Conditions. (a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement. (b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed. (c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions: (1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares; (2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and (3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Banc of California, Inc.), Securities Purchase Agreement (Banc of California, Inc.), Securities Purchase Agreement (Banc of California, Inc.)
Conditions. The obligations of Buyer to consummate the transactions provided for hereby are subject, in the discretion of Buyer, to the satisfaction of each of the following conditions, on or prior to the Closing Date, any of which may be waived by Buyer:
(a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties in Article III and other statements of the Company Article IV shall be true and correct when made and at and as of the date of this Agreement Closing Date as if such representations and the date of the Closing warranties were made at such time (except that those representations and warranties that by their terms speak specifically which are made as of the date of this Agreement or some other a specific date shall be true and correct only as of such date);
(b) Seller, except for such failures to be so true IHC and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed and satisfied in all material respects all of its obligations hereunder theretofore agreements and covenants required hereby to be performed or satisfied by them prior to or at the Closing Date;
(c) all Consents from any Person, including without giving effect limitation those set forth on Schedule 3.7(b), and all filings, registrations and notifications necessary to any qualification as to materiality or Material Adverse Effect contained therein); and permit the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to consummation of the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of Ancillary Agreements shall have been obtained or made with no material adverse conditions being imposed;
(d) no Person that is not a party to this Agreement (or an Affiliate thereof) shall have obtained a Court Order which makes the Closing (except those representations and warranties that transactions contemplated by their terms speak specifically as of the date of this Agreement or some other date the Ancillary Agreements illegal or otherwise prohibited;
(e) there shall not have occurred any event, change or condition that, individually or in the aggregate, has had or could reasonably be true and correct as of such date); and expected to have a Material Adverse Effect;
(f) the condition that the Investor Company shall have performed all capital and surplus of its obligations hereunder theretofore to be performed.no less than $21,300,000 under GAAP;
(cg) First Standard shall have entered into the Reinsurance Treaties as described in Section 6.13;
(h) Buyer and its Affiliates and Seller and its Affiliates, as applicable, shall have entered into a service agreement or agreements in form and substance reasonably satisfactory to each of Buyer and Seller;
(i) The obligation holders (other than IHC and its Affiliates) of each a majority of the Investor and shares of common stock of Buyer present in person or by proxy at the Company to consummate the Closing Buyer's Stockholders Meeting shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit have approved the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharesby this Agreement;
(2j) the purchase by the Investor The Company shall own directly all of the Investor Shares outstanding shares of capital stock of RAS and RAS shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities own directly all of the Company would be aggregated with the Investor’s securities outstanding shares of the Company for purposes capital stock of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)First Standard Associates Corp.; and
(3k) Seller, IHC, the conditions set forth in Section 10 of the Branch Purchase AgreementCompany and its Subsidiaries, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement)applicable, shall have been satisfied or waiveddelivered the documents required to be delivered by them pursuant to Section 9.1(a), in form and content reasonably satisfactory to Buyer.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Independence Holding Co), Stock Purchase Agreement (Softnet Systems Inc), Stock Purchase Agreement (Madison Investors Corp)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) The obligation shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Investor Company hereunder to consummate the Closing extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be subject released of and discharged from such obligations to the condition that all representations extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and warranties and other statements the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall be true and correct as of extend beyond the date of this Agreement and the maturity date of the Closing Bonds or (except those representations iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and warranties (b) in the event that by their terms speak specifically as the assignee, lessee, purchaser or other transferee shall assume the obligations of the date Company under Section 5.01 hereof for the remaining term of this Agreement or some other date shall be true and correct as Agreement, to the extent of such date)assignment, except for such failures to be so true and correct (without giving effect to any qualification as to materiality lease, sale, transfer or Material Adverse Effect contained therein) as would not haveother disposition, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed be released from and discharged of all liability in all material respects all respect of its such obligations hereunder theretofore to be performed the extent so assumed (without giving effect but only to any qualification as to materiality or Material Adverse Effect contained thereinsuch extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the condition Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that since such rights, interests, assets and/or properties so described constitute facilities for the date hereof no Material Adverse Effect shall have occurred generation, transmission and/or distribution of electric energy and be continuing with respect stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to either the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the Company or aggregate principal amount of the Bonds then Outstanding and (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to consummate time, and, to the Closing extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be subject released from and discharged of all liability in respect of such obligations. Anything herein to the condition contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that all representations and warranties and other statements the proposed assignment, lease or sale will not impair the validity under the Act of the Investor shall be true Bonds and correct as will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the date Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the date of Trustee the Closing (except those representations and warranties agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that by their terms speak specifically as of the date of this Agreement such element or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Actunit, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investorinterest therein, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively shall no longer be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities be part of the Company outstanding on Facilities for the date purposes of the Closing (after giving effect to the purchase this Agreement. For purposes of the Investor Shares contemplated hereby); and
(3) the conditions set forth in this Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.7.01:
Appears in 3 contracts
Sources: Loan Agreement (Tucson Electric Power Co), Loan Agreement (Tucson Electric Power Co), Loan Agreement (Tucson Electric Power Co)
Conditions. A. In addition to Purchaser’s absolute right to terminate this Contract for any reason at any time during the Review Period, the obligation of Purchaser under this Contract to purchase the Property from Seller is subject to the satisfaction of each of the following conditions on or prior to the Closing Date, any of which conditions may be waived in whole or in part by Purchaser by written waiver at or prior to the Closing Date:
1. Title to the Real Property shall be good and marketable as required herein, free and clear of all liens and encumbrances and subject to no exceptions other than the Permitted Exceptions and the Escrow Agent shall be prepared to issue an owner’s title insurance policy pursuant to the Title Commitment insuring the title to the Real Property subject only to the Permitted Exceptions in the amount of the Purchase Price. For purposes of determining whether this Condition has been satisfied, it shall be assumed that as of the Closing Date: (a) The obligation all of Purchaser’s “Requirements” set forth in the Investor Title Commitment have been satisfied; and (b) the Escrow Agent’s willingness to consummate issue such owner’s title insurance policy shall satisfy the requirement that title to the Real Property shall be good and marketable.
2. Seller shall have performed, observed and complied with all covenants, agreements and conditions required by this Contract to be performed by, observed and complied with on its part either on or prior to the Closing shall be subject to the condition that all Date.
3. All of Seller’s representations and warranties and other statements of the Company contained herein shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement Closing Date and the date Seller will deliver to Purchaser at Closing a certificate to that effect.
4. The physical condition of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares Property shall not (i) require have materially changed since the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedEffective Date.
Appears in 3 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement, Purchase and Sale Agreement (Wheeler Real Estate Investment Trust, Inc.)
Conditions. The Company’s interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) The obligation shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Investor Company hereunder to consummate the Closing extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be subject released of and discharged from such obligations to the condition that all representations extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company’s interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company’s interest in the Facilities shall be leased as a whole or in undivided part and warranties and other statements the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall be true and correct as of extend beyond the date of this Agreement and the maturity date of the Closing Bonds or (except those representations iii) the Company’s interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and warranties (b) in the event that by their terms speak specifically as the assignee, lessee, purchaser or other transferee shall assume the obligations of the date Company under Section 5.01 hereof for the remaining term of this Agreement or some other date shall be true and correct as Agreement, to the extent of such date)assignment, except for such failures to be so true and correct (without giving effect to any qualification as to materiality lease, sale, transfer or Material Adverse Effect contained therein) as would not haveother disposition, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed be released from and discharged of all liability in all material respects all respect of its such obligations hereunder theretofore to be performed the extent so assumed (without giving effect but only to any qualification as to materiality or Material Adverse Effect contained thereinsuch extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the condition Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that since such rights, interests, assets and/or properties so described constitute facilities for the date hereof no Material Adverse Effect shall have occurred generation, transmission and/or distribution of electric energy and be continuing with respect stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to either the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the Company or aggregate principal amount of the Bonds then Outstanding and (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to consummate time, and, to the Closing extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be subject released from and discharged of all liability in respect of such obligations. Anything herein to the condition contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that all representations and warranties and other statements the proposed assignment, lease or sale will not impair the validity under the Act of the Investor shall be true Bonds and correct as will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the date Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the date of Trustee the Closing (except those representations and warranties agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that by their terms speak specifically as of the date of this Agreement such element or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Actunit, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investorinterest therein, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively shall no longer be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities be part of the Company outstanding on Facilities for the date purposes of the Closing (after giving effect to the purchase this Agreement. For purposes of the Investor Shares contemplated hereby); and
(3) the conditions set forth in this Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.7.01:
Appears in 3 contracts
Sources: Loan Agreement (Unisource Energy Corp), Loan Agreement (Tucson Electric Power Co), Loan Agreement (Unisource Energy Corp)
Conditions. (a) Section 8.1 Conditions to Each Party's Obligation to Effect the Merger. The obligation respective obligations of each party to effect the Investor to consummate the Closing Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) This Agreement and the Merger shall have been adopted and approved by the affirmative vote of holders of (i) a majority of the outstanding shares of PZE Common Stock; and (ii) a majority of the outstanding shares of DVN Common Stock and the Northstar Exchangeable Shares voting as a single class with the DVN Special Voting Stock voting for the Northstar Exchangeable Shares as provided in DVN's charter.
(b) The waiting period applicable to the consummation of the Merger shall have expired or been terminated under (i) the HSR Act and (ii) any mandatory waiting period under any applicable foreign competition or antitrust law or regulation where the failure to observe such waiting period referred to in this clause (ii) would have, individually or in the aggregate, a DVN Material Adverse Effect or a PZE Material Adverse Effect.
(c) None of the parties hereto shall be subject to any decree, order or injunction of a court of competent jurisdiction, U.S. or foreign, which prohibits the consummation of the Merger; provided, however, that prior to invoking this condition that each party agrees to comply with Section 7.5, and with respect to other matters not covered by Section 7.5, to use its commercially reasonable best efforts to have any such decree, order or injunction lifted or vacated; and no statute, rule or regulation shall have been enacted by any governmental authority which prohibits or makes unlawful the consummation of the Merger.
(d) The Form S-4 shall have become effective and no stop order with respect thereto shall be in effect.
(e) The shares of Newco Common Stock to be issued pursuant to the Merger shall have been authorized for listing on the NYSE or the AMEX, subject to official notice of issuance.
Section 8.2 Conditions to Obligation of PZE to Effect the Merger. The obligation of PZE to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) DVN shall have performed in all material respects its covenants and agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of DVN and Newco contained in this Agreement and in any document delivered in connection herewith (i) to the extent qualified by DVN Material Adverse Effect or any other statements of the Company materiality qualification shall be true and correct and (ii) to the extent not qualified by DVN Material Adverse Effect or any other materiality qualification shall be true and correct so long as any failures of such representations and warranties to be true and correct, individually or in the aggregate, do not have a DVN Material Adverse Effect, as of the date of this Agreement and the date as of the Closing Date (except those for representations and warranties that by their terms speak specifically made as of the date of this Agreement or some other date shall a specified date, which need be true and correct only as of such the specified date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company PZE shall have performed in all material respects all received a certificate of the DVN, executed on its obligations hereunder theretofore behalf by its President or a Vice President of DVN, dated the Closing Date, certifying to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementsuch effect.
