall be true NASD and correct in mailed to all respects at and as shareholders of the Effective Date and as Company the notice referred to in Section 6(i)(1)(e) of Part III to Schedule D of the Closing, as though made as Bylaws of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date)NASD.
(f) No Target Company Material Adverse Effect Members of Management shall have occurred since agreed, by their execution of this Agreement, to purchase in the Effective Date and aggregate not less than 5% of the aggregate Units to be continuing on sold by the Closing DateCompany pursuant to this Agreement.
(g) The Company Each Purchaser shall have provided evidence reasonably satisfactory to the Purchasers thatreceived, effective as of the Closing Date, each Management Agreement has been terminated.
(h) The Purchasers shall have obtained the New Forest Service Permits and Ground Lease Approvals in form and substance reasonably satisfactory to such it, an opinion, addressed to the Purchasers (it being agreed that if the foregoing condition has not been satisfied as of and dated the Closing Date, of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company and the Parties Bank, with respect to the matters set forth in Exhibit H hereto.
(h) No party to this Agreement (other than the relevant Purchaser) shall be in material breach of this Agreement unless such breach shall have nevertheless complied with their respective obligations under Section 8.7(g), then none been waived in writing by each of the Parties shall be subject other parties to any liability or damages resulting from, or arising out of, the failure of such condition)this Agreement.
(i) The Company Each Purchaser shall have delivered received such other certificates, opinions, documents and instruments related to the Purchasers executed copies transactions contemplated hereby as may have been reasonably required by it and are customary for transactions of the Debt Pay-off Letters this type, and shall have paid or caused to be paid the Indebtedness Amount at the Closing (including by way of delivery of an irrevocable direction letter that the Ski Purchaser Closing Cash Considerationall corporate and other proceedings, the Canadian Purchaser Closing Consideration and/or the Attractions Purchaser Closing Cash Consideration shall be delivered to the applicable creditors).
(j) Before the Closing Dateand all documents, the Director under the Investment Canada Act (Canada) (the “ICA”) shall have sent a receipt to the Ski Purchaser under the ICA advising that instruments and other legal matters in connection with the transactions contemplated by this Agreement are not reviewableAgreement, and the Minister under the ICA shall not have sent to the Ski Purchaser a notice under subsection 25.2(1) of the ICA within the prescribed period thereunder and the Governor in Council shall not have made an order under subsection 25.3(1) of the ICA in relation to the transactions contemplated by this Agreement or, if such a notice has been sent or such an order has been made, the Ski Purchaser shall have subsequently received (i) a notice under paragraph 25.2(4)(a) of the ICA indicating that a review of the transaction on grounds of national security will not be made, (ii) a notice under paragraph 25.3(6)(b) of the ICA indicating that no further action will be taken in respect of the transaction or (iii) a copy of an order under paragraph 25.4(1)(b) of the ICA authorizing the transaction, provided that order is on terms and conditions reasonably satisfactory in form and substance to the Ski Purchaserit and its counsel.
Appears in 1 contract
Conditions to the Obligations of the Purchasers. The obligation obligations of each Purchaser the Purchasers to effect purchase the Sale and to consummate the other Contemplated Transactions Securities shall be subject to the satisfaction accuracy of the representations and warranties on the part of the Issuer and the Guarantors contained herein (or waiver (the accuracy in all material respects with respect to any representation or warranty on the part of the Issuer and the Guarantors which has no materiality qualification) as permitted by applicable Law), at or prior to of the Closing Date, to the accuracy of the statements of the Issuer and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Issuer and each of the Guarantors of its obligations hereunder, to the due execution and delivery of the Indenture, to the absence of any event or condition which would give the Purchasers the right to terminate this Agreement and to the following additional conditions:
(a) The Seller Parties Final Prospectus, and any supplement thereto, will be filed in the manner required by Rule 424(b) on or before the Closing Date in the form furnished to the Purchasers and/or their legal advisors prior to the date hereof; and any other material required to be filed by the Issuer pursuant to Rule 433(d) under the Securities Act shall have made been filed with the deliveries required Commission within the applicable time periods prescribed for such filings by Rule 433; the Issuer shall not have received from the Commission any notice pursuant to Section 2.11(bRule 401(g)(2) and Section 2.11(g)objecting to use of the automatic shelf registration statement form and, at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission.