(b) The obligation PZE shall have received the opinion of ▇▇▇▇▇ & ▇▇▇▇▇, L.L.P., counsel to PZE, in form and substance reasonably satisfactory to PZE, dated the Closing Date, a copy of which shall be furnished to DVN, to the effect that (i) the Merger will be treated for federal income tax purposes as a reorganization within the meaning of section 368(a) of the Company Code and (ii) no gain or loss will be recognized by PZE or the stockholders of PZE who exchange all of their PZE Common Stock solely for Newco Common Stock pursuant to consummate the Closing Merger (except with respect to cash received in lieu of a fractional share interest in Newco Common Stock). In rendering such opinion, such counsel shall be subject entitled to the condition that all receive and rely upon representations of officers of PZE and warranties and other statements of the Investor shall be true and correct DVN as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically to such matters as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedcounsel may reasonably request.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of At any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on time after the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase this Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined there shall not have been any event or occurrence, individually or in the Branch Purchase Agreement)aggregate with all such events or occurrences, shall that have been satisfied had or waivedis likely to have a DVN Material Adverse Effect.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Devon Energy Corp /Ok/), Agreement and Plan of Merger (Pennzenergy Co)
Conditions. (a) The obligation of the Investor to consummate the Closing Incremental Term Loan Commitments shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct become effective as of the first date of this Agreement and that the date of following conditions precedent have been satisfied:
(i) all conditions set forth in Section 4.4 with respect to the applicable Incremental Projects shall have been met;
(ii) since the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement Date, no event or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, circumstance which has had a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing;
(iii) no Default or Event of Default shall have occurred and be continuing with respect to either (x) as of the Company Incremental Satisfaction Date or (y) the Company would exist immediately after giving effect to the transactions contemplated by borrowings to be made on the Branch Purchase Agreement.Incremental Satisfaction Date;
(biv) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties contained in this Agreement and the other statements Loan Documents (in each case with respect to each date of the Investor a Loan for a Project and as of each Inclusion Date with respect to an Incremental Project such representation or warranty as to any Project or any Project Company shall relate only to such Project or Project Company) shall be true and correct in all material respects on and as of the date of this Agreement Incremental Satisfaction Date (unless such representation and the date of the Closing (except those representations warranty is qualified by materiality, in which event such representation and warranties that by their terms speak specifically as of the date of this Agreement or some other date warranty shall be true and correct in all respects) on and as of the Incremental Satisfaction Date with the same force and effect as if made on and as of such date); , except to the extent that such representations and the condition that the Investor warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have performed been true and correct in all material respects (unless such representation and warranty is qualified by materiality, in which event such representation and warranty shall have been true and correct in all respects) on and as of its obligations hereunder theretofore such earlier date) and except for changes in factual circumstances permitted under the Loan Documents;
(v) the Borrower shall deliver or cause to be performed.delivered officer’s certificates and legal opinions with respect to the Increase Joinder to the extent reasonably requested by, and in form and substance reasonably satisfactory to, the Required Lenders;
(cvi) The obligation of each of the Investor and the Company to consummate the Closing Administrative Agent shall be subject have received, at least ten (10) Business Days prior to the following additional conditionsrequested Incremental Satisfaction Date:
(1a) no provision of any All documentation and other information regarding the Pledgors and the Obligors requested in connection with applicable law or regulation “know your customer” rules and no judgmentregulations, injunctionAnti-Money Laundering Laws, order or decree shall prohibit including the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Patriot Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3b) Beneficial Ownership Certifications with respect to each Pledgor and each applicable Obligor.
(vii) the conditions Borrower has delivered a notice meeting the requirements set forth in this Section 10 2.3.1(b) at least forty-five (45) days prior to the Incremental Satisfaction Date; and
(viii) no later than ten (10) Business Days before the Inclusion Date, the Borrower shall have delivered to the Administrative Agent (for delivery to each Lender and LC Issuer) (A) a final update to the most recently updated Base Case Projections, which Base Case Projections update shall be satisfactory to the Administrative Agent and the Required Lenders (in consultation with the Independent Engineer) and (B) a certificate of an Authorized Officer of the Branch Purchase AgreementBorrower stating that the Base Case Projections were prepared in good faith based upon assumptions which the Borrower considers to be reasonable at the time made and at the time made available to the Administrative Agent, other than the condition set forth in Section 10.3(e) Lenders and LC Issuers and as of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedIncremental Satisfaction Date.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (OPAL Fuels Inc.), Credit and Guaranty Agreement (OPAL Fuels Inc.)
Conditions. If with respect to the Borrowed Securities, (ai) The obligation the Company has not performed all of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore required to be performed (without giving effect to any qualification as to materiality by it under this Agreement on or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect prior to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor Time or any Date of its affiliates to file a prior notice under Delivery, as the Change in Bank Control Actcase may be, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 5 hereof have not been satisfied on or prior to the Closing Time or any Date of Delivery, as the case may be, or (iii) any of the Branch Purchase Agreement, other than the condition conditions set forth in Section 10.3(ethe applicable Forward Sale Agreement shall not have been satisfied on or prior to the Closing Time or any Date of Delivery, as the case may be (clauses (i) through (iii), together, the “Conditions”), then the Forward Seller, in its sole discretion, may elect not to borrow and deliver for sale to the Underwriters the Borrowed Securities otherwise deliverable on such date. In addition, in the event the Forward Seller determines that in connection with establishing its commercially reasonable hedge position, in its sole judgment, the Forward Seller (or its affiliate) (x) is unable, after using commercially reasonable efforts, to borrow and deliver for sale the full number of Borrowed Securities to be borrowed and sold pursuant to this Agreement at the Branch Purchase Agreement Closing Time or on such Date of Delivery or (y) would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so with respect to all or any portion of such full number of Borrowed Securities, then, in each case and upon notice delivered no later than 9:00 A.M. (Eastern time) at the Company’s acceptance Closing Time or the Date of Delivery, as applicable, the proceeds Forward Seller shall only be required to deliver for sale to the Underwriters on the Closing Time or such Date of Delivery, as the Acceptable Financing (as defined case may be, the aggregate number of shares of Common Stock that the Forward Seller or its affiliate is able to borrow in the Branch Purchase Agreement), shall have been satisfied connection with establishing its hedge position at or waivedbelow such cost.
Appears in 2 contracts
Sources: Underwriting Agreement (STAG Industrial, Inc.), Underwriting Agreement (STAG Industrial, Inc.)
Conditions. (a) The obligation respective obligations of the Investor parties to consummate the Closing shall be Subject Share Purchase are subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of fulfillment, prior to or concurrently with the Closing (except those representations and warranties that by their terms speak specifically as hereinafter defined), of each of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures following conditions:
(i) Any waiting period applicable to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; Subject Share Purchase under the condition that the Company HSR Act shall have performed in all material respects all of its obligations hereunder theretofore to be performed expired or been terminated; and
(without giving effect to any qualification as to materiality ii) No statute, rule, regulation, order, writ, injunction, judgment or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect decree shall have occurred and be continuing with respect to either (x) been enacted, promulgated, entered or enforced by any federal or state court or other Governmental Authority which has the Company effect of making illegal, impeding or (y) otherwise restraining or prohibiting the Company after giving effect to the transactions contemplated by the Branch Purchase AgreementSubject Share Purchase.
(b) The obligation obligations of CREC to purchase and pay for the Company to consummate the Closing shall be Aggregate Subject Shares are subject to the condition that all fulfillment, prior to or concurrently with the Closing, of each of the conditions set forth in Section 7.2(a) and (b) of the Merger Agreement and to each of the following additional conditions (any one or more of which may be waived, in whole in part, by CREC):
(i) Each of the representations and warranties and other statements of the Investor Shareholder Parties contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically Date as of the date of this Agreement or some other date shall be true and correct as of if made on such date); and the condition that the Investor and
(ii) The Shareholder Parties shall have performed and complied in all of its obligations hereunder theretofore material respects with all provisions, covenants and conditions contained in this Agreement required to be performedperformed or complied with by them prior to or on the Closing Date.
(c) The obligation obligations of the Shareholder Parties to sell and deliver the Subject Shares are subject to the fulfillment, prior to or concurrently with the Closing, of each of the Investor and following conditions (any one or more of which may be waived, in whole in part, by the Company to consummate Shareholder Parties, but only if all Shareholder Parties waive the Closing shall be subject condition with respect to the following additional conditions:Aggregate Subject Shares).
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities Each of the Company would representations and warranties of CREC contained in this Agreement shall be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor true and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date correct in all material respects as of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Date as if made on such date; and
(3ii) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), CREC shall have been satisfied performed and complied in all material respects with all provisions, covenants and conditions contained in this Agreement required to be performed or waivedcomplied with by it prior to or on the Closing Date.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Cavco Industries Inc), Stock Purchase Agreement (Janal LTD Partnership)
Conditions. 5.1 Conditions to the Obligations of Parent, the Purchaser and the Company. The obligations of Parent, the Purchaser and the Company to consummate the Merger are subject to the satisfaction, at or before the Effective Time, of each of the following conditions:
(a) The Purchaser shall have purchased all Shares duly tendered and not withdrawn pursuant to the terms of the Offer and subject to the terms thereof; provided that the obligation of the Investor Parent and the Purchaser to consummate effect the Closing Merger shall not be subject conditioned on the fulfillment of the condition set forth in this Section 5.1 (a) if the failure of the Purchaser to purchase the Shares pursuant to the condition that all representations and warranties and other statements Offer shall have constituted a breach of the Company shall be true and correct as of the date Offer or of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation consummation of the Merger shall not be precluded by any order, decree or injunction of a court of competent jurisdiction (each party agreeing to use its best efforts to have any such order reversed or injunction lifted), and there shall not have been any action taken or any Law enacted, promulgated or deemed applicable to the Merger by any Governmental Entity that makes consummation of the Merger illegal.
(c) If required by Certificate of Incorporation and By-Laws of the Company and the DGCL, this Agreement shall have been approved and adopted by the affirmative vote of the holders of the requisite number of shares of Common Stock in accordance with the Certificate of Incorporation and By-Laws of the Company and the DGCL.
(▇) ▇▇▇ applicable waiting period under the HSR Act shall have expired or been terminated.
5.2 Conditions to the Obligations of Parent and the Purchaser. The obligations of Parent and the Purchaser to consummate the Closing shall be Merger are subject to the condition that all representations and warranties and other statements satisfaction, at or before the Effective Time, of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing following conditions:
(except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor a) The Company shall have performed all of its obligations hereunder theretofore material agreements and covenants contained in this Agreement required to be performedperformed on or prior to the Effective Time and the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of (i) the date made and (ii) except in the case of representations and warranties expressly made solely with reference to a particular date, the Effective Time, and Parent and the Purchaser shall have received a certificate of an executive officer of the Company to such effect.
(b) The Company shall not have received notice from the holder or holders of more than 10% of the outstanding Shares, determined on a fully diluted basis, that such holder or holders have exercised or intend to exercise its or their appraisal rights under Section 262 of the DGCL.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase 179,656 Shares previously held by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Trust shall have been satisfied or waivedreturned to the Company and canceled, as described in the third recital to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Cambrex Corp), Merger Agreement (Cambrex Corp)
Conditions. (a) The Your obligation of to purchase the Investor to consummate Notes on the Closing Date shall be subject to the performance by the Company of its agreements hereunder which by the terms hereof are to be performed at or prior to the time of delivery of the Notes and to the following further conditions precedent:
(a) Closing Certificates.
(1) Concurrently with the delivery of the Notes on the Closing Date, you shall have received a certificate dated the Closing Date, signed by a Responsible Officer of the Company, the truth and accuracy of which shall be a condition to your obligation to purchase the Notes proposed to be sold to you and to the effect that all (i) the representations and warranties and other statements of the Company shall be set forth in Exhibit C hereto are true and correct as of the date of this Agreement on and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either the Closing Date, (xii) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have has performed all of its obligations hereunder theretofore which are to be performed.performed on or prior to the Closing Date, and (iii) no Default or Event of Default has occurred and is continuing; and
(c2) The obligation You shall have received a certificate dated the Closing Date, signed by an authorized officer of each of the Investor Existing Subsidiary Guarantors, the truth and the Company to consummate the Closing accuracy of which shall be subject a condition to your obligation to purchase the Notes proposed to be sold to you and to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not effect that (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities representations and warranties of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions Existing Subsidiary Guarantors set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement 2002 Subsidiary Note Guaranty are true and correct on and with respect to the Company’s acceptance Closing Date, (ii) each Existing Subsidiary Guarantor has performed all of its obligations under the proceeds 2002 Subsidiary Note Guaranty which are to be performed on or prior to the Closing Date, and (iii) no Default or Event of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedDefault has occurred and is continuing.
Appears in 2 contracts
Sources: Note Agreement (Universal Forest Products Inc), Note Agreement (Universal Forest Products Inc)
Conditions. (a) The obligation of Backstop Parties’ obligations to purchase any securities pursuant to the Investor to consummate Basic Commitment and/or the Closing shall be Backstop Commitment are subject to the condition that all representations following conditions: (i) the execution and warranties delivery of mutually satisfactory definitive documentation among BFE Corp. and other statements the Backstop Parties which incorporates the terms set forth herein (the “Definitive Agreements”); (ii) the satisfaction or waiver by the Backstop Parties of the Company shall be true and correct as of conditions to the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures Backstop Parties’ obligations to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to consummate the transactions contemplated by the Branch Purchase Agreement.
Definitive Agreements as may be agreed upon in the Definitive Documents; (biii) The obligation BFE Corp. shall be in compliance with its obligations under the Loan Agreement and all other transaction documents relating to the Bridge Loan in all material respects; (iv) there has not occurred any material adverse change, or any development involving a prospective material adverse change, since the date hereof in the condition, financial or otherwise, or in the earnings, business, operations or properties of BFE Corp. and its subsidiaries, taken as a whole (a “Material Adverse Change”); (v) there not having occurred after the date hereof at any time prior to the funding of the Company to consummate Basic Commitment and/or the Closing Backstop Commitment any material disruption or material adverse change in the financial, banking or capital markets that, in the commercially reasonable judgment of the Backstop Parties, would have a material adverse impact on the success of the Rights Offering; (vi) all required approvals and consents shall be subject to the condition that have been obtained; (vii) all representations and warranties and other statements of the Investor shall be made by BFE Corp. in this Letter Agreement being true and correct as of the date in all material respects; (viii) BFE Corp. shall be in compliance with all covenants and other provisions of this Letter Agreement in all material respects; (ix) the Cargill Acknowledgement Letter (as defined below) being in full force and the date of the Closing effect; (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(cx) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing Executive Management Waiver Agreements (as defined in the Branch Purchase Loan Agreement)) being in full force and effect; (xi) no actions, suits or proceedings shall be pending or threatened that challenge any Definitive Agreement, this Letter Agreement, the Loan Agreement, the Cargill Acknowledgement Letter or any related agreement; (xii) the Backstop Parties having been reasonably satisfied with the Certificate of Designations setting forth the rights and preferences of the Series A Convertible Preferred Stock that reflects the terms set forth on Exhibit A hereto and other customary terms and provisions as determined by Greenlight in its reasonable discretion; (xiii) the receipt by the Backstop Parties of a legal opinion from Cravath, Swaine & ▇▇▇▇▇ LLP with respect to customary matters in a form satisfactory to Greenlight in its reasonable discretion; (xiv) BFE Corp. shall not have entered into any letter of intent, memorandum of understanding, agreement in principle or other agreement relating to any competing plan, proposal, offer or transaction with a third party other than Greenlight materially inconsistent with this Letter Agreement; and (xv) the Board of Directors of BFE Corp. shall have been satisfied or waivedadopted Section 16b-3 Resolutions related to the issuance to the Backstop Parties of Series A Convertible Preferred Stock, Common Stock and warrants, the form of which shall be satisfactory to Greenlight in its sole discretion.
Appears in 2 contracts
Sources: Loan Agreement (BioFuel Energy Corp.), Backstop Rights Offering Agreement (BioFuel Energy Corp.)
Conditions. (a) SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. The obligation respective obligations of each party to effect the Investor to consummate the Closing Merger shall be subject to the condition that all representations and warranties and other statements fulfillment at or prior to the Closing Date of the Company shall be true and correct as of the date of following conditions:
(a) this Agreement and the date transactions contemplated hereby shall have been approved and adopted by the requisite vote of the Closing (except those representations and warranties that by their terms speak specifically as stockholders of the date of this Agreement or some other date shall be true Company and correct as of such date), except for such failures to be so true Parent under applicable law and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.applicable listing requirements;
(b) The obligation the shares of Parent Common Stock issuable in the Company Merger and those to consummate be reserved for issuance upon exercise of stock options or warrants or the Closing shall be subject to the condition that all representations and warranties and other statements conversion of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor convertible securities shall have performed all of its obligations hereunder theretofore to be performed.been authorized for listing on the Nasdaq National Market;
(c) The obligation of each the waiting period applicable to the consummation of the Investor and Merger under the Company to consummate the Closing HSR Act shall be subject to the following additional conditions:have expired or been terminated;
(1d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no provision preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any applicable law or regulation and no judgment, such injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shareslifted);
(2f) the purchase no statute, rule or regulation shall have been enacted by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require government or governmental agency in the Investor or any of its affiliates to become a bank holding company; or (iii) cause United States which would prevent the Investor, together with any other person whose securities consummation of the Company would be aggregated with Merger or make the Investor’s securities of Merger illegal;
(g) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Company for purposes of any bank regulation or lawClosing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, to collectively be deemed to own, control or have the power to vote securities which (assuming, effect that the Merger will qualify for a pooling of interests accounting treatment if consummated in accordance with this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Agreement; and
(3h) the conditions set forth in Section 10 each of the Branch Purchase Agreementparties to the Agreement shall have received a letter dated the Closing Date, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect addressed to the Company’s acceptance , from Ernst & Young, LLP regarding such firm's concurrence with the Company's management's conclusions that no conditions exist related to the Company that would preclude the Parent's accounting for the Merger with the Company as a pooling of the proceeds of the Acceptable Financing (as defined interests under Accounting Principles Board Opinion No. 16 if closed and consummated in the Branch Purchase accordance with this Agreement), shall have been satisfied or waived.
Appears in 2 contracts
Sources: Merger Agreement (Allied Waste Industries Inc), Merger Agreement (Allied Waste Industries Inc)
Conditions. (ai) The obligation As a condition precedent to each Incremental Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Investor Borrower and, if reasonably determined by the Administrative Agent to consummate the Closing shall be subject necessary or desirable under applicable Requirements of Law with respect to the condition that all representations and warranties and other statements Loan Documents of the Company shall be true and correct a Guarantor, of each such Guarantor, dated as of the date of this Agreement and the date Increase Effective Date, signed by a Responsible Officer of the Closing Borrower or each such Guarantor, as applicable, and (except those representations A) certifying and warranties that attaching the resolutions adopted by their terms speak specifically as of the date of this Agreement Borrower or some other date shall be true and correct as of such date)Guarantor approving or consenting to such Incremental Increase (which, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either any such Loan Party, may, if applicable, be the resolutions entered into by such Loan Party in connection with the incurrence of the Obligations on the Closing Date) and (xB) the Company or certifying that (y1) the Company both before and immediately after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct such Incremental Increase, as of the date Increase Effective Date no Event of this Agreement Default shall exist and the date of the Closing be continuing, (except those representations and warranties that by their terms speak specifically 2) immediately after giving effect to such Incremental Increase, as of the date of this Agreement or some other date Increase Effective Date, the Borrower shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing pro forma compliance (after giving effect to the purchase incurrence of such Incremental Increase and the use of proceeds thereof) with each of the Investor Shares contemplated hereby); and
financial covenants contained in Section 7.14 and (3) the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or, with respect to representations or warranties modified by a materiality or Material Adverse Effect standard, each such representation or warranty shall be true and correct in all respects) as of such earlier date, and except that for purposes of this clause (i)(B)(3), the representations and warranties contained in Sections 5.04(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b), respectively. In addition, as a condition precedent to each Incremental Increase, the Borrower shall deliver or cause to be delivered such other officer’s certificates, organizational documents and legal opinions of the type delivered on the Closing Date as are reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent.
(ii) Each Revolving Credit Increase shall have substantially the same terms as the outstanding Revolving Credit Loans and be part of the existing Revolving Credit Facility hereunder. Upon each Revolving Credit Increase (x) each Revolving Credit Lender having a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Credit Lender providing a portion of the Revolving Credit Increase (each, a “Revolving Credit Increase Lender”) in respect of such increase, and each such Revolving Credit Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in (1) Letters of Credit and (2) Swing Line Loans, will, in each case, equal each Revolving Credit Lender’s Applicable Revolving Credit Percentages (after giving effect to such increase in the Revolving Credit Facility) and (y) if, on the date of such increase there are any Revolving Credit Loans outstanding, the Revolving Credit Lenders shall make such payments among themselves as the Administrative Agent may reasonably request to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages arising from such Revolving Credit Increase, and the Borrower shall pay to the applicable Lenders any amounts required to be paid pursuant to Section 3.05 in connection with such payments among the Revolving Credit Lenders as if such payments were effected by prepayments of Revolving Credit Loans.
(iii) To the extent that any Incremental Increase shall take the form of a Term Loan Increase or an Incremental Term Loan, this Agreement may be amended to the extent necessary (without the need to obtain the consent of any Lender or any L/C Issuer other than the Lenders providing such Incremental Term Loans or Term Loan Increase), including with respect to such terms as are customary for a term loan commitment, including mandatory prepayments, assignments and voting provisions; provided that (i) if any such terms (when taken as a whole) are materially more restrictive to the Borrower and its Restricted Subsidiaries then such material terms shall be added to the Term Facility hereunder, provided that if such terms have been amended, modified or removed by the requisite Lenders providing such Incremental Term Loans, such terms shall be automatically deemed amended, modified or removed in respect of each other Term Facility hereunder (or tranche thereof) without any further action by or consent of any Person and (ii) no such terms or amendment shall contravene any of the terms of the then existing Loan Documents. On any Increase Effective Date on which any Incremental Increase in the form of a Term Loan Increase or an Incremental Term Loan is effective, subject to the satisfaction of the terms and conditions in this Section 2.14, each Lender of such new Term Loan Increase or an Incremental Term Loan shall make an amount equal to its commitment to such new Term Loan Increase or an Incremental Term Loan available to the Borrower, in a manner consistent with Borrowings hereunder.
(iv) Notwithstanding anything to the contrary contained in this subsection 2.14(d), the only conditions precedent to any Incremental Increase in connection with a Limited Conditionality Transaction shall be those set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived1.09.
Appears in 2 contracts
Sources: Credit Agreement (BWX Technologies, Inc.), Credit Agreement (BWX Technologies, Inc.)
Conditions. Notwithstanding anything in this Agreement or the Plan to the contrary: (a) The obligation the Company may, if it shall determine it necessary or desirable for any reason, at the time of award of any Award or the issuance of any shares of Common Stock pursuant to any Award, require the recipient of the Investor to consummate the Closing shall be subject Award, as a condition to the receipt thereof or to the receipt of shares of Common Stock issued pursuant thereto, to deliver to the Company a written representation of present intention to acquire the Award or the shares of Common Stock issued pursuant thereto for his or her own account for investment and not for distribution; and (b) if at any time the Company further determines, in its sole discretion, that the listing, registration or qualification (or any updating of any such document) of any Award or the shares of Common Stock issuable pursuant thereto is necessary on any securities exchange or under any federal or state securities or blue sky law, or that the consent or approval of any governmental regulatory body is necessary or desirable as a condition that all representations and warranties and of, or in connection with the award of any Award, the issuance of shares of Common Stock pursuant thereto, or the removal of any restrictions imposed on such shares, such Award shall not be awarded or such shares of Common Stock shall not be issued or such restrictions shall not be removed, as the case may be, in whole or in part, unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Company. Notwithstanding any other statements provision of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of Plan, this Agreement or some any other date shall agreements entered into pursuant to the Plan, the Company will not be true required to issue any shares of Common Stock under this Agreement or the Plan, and correct as a Participant may not sell, assign, transfer or otherwise dispose of such date), except for such failures to be so true and correct (without giving effect shares of Common Stock issued pursuant to any qualification as to materiality Awards granted under this Agreement or Material Adverse Effect contained thereinthe Plan, unless (a) as would not have, individually there is in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) such shares a registration statement under the Company Securities Act, and any applicable state or (y) foreign securities laws or an exemption from such registration under the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
Securities Act and applicable state or foreign securities laws, and (b) there has been obtained any other consent, approval or permit from any other regulatory body or self-regulatory organization that the Committee, in its sole discretion, deems necessary or advisable. The obligation Company may condition such issuance, sale or transfer upon the receipt of any representations or agreements from the parties involved, and the placement of any legends on certificates representing shares of Common Stock, as may be deemed necessary or advisable by the Company in order to comply with such securities law or other restrictions. The Committee may restrict the rights of Participants to the extent necessary to comply with Article 16(b) of the Exchange Act, the Code or any other applicable law or regulation. The grant of an Award pursuant to this Agreement or the Plan shall not limit in any way the right or power of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement make adjustments, reclassifications, reorganizations or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all changes of its obligations hereunder theretofore capital or business structure or to be performed.
(c) The obligation of each of the Investor and the Company merge, exchange or consolidate or to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law dissolve, liquidate, sell or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor transfer all or any part of its affiliates to file a prior notice under the Change in Bank Control Act, business or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedassets.