(b) The Seller Parties Issuer shall have performed furnished to the Purchasers and/or their legal advisors the opinion of ▇▇▇▇▇ & Case LLP, counsel to the Issuer and Guarantors, dated the Closing Date, in form and substance satisfactory to the Purchasers.
(c) The Issuer shall have furnished to the Purchasers and/or their legal advisors a certificate of the Issuer, signed by the Chief Financial Officer of the Issuer, dated the Closing Date, to the effect that the signers of such certificate have examined the Registration Statement, the Final Prospectus and any supplements or amendments to any of the foregoing and this Agreement and that:
(i) the representations and warranties of the Issuer and the Guarantors in this Agreement are true and correct in all material respects on and as of the Closing Date and the Issuer and each of the Guarantors has complied with all of their respective obligations hereunder required the agreements and satisfied all the conditions on its part to be performed by them on or satisfied at or prior to the Closing Date.;
(cii) The representations and warranties set forth condition in Section 4.3 paragraph (Capital Structure), Section 4.4 f) below has been satisfied; and
(Authority), Section 4.21 (Vote Requirediii) and Section 4.22 (Brokers; Fees) shall be true and correct in all but de minimis respects at and as no stop order suspending the effectiveness of the Effective Date Registration Statement has been issued and as of no proceedings for that purpose have been instituted or, to the ClosingIssuer’s knowledge, as though made as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date)threatened.
(d) Each Prior to the Closing Date, the Issuer shall have furnished to the Purchasers and/or their legal advisors such further information, certificates and documents as the Purchasers may reasonably request.
(e) Prior to, or simultaneously with, the Closing Date, the Exchange Transactions (as defined in the Transaction Support Agreement) shall have been successfully completed in accordance with the terms and conditions set forth in the Transaction Support Agreement.
(f) Since the date of the other representations and warranties of the Seller Parties contained in Article 4 of this AgreementCommitment Agreements, without giving effect to materiality, Target Company Material Adverse Effect or other similar qualifications, there shall be true and correct at and as of the Effective Date and at and as of the Closing as if made at and as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date), except where the failure of such representations and warranties to be so true and correct not have not and would not reasonably be expected to, individually or in the aggregate, have a Target Company occurred any Material Adverse Effect.
(e) The representations and warranties set forth in Article 5 with respect to the Jersey Trust shall be true and correct in all respects at and as of the Effective Date and as of the Closing, as though made as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date).
(f) No Target Company Material Adverse Effect shall have occurred since the Effective Date and be continuing on the Closing Date.
(g) The Company Securities shall be eligible for clearance and settlement through the facilities of DTC. If any of the conditions specified in this Section 3 shall not have been fulfilled in all material respects when and as provided evidence in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory to the Purchasers that, effective as of the Closing Date, each Management Agreement has been terminated.
(h) The Purchasers shall have obtained the New Forest Service Permits and Ground Lease Approvals in form and substance reasonably satisfactory to such Purchasers (it being agreed that if the foregoing condition has not been satisfied as Requisite Consenting Parties, this Agreement and all obligations of the Purchasers hereunder may be canceled at, or at any time prior to, the Closing Date, Date by the Requisite Consenting Parties and the Parties have nevertheless complied with their respective obligations under Section 8.7(g), then none of the Parties such cancellation shall be subject without liability of any party to any liability or damages resulting fromother party, or arising out of, except to the failure extent provided in Section 7. Notice of such condition).
(i) The Company cancellation shall have delivered be given to the Purchasers executed copies of the Debt Pay-off Letters and shall have paid or caused to be paid the Indebtedness Amount at the Closing (including by way of delivery of an irrevocable direction letter that the Ski Purchaser Closing Cash Consideration, the Canadian Purchaser Closing Consideration and/or the Attractions Purchaser Closing Cash Consideration shall be delivered to the applicable creditors)Issuer in writing.