Appears in 2 contracts
Sources: Stock Option Agreement (M-Tron Industries, Inc.), Stock Option Agreement (LGL Group Inc)
Conditions. The Employer agrees:
(ai) The obligation With respect to the investment option of the Investor to consummate Plan that is funded under the Closing shall be subject Guaranteed Interest Option and to the condition extent that all representations the Plan provides for allocations to, and warranties transfers to and other statements from such option are to be made solely at the discretion of the Company shall be true individuals covered by the Plan, such allocations and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures transfers are to be so true and correct (without giving effect to any qualification as to materiality made in accordance with instructions by the Employer or Material Adverse Effect contained therein) as would not have, individually in Participant covered by the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore Plan. We are to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated given at least 60 days advance written notice by the Branch Purchase AgreementEmployer of any noncompliance with this condition.
(bii) The obligation Employer is to provide us with any amendment to the Plan or its investment policy, any communication to the Participants covered by the Plan concerning the Guaranteed Interest Option or the investment option of the Company Plan to consummate which it relates, or any change in the Closing shall manner in which the Plan is administered. Any such document is to be subject provided to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement us at least 60 days before its effective date. We may also request, and the date Employer will thereupon provide, any other information that we reasonably determine would bear upon the flow of funds to and from the Closing (except those representations and warranties that by their terms speak specifically as of Guaranteed Interest Option. If the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not conditions stated in (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; and (ii) require above are not complied with or, if the Investor Employer fails to remit Contributions in accordance with Part III on "Contributions, Allocations and Discontinuance" or if we determine and so notify the Employer by written notice that an amendment to the Plan, its investment policy, or any change in the manner in which the Plan is administered would materially and adversely affect the flow of its affiliates funds to become a bank holding company; or (iii) cause from the InvestorGuaranteed Interest Option, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or then we will have the power right to:
1. decline further requests for transfers to vote securities which (assumingor from the Guaranteed Interest Option; and/or
2. deem that a discontinuance of Contributions has occurred under the section, for this purpose only, full conversion and/or exercise "Discontinuance of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedContributions".
Appears in 2 contracts
Sources: Group Flexible Premium Deferred Variable Annuity Contract (Separate Account a of Axa Equitable Life Insurance Co), Group Annuity Contract (Separate Account a of Equitable Life Assu Soc of the Us)
Conditions. (a) The obligation obligations of the Investor each party to consummate the Blackstone Repurchase and to effectuate the Closing shall be are subject to the condition that all representations and warranties and other statements closing of the Company shall be true Blackstone Secondary Offering and correct as the delivery to the underwriters of the date of this Agreement shares purchased in the Blackstone Secondary Offering and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof Purchase Price per share being no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementgreater than $ .
(b) The obligation obligations of the Company to consummate the Blackstone Repurchase and to effectuate the Closing shall be are subject to the condition that all the representations and warranties and other statements of the Investor Blackstone set forth in this Agreement shall be true and correct in all material respects on and as of the date of this Agreement Closing Date as though made on and the date as of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) The obligation obligations of each of the Investor and the Company Blackstone to consummate the Blackstone Repurchase and to effectuate the Closing shall be are subject to the following additional conditions:
(1) no provision of any applicable law or regulation condition that the representations and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities warranties of the Company would set forth in this Agreement shall be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor true and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding correct in all material respects on the date and as of the Closing Date as though made on and as of the Closing Date.
(d) The obligations of each party to consummate the Blackstone Repurchase and to effectuate the Closing are subject to the condition that immediately after giving effect to the purchase consummation of the Investor Shares contemplated hereby); and
Blackstone Repurchase (3i) the conditions set forth in Section 10 present fair value and fair saleable value of the Branch Purchase Agreement, other assets of the Company is not less than the condition set forth in Section 10.3(e) total amount of the Branch Purchase Agreement with respect to the Company’s acceptance liabilities (including contingent liabilities); (ii) the Company should be able to pay its debts as they become due and mature; (iii) the Company does not engage in any business or transaction, for which its property would constitute unreasonably small capital; and (iv) the actual, current value of the proceeds of Company’s assets minus its liabilities shall be greater than the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedCompany’s statutory capital.
Appears in 2 contracts
Sources: Share Repurchase Agreement (SeaWorld Entertainment, Inc.), Share Repurchase Agreement (SeaWorld Entertainment, Inc.)
Conditions. Notwithstanding anything in this Agreement or the Plan to the contrary: (a) The obligation the Company may, if it shall determine it necessary or desirable for any reason, at the time of award of any Option or the issuance of any shares of Common Stock pursuant to any Option, require the recipient of the Investor to consummate the Closing shall be subject Option, as a condition to the receipt thereof or to the receipt of shares of Common Stock issued pursuant thereto, to deliver to the Company a written representation of present intention to acquire the Option or the shares of Common Stock issued pursuant thereto for its, his or her own account for investment and not for distribution; and (b) if at any time the Company further determines, in its sole discretion, that the listing, registration or qualification (or any updating of any such document) of any Option or the shares of Common Stock issuable pursuant thereto is necessary on any securities exchange or under any federal or state securities or blue sky law, or that the consent or approval of any governmental regulatory body is necessary or desirable as a condition that all representations and warranties and of, or in connection with the award of any Option, the issuance of shares of Common Stock pursuant thereto, or the removal of any restrictions imposed on such shares, such Option shall not be awarded or such shares of Common Stock shall not be issued or such restrictions shall not be removed, as the case may be, in whole or in part, unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Company. Notwithstanding any other statements provision of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of Plan, this Agreement or some any other date shall agreements entered into pursuant to the Plan, the Company will not be true required to issue any shares of Common Stock under this Agreement or the Plan, and correct as a Participant may not sell, assign, transfer or otherwise dispose of such date), except for such failures to be so true and correct (without giving effect shares of Common Stock issued pursuant to any qualification as to materiality Options granted under this Agreement or Material Adverse Effect contained thereinthe Plan, unless (a) as would not have, individually there is in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) such shares a registration statement under the Company Securities Act, and any applicable state or (y) foreign securities laws or an exemption from such registration under the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
Securities Act and applicable state or foreign securities laws, and (b) there has been obtained any other consent, approval or permit from any other regulatory body which the Administrator, in its sole discretion, deems necessary or advisable. The obligation Company may condition such issuance, sale or transfer upon the receipt of any representations or agreements from the parties involved, and the placement of any legends on certificates representing shares of Common Stock, as may be deemed necessary or advisable by the Company in order to comply with such securities law or other restrictions. The Administrator may restrict the rights of Participants to the extent necessary to comply with Section 16(b) of the Exchange Act, the Code or any other applicable law or regulation. The grant of an Option pursuant to this Agreement or the Plan shall not limit in any way the right or power of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement make adjustments, reclassifications, reorganizations or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all changes of its obligations hereunder theretofore capital or business structure or to be performed.
(c) The obligation of each of the Investor and the Company merge, exchange or consolidate or to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law dissolve, liquidate, sell or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor transfer all or any part of its affiliates to file a prior notice under the Change in Bank Control Act, business or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedassets.
Appears in 2 contracts
Sources: Non Qualified Stock Option Agreement (Global Pari-Mutuel Services, Inc.), Option Agreement (Global Pari-Mutuel Services, Inc.)
Conditions. 10.3.1 The indemnities set out in Section 10.1 and Section 10.2 shall not apply to any such claim or proceedings:
(a) The obligation unless as soon as reasonably practicable following receipt of notice of such claim or proceedings, the Indemnified Person shall have notified the indemnifying Party in writing of it and shall, upon the indemnifying Party’s request and at that indemnifying Party’s cost, have permitted the indemnifying Party to have full care and control of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement claim or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all proceedings using legal representation of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein)own choosing; and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.or
(b) The obligation if the Indemnified Person shall have made any admission in respect of such claim or proceedings or taken any action relating to such claim or proceedings prejudicial to the defence of it without the written consent of the Company indemnifying Party (such consent not to consummate the Closing be unreasonably withheld or delayed), provided that no Indemnified Person shall be subject deemed to be in breach of this condition by any statement properly made by the condition that all representations and warranties and other statements Indemnified Person in connection with the operation of the Investor shall be true Indemnified Person’s internal complaint procedures, accident reporting procedures, or disciplinary procedures, or where such a statement is required by law.
10.3.2 The indemnifying Party shall, in relation to any claim or proceedings it has assumed care and correct as control of under Section 10.3.1(a):
(a) keep the Indemnified Pperson fully informed of the date progress of this Agreement and any claim or proceedings;
(b) consult fully with the date Indemnified Person on the nature of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore any defence to be performed.advanced; and
(c) The obligation of each not, without the prior written consent of the Investor and the Company Indemnified Person (such consent not to consummate the Closing shall be subject to the following additional conditions:
unreasonably withheld or delayed), enter into any settlement or compromise of such claim or proceedings which: (1a) no provision of any applicable law would result in injunctive or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding companyother relief being imposed against an Indemnified Person; or (iiib) cause does not include as an unconditional term the Investor, together with any giving by the claimant to all applicable Indemnified Persons of a release from liability in relation to such claim or proceedings.
10.3.3 Each Party shall use its reasonable endeavours to inform the other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes Party promptly of any bank regulation circumstances that are likely to give rise to a claim or lawproceedings in respect of which it may be entitled to indemnification under Section 10.1 or Section 10.2; and shall keep the other Party reasonably informed of developments in relation to any such claim or proceedings, even where the Party does not intend to collectively be deemed make a claim under Section 10.1 or Section 10.2.
10.3.4 Each Party shall give to own, control or have the power to vote securities which (assuming, indemnifying Party such assistance as it may reasonably require for this purpose only, full conversion and/or exercise of such securities by the Investor conduct and such other persons) would represent more than 9.9% prompt handling of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); andsuch claim or proceedings.
(3) the conditions set forth 10.3.5 Nothing in Section 10 10.1 or Section 10.2 shall restrict or limit an Indemnified Person’s general obligation at law to mitigate a loss it may suffer or incur as a result of the Branch Purchase Agreement, other than the condition set forth in an event that gives rise to a claim under Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied 10.1 or waivedSection 10.2.
Appears in 2 contracts
Sources: Manufacturing and Clinical Trial Agreement (TEKMIRA PHARMACEUTICALS Corp), Manufacturing and Clinical Trial Agreement (TEKMIRA PHARMACEUTICALS Corp)
Conditions. (a) The Each Backstop Purchaser’s obligation to purchase shares of the Investor Class A Common Stock pursuant to consummate the Closing shall be its Backstop Commitment is subject to the condition that following conditions: (i) the Company shall be in compliance with its obligations under this Agreement in all material respects; (ii) the representations and warranties and other statements of the Company set forth in this Agreement shall be true and correct as of the date of this Agreement and the date Closing and the failure of the Closing (except those any such representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as has not resulted in, and would not havereasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect; and (iii) to the condition that extent required by the rules of Nasdaq, the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and obtained the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase AgreementStockholder Approval.
(b) The obligation of the Company to consummate the Closing shall be Company’s obligations hereunder are subject to the condition that following conditions: (i) the Backstop Purchasers shall be in compliance with their respective obligations under this Agreement in all material respects; (ii) the representations and warranties and other statements of the Investor Backstop Purchasers hereunder shall be true and correct as of the date of this Agreement and the date Closing and the failure of the Closing (except those any such representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall to be so true and correct as has not resulted in, and would not reasonably be expected to result in, individually or in the aggregate, a material adverse effect on the ability of such date)the Backstop Purchasers to consummate the transactions contemplated by this Agreement; and (iii) to the condition that extent required by the Investor rules of Nasdaq, the Company shall have performed all of its obligations hereunder theretofore to be performedobtained the Stockholder Approval.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be is further subject to the following additional conditions:
(1) no provision of any applicable law satisfaction or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any waiver of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not following conditions: (i) require consummation of the Investor or any Rights Offering and delivery of its affiliates the Subscription Notice to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulatorBackstop Purchasers; (ii) require to the Investor or any extent required by the rules of its affiliates to become a bank holding companyNasdaq, stockholder approval of this Agreement and the issuance of the Backstop Acquired Shares in compliance with Nasdaq Rule 5635 (the “Stockholder Approval”); or and (iii) cause the Investor, together with any other person whose securities consummation of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedExchange Transactions.
Appears in 2 contracts
Sources: Exchange Agreement (Rent the Runway, Inc.), Rights Offering Backstop Agreement (Rent the Runway, Inc.)