(j) Before the Closing Date, the Director under the Investment Canada Act (Canada) (the “ICA”) shall have sent a receipt to the Ski Purchaser under the ICA advising that the transactions contemplated by this Agreement are not reviewable, and the Minister under the ICA shall not have sent to the Ski Purchaser a notice under subsection 25.2(1) of the ICA within the prescribed period thereunder and the Governor in Council shall not have made an order under subsection 25.3(1) of the ICA in relation to the transactions contemplated by this Agreement or, if such a notice has been sent or such an order has been made, the Ski Purchaser shall have subsequently received (i) a notice under paragraph 25.2(4)(a) of the ICA indicating that a review of the transaction on grounds of national security will not be made, (ii) a notice under paragraph 25.3(6)(b) of the ICA indicating that no further action will be taken in respect of the transaction or (iii) a copy of an order under paragraph 25.4(1)(b) of the ICA authorizing the transaction, provided that order is on terms and conditions reasonably satisfactory to the Ski Purchaser.
Appears in 1 contract
Conditions to the Obligations of the Purchasers. The obligation obligations of each Purchaser of the Purchasers to effect the Sale and to consummate the other Contemplated Transactions fulfill its obligations under Section 2.1 hereof shall be subject to the satisfaction or waiver (as permitted by applicable Law), at or prior to the Closing Date, of the following additional conditions:
(a) The Seller Parties shall have made Each of the deliveries required pursuant to Section 2.11(b) and Section 2.11(g).
(b) The Seller Parties shall have performed in all material respects all of their respective obligations hereunder required to be performed by them on or prior to the Closing Date.
(c) The representations and warranties set forth of the Company contained in Section 4.3 (Capital Structure), Section 4.4 (Authority), Section 4.21 (Vote Required) and Section 4.22 (Brokers; Fees) this Agreement shall be true and correct in all but de minimis material respects at and as of the Effective Date and as of the Closing, as though made as of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date).
(d) Each of the other representations and warranties of the Seller Parties contained in Article 4 date of this Agreement, without giving effect to materiality, Target Company Material Adverse Effect or other similar qualifications, shall be true and correct at and as of the Effective Date and at Agreement and as of the Closing Date as if made at on the Closing Date (or on the date when made in the case of any representation or warranty which specifically relates to an earlier date); the Company shall have performed, in all material respects, each of its covenants and as agreements contained in this Agreement to be performed prior to the Closing; and each of the Purchasers shall have received a certificate signed by the Chief Executive Officer and the Chief Financial Officer of the Company, dated the Closing Date, to the foregoing effect.
(other than such representations b) The Company shall have delivered to each Purchaser a Senior Note, certificate evidencing Series A Preferred Stock and warranties that expressly address matters only as a Warrant, in each case registered in the name of another specified datethe Purchaser, which need only be true and correct as of such date), except where sufficient to evidence the failure of such representations and warranties Securities in the Units to be so true issued and correct sold by the Company and purchased by the Purchaser, as set forth on Exhibit A hereto, against payment therefor to the Company in the amount of $500,000 per Unit (subject to pro rata adjustment in the case of any Fractional Unit).
(c) Each Purchaser shall have received such written confirmations from the OTS as may be reasonably determined by it to be necessary to ensure that upon consummation of the transactions contemplated by Section 2.1 hereof it will not be deemed to be in control of the Company or subject to a rebuttable presumption of control of the Company under the HOLA and would not reasonably be expected to12 C.F.R. Part 574, and no such confirmation shall include any condition or requirement that, individually or in the aggregate, would reduce the benefits of the transactions contemplated by this Agreement in so significant a manner that the party, in its judgment, would not have entered into this Agreement had such condition or requirement been known at the date hereof.
(d) The Company shall have delivered to each Purchaser a Target certificate signed by the Chief Executive Officer and Chief Financial Officer of the Company, dated the Closing Date, to the following effect:
(i) at November 30, 1995, the Company Material Adverse Effecthad not less than $23,500,000 of consolidated shareholders' equity under generally accepted accounting principles;
(ii) at November 30, 1995, the Company's consolidated general allowance for loan losses and consolidated general allowance for losses on Real Estate Owned (x) amounted to not less than $12,500,000 in the aggregate and (y) complied with any applicable requirement of the OTS, including without limitation the requirements set forth in a letter, dated October 5, 1995, from Timo▇▇▇ ▇. ▇▇▇▇▇, ▇▇sistant Regional Director of the OTS, to Scot▇ ▇. ▇▇▇▇▇;
(iii) from August 1, 1995 to November 30, 1995, the Company received not less than $14,000,000 of net proceeds from the sale of Real Estate Owned (other than apartment buildings), which sales in each case have been recorded by the Company as such under generally accepted accounting principles;
(iv) at November 30, 1995, the Company's consolidated Non- performing Assets amounted to not more than $50,600,000; and
(v) to the best of the knowledge and belief of each such officer, no event has occurred subsequent to November 30, 1995 which would make the statements in clauses (i)-(iv) above inaccurate.