Conditions. (a) The obligation obligations of the Investor Sellers and Purchaser to consummate the Closing transactions contemplated by this Agreement shall be subject to the condition that all representations and warranties and other statements satisfaction or waiver, on or before the Closing Date, of the Company shall be true following conditions:
(i) All waiting periods (and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinextension thereof) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect under laws applicable to the transactions contemplated by this Agreement shall have expired or been earlier terminated.
(ii) There shall be no injunction, restraining order or decree of any nature of any court or governmental authority that is in effect that restrains or prohibits the Branch Purchase consummation of the transactions contemplated by this Agreement or imposes conditions on such consummation not otherwise provided for herein.
(iii) Neither Purchaser nor any Seller shall have been advised by any United States federal government agency (which advisory has not been officially withdrawn on or prior to the Closing Date) that such government agency is investigating the transactions contemplated by this Agreement to determine whether to file or commence any litigation that seeks or would seek to enjoin, restrain or prohibit the consummation of the transactions contemplated by this Agreement. In the event any of the above conditions is not satisfied on or before the Closing, either Forestar Petroleum, Forestar (USA) or Purchaser will have the right, exercisable at its sole election, to terminate this Agreement by delivering written notice to the other Parties before the Closing, whereupon Escrow Agent will return the ▇▇▇▇▇▇▇ Money to Purchaser, and the Parties will have no further rights or obligations hereunder (except as otherwise expressly provided herein).
(b) The obligation Unless waived by Purchaser, in addition to any other conditions set forth in this Agreement, the obligations of Purchaser under this Agreement are expressly made subject to the fulfillment in all respects of the following conditions precedent:
(i) the truth and accuracy as of the Closing Date, in all material respects, of each and every warranty and representation herein made by any Seller;
(ii) Each Seller’s timely performance of and compliance with, in all material respects, each and every term, condition, agreement, restriction and obligation to be performed and complied with by such Seller under this Agreement;
(iii) The aggregate acreage of all Title Objection Property, Title Failure Property and Environmental Property shall not exceed twenty percent (20%) of the acreage of the Timberlands;
(iv) Purchaser’s receipt of a binding commitment from the Title Company to issue a title insurance policy insuring Purchaser’s title to the Property following the Closing, subject only to the Permitted Encumbrances; and
(v) Sellers’ obtaining of all corporate approvals, consents and authorizations as may be required for Sellers to consummate the Closing transaction contemplated by this Agreement. In the event any of the above conditions is not satisfied on or before the Closing, Purchaser will have the right, exercisable at Purchaser’s sole election, to exercise the remedies described in Section 15(b). Notwithstanding the foregoing sentence, in the event of either Seller’s failure to fulfill any condition precedent set forth in Section 14(b)(ii), Purchaser shall be subject provide written notice to such Seller and such Seller shall have seven (7) days from receipt of such notice to fulfill the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such dateprecedent before Purchaser may exercise any remedies described in Section 15(b); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation Unless waived by a Seller, the obligations of each of the Investor and the Company to consummate the Closing shall be such Seller under this Agreement are expressly made subject to the fulfillment in all respects of the following additional conditionsconditions precedent:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2i) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor truth and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date accuracy as of the Closing (after giving effect to the purchase Date, in all material respects, of the Investor Shares contemplated hereby)each and every warranty and representation herein made by Purchaser; and
(3ii) Purchaser’s timely performance of and compliance with, in all material respects, each and every term, condition, agreement, restriction and obligation to be performed and complied with by Purchaser under this Agreement.
(iii) The aggregate acreage of all Title Objection Property shall not exceed ten percent (10%) of the acreage of the Timberlands In the event any of the above conditions is not satisfied on or before the Closing, either Seller will have the right, exercisable at such Party’s sole election, to exercise the remedies described in Section 15(a), provided that if either Seller elects to exercise such remedy, the other Seller shall be deemed to have made an identical election. Notwithstanding the foregoing sentence, in the event of Purchaser’s failure to fulfill any condition precedent set forth in Section 10 14(c)(i) or (ii), Sellers shall provide written notice to Purchaser and Purchaser shall have seven (7) days from receipt of the Branch Purchase Agreement, other than such notice to fulfill the condition set forth precedent before Sellers may exercise any remedies described in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement15(c), shall have been satisfied or waived.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Forestar Group Inc.), Purchase and Sale Agreement (Forestar Group Inc.)
Conditions. (a) The obligation obligations of the Investor Vendors to consummate sell the Closing Purchased Shares shall be subject to the condition that satisfaction, on or before the Closing Date, of each of the following conditions precedent (each of which is for the exclusive benefit of the Vendors and may be waived by the Vendors, in whole or in part at their option, and any one or more of which, if not satisfied or waived, will relieve the Vendors of any obligation under this Agreement):
(a) each of the acts, undertakings, obligations, agreements and covenants of the Purchaser under this Agreement or under any Closing Document to be performed or complied with on or before the Closing Date shall have been duly performed or complied with in all material respects, and the Vendors shall have received a certificate of the Purchaser addressed to the Vendors and dated as of the Closing Date, confirming same. The acceptance by the Vendors, in their sole discretion, of a certificate which does not correspond in all respects to the terms of the preceding sentence shall be deemed to constitute a variation or amendment, to the extent therein described, of the provisions of this Agreement or any Closing Document; and
(b) each of the representations and warranties and other statements made in favour of the Company Vendors pursuant to this Agreement shall be true true, complete and correct as of the date of this Agreement and the date of the Closing in all material respects (except that those representations and warranties that by their terms speak specifically which are qualified as of to material, materiality, Material Adverse Change or similar expressions, or are subject to the date of this Agreement same or some other date similar type exceptions, shall be true true, complete and correct in all respects) on the Closing Date as if made on and as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company Vendors shall have performed in all material respects all received a certificate of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect Purchaser addressed to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations Vendors and warranties and other statements of the Investor shall be true and correct dated as of the date Closing Date, confirming same. The acceptance by the Vendors, in their sole discretion, of this Agreement and a certificate which does not correspond in all respects to the date terms of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date preceding sentence shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% be a waiver of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect representation or warranty contained in this Agreement to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedextent therein described.
Appears in 2 contracts
Sources: Share Purchase Agreement (Argo Blockchain PLC), Share Purchase Agreement (Argo Blockchain PLC)
Conditions. 6.2.1 Notwithstanding anything herein contained, the obligation of the Vendor to complete the transactions provided for herein will be subject to the fulfilment of the following conditions at or prior to the Time of Closing, and the Purchaser covenants to use its commercially reasonable efforts to ensure that such conditions, to the extent under the control of the Purchaser, are fulfilled:
(a) The obligation consideration payable pursuant to Sections 2.1(a), 2.1(b) and 2.1(c) to Vendor for the acquisition of the Investor to consummate the Closing Purchased Shares shall be subject to delivered by the condition that all Purchaser.
(b) All representations and warranties and other statements of the Company Purchaser as contained in this Agreement shall be true and correct in all material respects to the extent not qualified by materiality or Purchaser Material Adverse Effect and in all respects to the extent qualified by materiality or Purchaser Material Adverse Effect as of the Closing Date as if made on and as of such date (except for representations and warranties made as of a specified date, the accuracy of which shall be determined as of that specified date).
(c) All covenants to be performed by the Purchaser by the Closing Date as contained in this Agreement shall have been performed and the Purchaser shall have complied in all material respects with its covenants in this Agreement.
(d) All Consents and Regulatory Approvals required to be obtained by the Purchaser in connection with this Agreement and the Investor Rights Agreement and the transactions contemplated hereunder and thereunder shall have been obtained on terms and conditions satisfactory to Vendor, acting reasonably.
(e) There shall not exist any prohibition under Law, including a cease trade order, injunction or other prohibition or order at law or under applicable legislation, against Purchaser which shall prevent the consummation of the transactions contemplated hereby or prevent the trading of the common shares of the Purchaser.
(f) Since the date of this Agreement Agreement, there shall not have been any Purchaser Material Adverse Effect.
(g) The Purchaser executing and delivering in favour of Vendor the Investor Rights Agreement.
(h) The Purchaser shall deliver to the Vendor all in form and substance acceptable to Vendor, acting reasonably:
(i) a certificate of incumbency with respect to Purchaser;
(ii) a copy of the resolution of its Board of Directors (certified by a duly appointed officer as true and correct), authorising the signature of and the date performance by Purchaser of its obligations under this Agreement, the Investor Rights Agreement, and each of the other documents (if any) to be executed by Purchaser pursuant to this Agreement or any of the foregoing agreements; and
(iii) a certificate by Purchaser confirming that (i) all representations and warranties made pursuant to Section 3.2 of this Agreement are true and correct in all material respects to the extent not qualified by materiality or Purchaser Material Adverse Effect and in all respects to the extent qualified by materiality or Purchaser Material Adverse Effect as of the Closing Date as if made on and as of such date (except those for representations and warranties that by their terms speak specifically made as of a specified date, the date accuracy of which shall be determined as of that specified date) and (ii) all covenants to be performed by the Purchaser by the Closing Date as contained in this Agreement have been performed and the Purchaser has complied in all material respects with its covenants in this Agreement.
(i) The Purchaser shall have delivered to Vendor all documentation required under the policies of the CSE relating to the issuance of Talisker Securities to Vendor pursuant to Section 2.1.
(j) The Samsung Security Interest shall have been discharged.
6.2.2 Notwithstanding anything herein contained, the obligation of the Purchaser to complete the transactions provided for herein will be subject to the fulfilment of the following conditions at or some other date prior to the Time of Closing, and Vendor and Bralorne, as the case may be, covenant to use their commercially reasonable efforts to ensure that such conditions are fulfilled:
(a) All representations and warranties of Vendor in this Agreement shall be true and correct in all material respects to the extent not qualified by materiality or material adverse effect and in all respects to the extent qualified by materiality or material adverse effect as of the Closing Date as if made on and as of such date (except for representations and warranties made as of a specified date, the accuracy of which shall be determined as of that specified date), except for such failures .
(b) All covenants to be so true and correct (without giving effect to any qualification performed by the Vendor or Bralorne by the Closing Date as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company this Agreement shall have been performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since Vendor or Bralorne, as the date hereof no Material Adverse Effect case may be, shall have occurred and be continuing complied in all material respects with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase its covenants in this Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation All Consents and Regulatory Approvals required to be obtained by Bralorne or Vendor in connection with this Agreement and the transactions contemplated hereunder shall have been obtained on terms and conditions satisfactory to Purchaser, acting reasonably.
(d) Vendor shall have caused Bralorne to file a notice of alteration in the form attached hereto as Schedule 6.2.2(d) to create the Class A Shares and Vendor shall have subscribed for that number of the Class A Shares for nominal consideration to provide Vendor with 50.1% of the outstanding votes required to elect Bralorne's directors immediately after the Closing.
(e) Bralorne’s directors shall have tendered their resignations.
(f) Vendor and Purchaser shall have entered into a shareholders agreement that is not a "unanimous shareholders agreement" pursuant to the Business Corporations Act (British Columbia), that will: (i) specify the size of Bralorne's board of directors and provide that Purchaser, as the holder of all of the outstanding common shares of Bralorne, will be entitled to nominate all of the directors of Bralorne; and (ii) provide that any matters requiring shareholder approval while Vendor holds Class A Shares must be approved by a special resolution of all shareholders, which shareholders agreement shall be in the form attached hereto as Schedule 6.2.2(f).
(g) Vendor shall deliver, or cause Bralorne to deliver, as the case may be, to the Purchaser, among other documents, all in form and substance acceptable to the Purchaser:
(i) the Books and Records of Bralorne within its possession or control;
(ii) the share certificates (duly endorsed for transfer to the Purchaser or, as the Purchaser may direct, the Purchaser’s nominee) representing the Purchased Shares and shall cause Bralorne to register the transfer of the shares;
(iii) a certificate of incumbency with respect to the Vendor;
(iv) evidence satisfactory to Purchaser of the discharge of the Samsung Security Interest;
(v) evidence satisfactory to Purchaser that Bralorne has sufficient cash on hand on the Closing Date to at a minimum satisfy the FT Expenses;
(vi) evidence satisfactory to the Purchaser that the requirements of Section 4.1(o) have been satisfied in its sole discretion;
(vii) evidence satisfactory to the Purchaser that the requirements of Section 4.1(p) have been satisfied in its sole discretion;
(viii) a certificate of good standing or equivalent with respect to Bralorne;
(ix) a mutual release between the directors and officers, on the one hand, and Bralorne, on the other hand, with effect from the Time of Closing, of those claims by and against Bralorne, as applicable, in the form satisfactory to Purchaser;
(x) a mutual release between Vendor and Bralorne with effect from the Time of Closing of those claims by and against Bralorne, in the form satisfactory to Purchaser;
(xi) a certificate executed by a senior officer of Vendor confirming that (A) all representations and warranties of Vendor in this Agreement are true and correct in all material respects to the extent not qualified by materiality or material adverse effect and in all respects to the extent qualified by materiality or material adverse effect as of the Closing Date as if made on and as of such date (except for representations and warranties made as of a specified date, the accuracy of which shall be determined as of that specified date); (B) all covenants to be performed by the Vendor or Bralorne by the Closing Date as contained in this Agreement have been performed in all material respects and each of the Investor Vendor and Bralorne, as the case may be, has complied in all material respects with its covenants in this Agreement; and (C) as of the Closing Time, Bralorne has no outstanding indebtedness or any liabilities or obligations (whether accrued, absolute, contingent or otherwise, matured or unmatured, including under any guarantee of any debt) other than Reclamation and Rehabilitation Costs and the Company to consummate royalties set out in Schedule 1.1(uu) of the Closing shall be subject Disclosure Letter;
(xii) an opinion of Vendor’s legal counsel addressed to the following additional conditions:
(1) no provision of any applicable law or regulation Purchaser as to certain legal matters relating to Vendor and no judgmentBralorne, injunctionincluding corporate existence, order or decree shall prohibit authorization and enforceability relating to the transactions contemplated hereby or prohibit hereby, the Investor from owning or voting any authorized and issued share capital of Bralorne and the shareholders of Bralorne as at the Time of Closing and the transfer of the Investor Shares;
(2) Purchased Shares to the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActPurchaser, or otherwise seek prior approval or non-objection free and clear of any state or federal banking regulator; (ii) require and all Encumbrances, in form and substance satisfactory to the Investor or any of Purchaser and its affiliates to become a bank holding company; or (iii) cause the Investorcounsel, together with any other person whose securities of the Company would be aggregated acting reasonably, and which is consistent in all material respects with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise draft of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect opinion that has been provided to the purchase of Purchaser and its counsel prior to the Investor Shares contemplated hereby)execution this Agreement; and
(3xiii) the conditions Pro Forma Balance Sheet.
(h) Vendor executing and delivering in favour of Purchaser the Investor Rights Agreement.
(i) Vendor and Bralorne shall have completed the reorganization set forth out in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(eSchedule 6.2.2(i) of the Branch Purchase Agreement Disclosure Letter.
6.2.3 The conditions precedent set out in Section 6.2.1 (except for the Regulatory Approvals required to be obtained in Sections 6.2.1(c) and 6.2.1(d), which are provided for the mutual benefit of the Purchaser and Vendor) are inserted for the sole benefit of Vendor and the conditions precedent set out in Section 6.2.2 (except for the Regulatory Approvals required to be obtained in Sections 6.2.2(b) and 6.2.2(c), which are provided for the mutual benefit of the Purchaser and Vendor) are inserted for the sole benefit of the Purchaser. Either of the Purchaser or the Vendor may refuse to proceed with respect the closing of the purchase and sale of the Purchased Shares if the conditions precedent inserted for its benefit are not fulfilled to its reasonable satisfaction prior to the CompanyClosing Date and it shall incur no liability to any other party by reason of such refusal.
6.2.4 The foregoing conditions precedent may be waived in whole or in part by the party for whose benefit they are inserted in that party’s acceptance absolute discretion. No such waiver shall be of any effect unless it is in writing signed by the proceeds of Party granting the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedwaiver.
Appears in 2 contracts
Sources: Share Purchase Agreement (Avino Silver & Gold Mines LTD), Share Purchase Agreement
Conditions. The obligations of the Initial Purchasers to purchase the Notes under this Agreement are subject to the performance by each of the Company and each of the Guarantors of their respective covenants and obligations hereunder and the satisfaction of each of the following conditions:
(a) The obligation All of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company and the Subsidiaries contained in this Agreement and in each of the Transaction Documents shall be true and correct as of the date of this Agreement hereof and the date of at the Closing (Date, except those to the extent that the failure of such representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or “material,” “materiality,” “Material Adverse Effect contained thereinEffect” or any similar terms, qualifications or limitations to such representations and warranties) as to be true or correct individually or in the aggregate would not havereasonably be expected to have a Material Adverse Effect. On or prior to the Closing Date, the Company and each other party to the Transaction Documents (other than the Initial Purchasers) shall have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Transaction Documents (other than conditions to be satisfied by such other parties, which the failure to so satisfy would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; ).
(b) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the condition Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Transaction Documents. No stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company, be pending or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Transaction Documents. No Proceeding shall be pending or, to the knowledge of the Company, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Pricing Disclosure Package and the Final Offering Memorandum, there shall not have been any event that would have a Material Adverse Effect.
(e) The Notes shall (i) have been designated PORTAL securities in accordance with the rules and regulations adopted by the Financial Industry Regulatory Authority relating to trading in the PORTAL market, and (ii) be eligible for clearance and settlement through DTC.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(g) The Initial Purchasers shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (1) the Chief Executive Officer of the Company and (2) the Chief Financial Officer of the Company, on behalf of the Company, to the effect that (a) the representations and warranties set forth in Section 4 hereof and in each of the Transaction Documents are true and correct in all respects, except to the extent that the Company shall have performed in all material respects all failure of its obligations hereunder theretofore to be performed such representations and warranties (without giving effect to any qualification as to materiality or “material,” “materiality,” “Material Adverse Effect contained therein); Effect” or any similar terms, qualifications or limitations to such representations and warranties) to be true or correct individually or in the condition that aggregate would not reasonably be expected to have a Material Adverse Effect, with the same force and effect as though expressly made at and as of the Closing Date, (b) the Company has performed and complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect shall have occurred Effect, (d) since the date of the most recent financial statements in the Pricing Disclosure Package and be continuing with respect the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), other than as described in the Pricing Disclosure Package and the Final Offering Memorandum or contemplated hereby, neither the Company nor any Subsidiary of the Company has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to either the Company and the Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long- term indebtedness of the Company or any Subsidiary of the Company that is material to the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole, and (e) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company and each Guarantor, certifying such matters as the Initial Purchasers may reasonably request covering such matters as are customarily covered in such certificates.
(iii) a perfection certificate, dated the Closing Date, executed by an officer of the Company and each of the Guarantors substantially in the form previously provided to counsel of Company.
(iv) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in the form previously approved by the Initial Purchasers or its counsel.
(v) the opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(vi) the opinion of ▇▇▇▇▇ ▇▇▇▇▇ Heuer & ▇▇▇▇▇, P.C., local Michigan counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers.
(vii) the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, local Indiana counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers.
(viii) the opinion of ▇▇▇▇▇, Brown, Koehn, Shors & ▇▇▇▇▇▇▇, P.C., local Iowa counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers.
(ix) the opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L.P., local Minnesota counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers.
(x) the Company or (y) the Company after giving effect opinion of Proskauer Rose LLP, counsel to the transactions contemplated by Initial Purchasers, dated the Branch Purchase AgreementClosing Date, in form satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(bxi) a copy of a payoff letter or other evidence of repayment in form and substance reasonably satisfactory to the Initial Purchasers from the administrative agent under the Existing Credit Facility, releasing the Company and the Guarantors from all obligations under the Existing Credit Facility and any guarantees thereunder, which letter shall become effective immediately following the application of the net proceeds of the Offering as set forth under the “Use of Proceeds” section in the Pricing Disclosure Package and Final Offering Memorandum.
(h) The obligation Initial Purchasers shall have received on the date hereof and on the Closing Date a certificate from the Chief Financial Officer of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct Company, dated as of the date hereof and thereof, substantially in the form of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedExhibit A attached hereto.
(ci) The obligation of each of the Investor and the Company to consummate the Closing Initial Purchasers shall be subject to the following additional conditions:
have received (1A) no provision of any applicable law or regulation and no judgmenta customary comfort letter from PricewaterhouseCoopers LLP, injunctionindependent auditors, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance , dated as of the proceeds date hereof, in form and substance satisfactory to the Initial Purchasers and its counsel, with respect to the financial statements and certain financial information contained in the Pricing Disclosure Package and the Final Offering Memorandum and (B) a customary bring-down comfort letter from PricewaterhouseCoopers LLP, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers and its counsel, to the effect that PricewaterhouseCoopers LLP reaffirms the statements made in its letter furnished pursuant to clause (A) with respect to the financial statements and certain financial information contained in the Pricing Disclosure Package and the Final Offering Memorandum.
(j) Each of the Acceptable Financing (as defined in the Branch Purchase Agreement), Transaction Documents shall have been executed and delivered by all parties thereto, and the Initial Purchasers shall have received a fully executed original of each of the Transaction Documents.
(k) The terms of each Transaction Document shall conform in all material respects to the description thereof in the Pricing Disclosure Package and the Final Offering Memorandum.
(l) The Collateral Agent shall have received (with a copy for the Initial Purchasers) on the Closing Date:
(i) appropriately completed copies of Uniform Commercial Code financing statements naming the Company and each Guarantor as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Security Agreement;
(ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any Security Agreement previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company or any Guarantor (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Documents, other than such financing statements that evidence Permitted Liens);
(iv) such other approvals, opinions, or documents as the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Collateral Agent; and
(v) the Collateral Agent and its counsel shall be satisfied that (A) the Lien granted to the Collateral Agent, for the benefit of the Secured Parties in the collateral described above is of the priority described in the Pricing Disclosure Package and the Final Offering Memorandum; and (B) no Lien exists on any of the collateral described above other than the Lien created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Documents, in each case subject to the Permitted Liens.
(m) All Uniform Commercial Code financing statements or waivedother similar financing statements and Uniform Commercial Code Form UCC-3 termination statements required pursuant to clause (l)(i) and (l)(ii) above shall have been delivered to CT Corporation System or another similar filing service company acceptable to the Collateral Agent.
Appears in 2 contracts
Sources: Purchase Agreement (CPM Holdings, Inc.), Purchase Agreement (CPM Holdings, Inc.)
Conditions. (a) The obligation of Star to make its contributions at Closing to the Investor to consummate capital of the Closing Partnership provided for herein shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that performance by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed ▇▇▇▇▇ in all material respects of all of its obligations hereunder theretofore the agreements to be performed (without giving effect to any qualification as to materiality by it hereunder on or Material Adverse Effect contained therein); before the Closing Date, and the condition that since accuracy in all material respects of the date hereof no Material Adverse Effect representations in Exhibit B and to the following further conditions:
(a) ▇▇▇▇▇ shall have occurred conducted its business operations at the Theatre Properties in the ordinary course and be continuing with respect to either (x) in the Company or (y) same manner in which the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementsame have heretofore been conducted.
(b) The obligation After the date hereof, ▇▇▇▇▇ shall have incurred no expenses or obligations, without the consent of the Company to consummate the Closing shall be subject Star, relating to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed▇▇▇▇▇ Undeveloped Theatre Property.
(c) The obligation Star shall have received, from counsel to ▇▇▇▇▇, an opinion in the form of each of the Investor and the Company to consummate Exhibit E.
(d) There shall not be pending or threatened on the Closing shall be subject Date any action, suit or proceeding, whether administrative or judicial, seeking to enjoin, restrain, prohibit or invalidate the following additional conditions:
(1) no provision consummation of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby by this Agreement or prohibit which may adversely affect the Investor right of the Partnership directly or indirectly to lease, operate or control any or all of the Theatre Properties, nor shall there be in effect on the Closing Date any order, judgment or decree by any court or other governmental body enjoining, restraining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement or subjecting Star or the Partnership to any liability.
(e) Star shall have received a letter from owning ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇, dated as of the Closing Date, in form and substance reasonably satisfactory to the Star Partner, stating that each of ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ agrees to perform and be bound by the terms of this Agreement applicable to him or voting her, as if each was a signatory hereto.