(e) The representations and warranties set forth Unless waived by the Purchasers in Article 5 accordance with respect Section 6.3(a) hereof, either (i) the Company's issuance of the Warrants included in the Units to be sold pursuant to this Agreement shall have been approved by the requisite vote of the holders of the Common Stock pursuant to Section 6(i)(1)(D) of Part III to Schedule D of the Bylaws of the NASD or (ii) the Company shall have obtained an exemption from such requirement to obtain shareholder approval upon application to the Jersey Trust shall be true NASD and correct in mailed to all respects at and as shareholders of the Effective Date and as Company the notice referred to in Section 6(i)(1)(e) of Part III to Schedule D of the Closing, as though made as Bylaws of the Closing (other than such representations and warranties that expressly address matters only as of another specified date, which need only be true and correct as of such date)NASD.
(f) No Target Company Material Adverse Effect Members of Management shall have occurred since agreed, by their execution of this Agreement, to purchase in the Effective Date and aggregate not less than 5% of the aggregate Units to be continuing on sold by the Closing DateCompany pursuant to this Agreement.
(g) The Company Each Purchaser shall have provided evidence reasonably satisfactory to the Purchasers thatreceived, effective as of the Closing Date, each Management Agreement has been terminated.
(h) The Purchasers shall have obtained the New Forest Service Permits and Ground Lease Approvals in form and substance reasonably satisfactory to such it, an opinion, addressed to the Purchasers (it being agreed that if the foregoing condition has not been satisfied as of and dated the Closing Date, of Maye▇, ▇▇ow▇ & ▇lat▇, ▇▇unsel for the Company and the Parties Bank, with respect to the matters set forth in Exhibit H hereto.
(h) No party to this Agreement (other than the relevant Purchaser) shall be in material breach of this Agreement unless such breach shall have nevertheless complied with their respective obligations under Section 8.7(g), then none been waived in writing by each of the Parties shall be subject other parties to any liability or damages resulting from, or arising out of, the failure of such condition)this Agreement.
(i) The Company Each Purchaser shall have delivered received such other certificates, opinions, documents and instruments related to the Purchasers executed copies transactions contemplated hereby as may have been reasonably required by it and are customary for transactions of the Debt Pay-off Letters this type, and shall have paid or caused to be paid the Indebtedness Amount at the Closing (including by way of delivery of an irrevocable direction letter that the Ski Purchaser Closing Cash Considerationall corporate and other proceedings, the Canadian Purchaser Closing Consideration and/or the Attractions Purchaser Closing Cash Consideration shall be delivered to the applicable creditors).
(j) Before the Closing Dateand all documents, the Director under the Investment Canada Act (Canada) (the “ICA”) shall have sent a receipt to the Ski Purchaser under the ICA advising that instruments and other legal matters in connection with the transactions contemplated by this Agreement are not reviewableAgreement, and the Minister under the ICA shall not have sent to the Ski Purchaser a notice under subsection 25.2(1) of the ICA within the prescribed period thereunder and the Governor in Council shall not have made an order under subsection 25.3(1) of the ICA in relation to the transactions contemplated by this Agreement or, if such a notice has been sent or such an order has been made, the Ski Purchaser shall have subsequently received (i) a notice under paragraph 25.2(4)(a) of the ICA indicating that a review of the transaction on grounds of national security will not be made, (ii) a notice under paragraph 25.3(6)(b) of the ICA indicating that no further action will be taken in respect of the transaction or (iii) a copy of an order under paragraph 25.4(1)(b) of the ICA authorizing the transaction, provided that order is on terms and conditions reasonably satisfactory in form and substance to the Ski Purchaserit and its counsel.
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