(f) Star shall have received owner’s policies of title insurance, in the name of the Partnership at Star’s expense, on American Land Title Association Owner’s Form B (1987), including mechanic’s lien coverage and survey coverage, issued by a reputable title insurance company satisfactory to Star (the “Title Company”), dated the Closing Date in amounts reasonably acceptable to Star and reinsured by reputable title insurance companies (the “Reinsurance Companies”), reasonably satisfactory to Star in amounts reasonably acceptable to Star, which Reinsurance Companies each shall have entered into a direct access agreement with Star, with respect to the Theatre Properties, insuring the Partnership’s leasehold interest in such Theatre Properties, subject only to Permitted Encumbrances (including easements and restrictions of record which do not interfere with the use of any of the Investor Shares;
(2Theatre Properties) the purchase by the Investor of the Investor Shares shall not (i) require the Investor and to no other exceptions, whether standard, printed or any of its affiliates to file a prior notice under the Change in Bank Control Actotherwise, or otherwise seek prior approval or and containing non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor imputation endorsements and such other personsaffirmative insurance as Star may reasonably request.
(g) would represent more than 9.9% of any class of voting securities Star shall have obtained, at its expense, ALTA surveys reasonably satisfactory to Star, of the Company outstanding on Theatre Properties.
(h) ▇▇▇▇▇ shall have delivered to Star the date of Disclosure Schedules required to be delivered by ▇▇▇▇▇ hereunder and the Closing (after giving effect exceptions to the purchase representations and warranties of the Investor Shares contemplated hereby); and
(3) the conditions ▇▇▇▇▇ set forth in Section 10 such Disclosure Schedules shall be reasonably acceptable to Star. If Star does not accept any exception set forth in a proposed Disclosure Schedule received from ▇▇▇▇▇, Star shall object to such exception by written notice to ▇▇▇▇▇ within ten (10) days after its receipt of the Branch Purchase Agreementsuch Disclosure Schedule. If Star does not object to any exception within such period, other than the condition set forth in this Section 10.3(e10.1(i) of the Branch Purchase Agreement shall be waived with respect to the Company’s acceptance of the proceeds of the Acceptable Financing such exception.
(as defined in the Branch Purchase Agreement), i) There shall have been obtained any necessary consents to the assignment of the Leases to the Partnership, and any necessary waivers of radius restrictions in such Leases.
(j) ▇▇▇▇▇ shall have delivered to Star a letter dated as of the Closing Date, in form and substance reasonably satisfactory to Star, certifying that the conditions specified in this Section 11.1 have been satisfied or waived(other than any conditions waived in writing by Star).
(k) ▇▇▇▇▇ shall have obtained non-disturbance agreements in form and substance satisfactory to Star, from all mortgagees of the Theatre Properties included in the Contributed Assets.
Appears in 2 contracts
Sources: Partnership Agreement (LCE AcquisitionSub, Inc.), Partnership Agreement (Loews Mountainside Cinemas, Inc.)
Conditions. (a) The obligation issuance, amendment or extension of the Investor to consummate the Closing shall be any Facility Letter of Credit is subject to the condition that all representations and warranties and other statements satisfaction in full of the Company following conditions on the Issuance Date:
(i) the Borrower shall have delivered to the Issuer at such times and in such manner as the Issuer may reasonably prescribe a Reimbursement Agreement and such other documents and materials as may be reasonably required pursuant to the terms thereof, and the proposed Facility Letter of Credit shall be true reasonably satisfactory to such Issuer in form and correct as content, provided, however, in the event of any conflict between the date terms of this Agreement and the date terms of the Closing Reimbursement Agreement, the terms of this Agreement shall control;
(except those ii) as of the Issuance Date no order, judgment or decree of any court, arbitrator or governmental authority shall enjoin or restrain such Issuer from issuing the Facility Letter of Credit and no law, rule or regulation applicable to the Issuer and no directive from any governmental authority with jurisdiction over the Issuer shall prohibit such Issuer from issuing Letters of Credit generally or from issuing that Facility Letter of Credit;
(iii) the following statements shall be true, and the Agent and such Issuer shall have received a certificate, substantially in the form of the certificate attached hereto as Exhibit D, signed by a duly authorized officer of the Borrower dated the Issuance Date stating that:
(a) the representations and warranties that by their terms speak specifically as of the date contained in Article IV of this Agreement or some other date shall be true and are correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all on and as of its obligations hereunder theretofore to be performed (without giving effect to any qualification such Issuance Date as to materiality or Material Adverse Effect contained therein); though made on and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect as of such Issuance Date except to the transactions contemplated by the Branch Purchase Agreement.extent that any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty is correct in all material respects as of such earlier date; and
(b) The obligation No Default or Event of Default has occurred and is continuing or would result from the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement issuance, amendment or some other date shall be true and correct as extension of such date); and the condition that the Investor shall have performed all Facility Letter of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor SharesCredit;
(2iv) the purchase by Issuer and the Investor of the Investor Shares Agent shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Acthave received such other approvals, opinions, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (documents as defined in the Branch Purchase Agreement), shall have been satisfied or waivedeither may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Clarksburg Skylark, LLC), Credit Agreement (Beazer Homes Usa Inc)
Conditions. 3.1 Completion of the Subscription shall be conditional upon the following conditions having been satisfied:
(a) The obligation the passing of an ordinary resolution by the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements independent shareholders of the Company shall be true and correct as at the general meeting of the date of this Agreement Company for approving the Specific Mandate and the date allotment and issue of the Closing New Shares by the Company in accordance with the Applicable Law (except those representations and warranties that by their terms speak specifically as including the GEM Listing Rules);
(b) the Listing Committee of the date Hong Kong Stock Exchange granting approval for the listing of, and permission to deal in, the New Shares on the Hong Kong Stock Exchange and such approval and permission remaining in full force and effect;
(c) the passing of this Agreement or some other date shall be true and correct as an ordinary resolution by the shareholders of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in at the general meeting of the Company for approving the increase of authorised share capital of the Company to HK$65,000,000 divided into 650,000,000 shares of HK$0.1 each;
(d) all material respects necessary governmental approvals, consents, filings and reports for the completion of the Subscription having been obtained or duly filed (as applicable) by the Company;
(e) all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); necessary governmental, shareholders’ and the condition that since third parties’ approvals, consents, filings and reports for the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either completion of the Subscription having been obtained or duly filed (xas applicable) by the Company or Subscriber; and
(yf) the Company after giving effect to the transactions contemplated by the Branch Purchase Acquisition Agreement having become unconditional in accordance with its terms (other than any condition relating to this Agreement having become unconditional).
3.2 The Company shall use all reasonable efforts to achieve satisfaction of the Conditions (a), (b), (c), (d) and (f) as soon as possible before the Long Stop Date, and the Subscriber shall use all reasonable efforts to achieve satisfaction of the Condition (e) as soon as possible before the Long Stop Date.
3.3 The conditions specified in clause 3.1 above are not capable of being waived by any of the parties hereto.
3.4 In the event that Completion does not take place by the Long Stop Date, the parties shall then consult each other and discuss a later date for the satisfaction of the Conditions and the Completion as the parties may agree in writing. In the event that the parties cannot agree to a later date, either party shall be entitled to terminate this Agreement by written notice to the other party and this Agreement and all rights and obligations of the parties hereunder shall cease and terminate save for accrued rights and obligations of the parties under this Agreement.
(b) The obligation 3.5 Each of the Company Parties shall, at the request of the relevant governmental authorities referred to consummate in clause 3.1 (the Closing Approval Authorities), furnish such information, supply such documents and do all such acts and things as may reasonably be required by such Approval Authorities in connection with the fulfillment of the Conditions in respect of such party, and each party shall be subject responsible for its own fees in relation thereto. At the request of a party, the other party shall update such party of the progress of the application for the approvals or consents from the Approval Authorities in relation to the condition that all representations and warranties and other statements of the Investor shall be true and correct Subscription as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically soon as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedpossible.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 2 contracts
Sources: Subscription Agreement (BIT Mining LTD), Subscription Agreement
Conditions. (a) The obligation obligations of the Investor Purchaser to consummate purchase the Closing Purchased Shares shall be subject to the condition that satisfaction, on or before the Closing Date, of each of the following conditions precedent (each of which is for the Purchaser’s exclusive benefit and may be waived by the Purchaser, in whole or in part at its option, and any one or more of which, if not satisfied or waived, will relieve the Purchaser of any obligation under this Agreement):
(a) each of the acts, undertakings, obligations, agreements and covenants of the Vendors and the Targets under this Agreement or under any Closing Document to be performed or complied with on or before the Closing Date shall have been duly performed or complied with in all material respects, and the Purchaser shall have received a certificate of the Vendors addressed to the Purchaser and dated as of the Closing Date confirming same. The acceptance by the Purchaser, in its sole discretion, of a certificate which does not correspond in all respects to the terms of the preceding sentence shall be deemed to constitute a variation or amendment, to the extent therein described, of the provisions of this Agreement or any Closing Document;
(b) each of the representations and warranties and other statements made in favour of the Company Purchaser pursuant to this Agreement shall be true true, complete and correct as of the date of this Agreement and the date of the Closing in all material respects (except that those representations and warranties that by their terms speak specifically which are qualified as of to material, materiality, Material Adverse Change or similar expressions, or are subject to the date of this Agreement same or some other date similar type exceptions, shall be true true, complete and correct in all respects) on the Closing Date as if made on and as of such date), except for such failures and the Purchaser shall have received a certificate of the Vendors addressed to the Purchaser and dated as of the Closing Date confirming same. The acceptance by the Purchaser, in its sole discretion, of a certificate which does not correspond in all respects to the terms of the preceding sentence shall be deemed to be so true and correct a waiver of any representation or warranty contained in this Agreement to the extent therein described;
(without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinc) as would there shall not havehave occurred, individually in the aggregatejudgment of the Purchaser, acting reasonably, a Material Adverse Effect; Change since the condition execution of this Agreement;
(d) the Purchaser shall be satisfied that the Company no Claim or Threatened Claim shall have performed been taken, made, threatened or instituted, whether or not having the force of Law, and no Law or Order shall have been proposed, enacted, promulgated, issued or applied: (i) to prohibit or impose any limitation or condition on the completion of the transactions contemplated herein or in any Closing Document or the right of the Purchaser to own or exercise full rights of ownership of all of the Purchased Shares; or (ii) which, if the transactions contemplated herein were completed, could reasonably be expected to result in a Material Adverse Change or prevent the Targets from carrying on, in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification respects, the Business as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharespresently carried on;
(2e) the purchase by Purchase shall be satisfied with the Investor results of its due diligence relating to the Targets and the Business;
(f) all Required Third Party Consents shall have been obtained;
(g) the Pre-Closing Reorganization shall have been duly completed to the satisfaction of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Purchaser; and
(3h) the conditions set forth Purchaser shall be satisfied, acting reasonably, that no fact or circumstance identified in Section 10 its confirmatory due diligence of the Branch Purchase AgreementTargets, other than their respective assets and the condition set forth Business would or could result in Section 10.3(e) of a Material Adverse Change or materially and adversely affect, delay or impair the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedtransactions contemplated hereby.
Appears in 2 contracts
Sources: Share Purchase Agreement (Argo Blockchain PLC), Share Purchase Agreement (Argo Blockchain PLC)
Conditions. (a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements following obligations of the Company shall be true satisfied or fulfilled on or prior to the date of each Closing, unless otherwise agreed to in writing by the Placement Agent:
(a) The Company shall have delivered to the Placement Agent, at the Initial Closing, (i) a currently-dated long-form good standing certificate or telegram from the Secretary of State where the Company and correct each Subsidiary is incorporated and each other jurisdiction in which the Company and any of the Subsidiaries is qualified to do business as a foreign corporation; (ii) the certificate of incorporation of the Company and each Subsidiary, as currently in effect, certified by the Secretary of State of the state where the Company and each Subsidiary is incorporated; (iii) a certified copy of the filed Certificate of Designation setting forth the designation, preference rights, qualifications, limitations or restrictions of the Preferred Stock; (iv) by-laws of the Company certified by the secretary of the Company; and (v) certified resolutions of the Board of Directors of the Company approving this Agreement, the execution of the Preferred Stock and the Placement Agent Warrants, the registration of the Registerable Securities and the other transactions contemplated by the Preferred Stock.
(b) There shall have occurred no material adverse event affecting the Company or the Subsidiaries or any of their respective businesses, assets, prospects or the Company's securities since the date of this Agreement and Agreement.
(c) No litigation or administrative proceeding shall have been threatened or commenced against the date Company or any of the Closing Subsidiaries which (except those representations and warranties that by their terms speak specifically as i) seeks to enjoin or otherwise prohibit or restrict the consummation of the date transactions contemplated by this Agreement or (ii) if adversely determined, would have a Material Adverse Effect or have a material adverse effect on the Company's securities.
(d) The Company shall have delivered to the Placement Agent a certificate of its principal executive and financial officers as to the matters set forth in Paragraphs 8(a), (b) and (c) of this Agreement and to the further effect that (i) neither the Company nor any Subsidiary is in default, in any respect, under any note, loan agreement, security agreement, mortgage, deed of trust, indenture, contract, alliance agreement, lease, license, joint venture agreement, agreement or some other date shall be true and correct as of such date)instrument to which it is a party, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually disclosed in the aggregate, Financial Statements or the Memorandum and except where such default has not and will not have a Material Adverse Effect; (ii) the Company's representations and warranties contained in this Agreement are true and correct in all respects on such date with the same force and effect as if made on such date; (iii) there has been no amendment or changes to the Company's or Subsidiaries' certificates of incorporation or by-laws or authorizing resolutions from those delivered pursuant to Paragraph 8(a) of this Agreement; and (iv) no event has occurred which, with or without the lapse of time or giving of notice, or both, would constitute a breach or default thereof by the Company or any Subsidiary or would cause acceleration of any obligation of the Company or any Subsidiary, or could adversely affect the business, operations, financial condition that or prospects of the Company.
(e) The Placement Agent shall have received the opinion of Friedlob ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Tourillott, LLC, counsel for the Company, dated as of the closing date in form and substance reasonably satisfactory to the Placement Agent and its counsel.
(f) The Company shall have performed prepared and filed or delivered to counsel for filing with the SEC and any states in all material respects all which such filing is required, a Form D relating to the sale of its obligations hereunder theretofore to be performed the Preferred Stock and such other documents and certificates as are required.
(without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and g) Subscriptions for at least the condition that since the date hereof no Material Adverse Effect Minimum Amount of Preferred Stock shall have occurred been accepted by the Company.
(h) In addition to the right of the Placement Agent to terminate this Agreement and be continuing with respect to either (x) the Company or (y) the Company after giving effect to not consummate the transactions contemplated by this Agreement as a result of the Branch Purchase Agreement.
(b) The obligation failure of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all comply with any of its obligations hereunder theretofore set forth in this Agreement, this Agreement may be terminated by the Placement Agent by written notice to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject at any time prior to the following additional conditions:
(1) no provision of any applicable law or regulation and no Initial Closing if, in the Placement Agent's sole judgment, injunction(i) the Company and/or Subsidiaries shall have sustained a loss that is material to the Company or its Subsidiaries, taken as a whole, whether or not insured, by reason of fire, earthquake, flood, accident or other calamity, or from any labor dispute or court or government action, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulatordecree; (ii) require the Investor trading in securities on any exchange or any of its affiliates to become a bank holding company; system shall have been suspended or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation limited either generally or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement specifically with respect to the Company’s acceptance 's Common Stock; (iii) material governmental restrictions have been imposed on trading in securities generally or specifically with respect to the Company's Common Stock (not in force and effect on the date of the proceeds of the Acceptable Financing this Agreement; (as defined in the Branch Purchase Agreement), iv) a banking moratorium shall have been satisfied declared by Federal or waivedNew York State authorities; (v) an outbreak of major international hostilities or other national or international calamity shall have occurred; (vi) the Congress of the United States or any state legislative body shall have passed or taken any action or measure, or such bodies or any governmental body or any authoritative accounting institute, or board, or any governmental executive shall have adopted any orders, rules or regulations, which the Placement Agent reasonably believes is likely to have a material adverse effect on the business, financial condition or financial statements of the Company or the market for the Preferred Stock; (vii) the Common Stock shall have been delisted from NASDAQ or the Company shall have received notice from NASDAQ advising the Company of its intention to have the Common Stock delisted from NASDAQ, whether conditional or otherwise, or the Company shall fail to meet the requirements for continued listing on NASDAQ; or (viii) there shall have been, in the Placement Agent's judgment, a material decline in the Dow ▇▇▇▇▇ Industrial Index or the market price of the Common Stock at any time subsequent to the date of this Agreement.
Appears in 2 contracts
Sources: Preferred Stock Placement Agreement (Williams Controls Inc), Preferred Stock Placement Agreement (Williams Controls Inc)
Conditions. (a) The obligation of the Investor In addition to consummate the Closing shall be being subject to the condition that all representations and warranties and other statements satisfaction of the Company conditions contained in Sections 5.1 and 5.2, the obligation of an Issuing Bank to issue any Letter of Credit is subject to the satisfaction in full of the following conditions:
(A) the Borrower shall have delivered to the applicable Issuing Bank (at such times and in such manner as such Issuing Bank may reasonably prescribe) and the Administrative Agent, a request for issuance of such Letter of Credit in substantially the form of Exhibit C hereto (each such request a "REQUEST FOR LETTER OF CREDIT"), duly executed applications for such Letter of Credit, and such other documents, instructions and agreements as may be required pursuant to the terms thereof (all such applications, documents, instructions, and agreements being referred to herein as the "L/C DOCUMENTS"), and the proposed Letter of Credit shall be true reasonably satisfactory to such Issuing Bank as to form and correct content; and
(B) as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement issuance no order, judgment or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision decree of any court, arbitrator or Governmental Authority shall purport by its terms to enjoin or restrain the applicable law Issuing Bank from issuing such Letter of Credit and no law, rule or regulation applicable to such Issuing Bank and no judgment, injunction, order request or decree directive (whether or not having the force of law) from a Governmental Authority with jurisdiction over such Issuing Bank shall prohibit or request that such Issuing Bank refrain from the transactions contemplated hereby issuance of Letters of Credit generally or prohibit the Investor from owning or voting any issuance of the Investor Shares;
(2) the purchase by the Investor that Letter of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Credit; and
(3C) in the case of LaSalle acting in its capacity as Issuing Bank, the Borrower shall have duly executed and delivered to LaSalle the L/C Master Agreement and the Borrower shall be in compliance therewith; provided that in the event that the terms and conditions set forth in Section 10 of the Branch Purchase L/C Master Agreement (or any similar agreement entered into with any other Issuing Bank) shall conflict with the terms and conditions of this Agreement, other than the condition set forth in Section 10.3(e) terms and conditions of the Branch Purchase this Agreement with respect shall govern and control to the Company’s acceptance extent of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedsuch conflict.
Appears in 2 contracts
Sources: Credit Agreement (Alion Science & Technology Corp), Credit Agreement (Alion Science & Technology Corp)
Conditions. (a) The obligation obligations of the Investor to consummate the Closing Underwriters hereunder shall be subject subject, in their discretion, to the condition that all representations and warranties and other statements of the Company shall be true and correct the Selling Noteholder herein are, at and as of the date Time of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be Delivery, true and correct as of such date)correct, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor , and the Company to consummate the Closing shall be subject to the following additional conditions:
(1a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 6(a) hereof; the final term sheet contemplated by Section 6(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filings by Rule 433; no provision stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinions (a form of each such opinion is attached as ▇▇▇▇▇ ▇▇(b) hereto), dated the Time of Delivery, in form and substance satisfactory to you, with respect to the matters covered in paragraphs (i), (ii), (iii), (iv), (vi) and (xii)) of subsection (c) below as well as such other related matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) King & Spalding LLP, counsel for the Company, shall have furnished to you their written opinion (a draft of such opinion is attached as ▇▇▇▇▇ ▇▇(c) hereto), dated the Time of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing and in good standing under the laws of the state of Delaware; the Company has the corporate power to own and lease its properties and conduct its business as described in the Pricing Prospectus;
(ii) All of the outstanding shares of Common Stock have been duly authorized and are validly issued, fully paid and nonassessable;
(iii) This Agreement has been duly authorized, executed and delivered by the Company;
(iv) The issuance, execution and delivery of the Securities have been duly authorized by the Company; the Securities, when executed and delivered by the Company and duly authenticated in accordance with the terms of the Indenture and delivered to and paid for by Sprint Nextel in accordance with the terms of the Separation and Distribution Agreement, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and to the effect of general principles of equity, and will be entitled to the benefits of the Indenture; and the Securities and the Indenture conform in all material respects to the descriptions thereof in the Prospectus;
(v) To the best of such counsel’s knowledge based solely on inquiries of representatives of the Company who have responsibility for litigation and governmental proceedings, and other than as set forth in the Pricing Prospectus, such counsel does not know of any applicable law litigation or regulation any governmental proceedings instituted or threatened against the Company or its consolidated subsidiaries that would be required to be disclosed in the Pricing Prospectus and no judgmentis not so disclosed;
(vi) The Indenture has been duly authorized, injunctionexecuted and delivered by the Company and constitutes a valid and legally binding agreement of the Company, order enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or decree shall prohibit similar laws affecting the rights of creditors generally and to the effect of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(vii) The issuance of the Securities by the Company and the execution, delivery and performance of this Agreement and the Indenture by the Company and the consummation of the transactions contemplated hereby by this Agreement and the Indenture (a) will not breach or prohibit result in a default under or result in the Investor from owning creation or voting imposition of any lien upon any property of the Company or any Subsidiary pursuant to any agreement or instrument filed as an exhibit to the Registration Statement, (b) will not result in a violation of the provisions of the certificate of incorporation or by-laws of the Company and (c) will not result in a violation of any federal or New York statute or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York statute or the Delaware General Corporation Law or any order known to such counsel by any court or governmental agency or body having jurisdiction over the Company or any Subsidiary or any of the Investor Sharestheir respective properties, except that it is understood that no opinion is given in this paragraph (vi) with respect to any state securities law or any rule or regulation issued pursuant to any state securities law;
(viii) No consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law is required for the issuance and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement or the Indenture, except (1) such as have been obtained and (2) such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Investor Underwriters;
(ix) The statements set forth in the Prospectus under the caption “Description of the Investor Shares shall Notes” and “Agreements with Sprint Nextel,” insofar as such statements summarize the legal matters, agreements or documents described therein, are accurate in all material respects;
(x) The statements set forth in the Prospectus under the caption “Material United States Federal Income Tax Considerations,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and regulations or legal conclusions with respect thereto, are accurate summaries of the matters set forth therein in all material respects;
(xi) The Company is not and, after giving effect to the offering and sale of the Securities and the Spin-Off, will not be an “investment company”, as such term is defined in the Investment Company Act;
(xii) The Registration Statement, as of its effective date, and the Prospectus, as of its date, complied as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder, except that such counsel expresses no opinion with respect to the financial statements and notes thereto, the financial statement schedules and notes thereto and the other financial data included therein or omitted therefrom or the Statement of Eligibility on Form T-1; and although they are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package or the Prospectus, except to the extent set forth in paragraphs (ix) and (x) above, on the basis of the information that was developed in the course of the performance of the services provided by such counsel, nothing has come to such counsel’s attention that causes them to believe that: (i) require the Investor or any Registration Statement, as of its affiliates effective date and as of the date of this Agreement, contained an untrue statement of a material fact or omitted to file a prior notice under state any material fact required to be stated therein or necessary to make the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulatorstatements therein not misleading; (ii) require the Investor Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of its affiliates to become a bank holding companythe circumstances under which they were made, not misleading; or (iii) cause the InvestorProspectus, together as of its date and as of the Time of Delivery, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that, with respect to clauses (i), (ii) and (iii) above, such counsel expresses no belief with respect to the financial statements and notes thereto, the financial statement schedules and notes thereto and the other financial data included therein or omitted therefrom or the Statement of Eligibility on Form T-1; and such counsel does not know of any documents that are required to be filed as exhibits to the Registration Statement and are not so filed or of any documents that are required to be summarized in the Prospectus which are not so summarized;
(d) ▇▇▇▇▇ Day, counsel for the Selling Noteholder shall have furnished to you their written opinion (a draft of such opinion is attached as ▇▇▇▇▇ ▇▇(d) hereto), dated the Time of Delivery, in form and substance satisfactory to you, to the effect that:
(i) This Agreement has been authorized by all necessary corporate action of, and executed and delivered by, the Selling Noteholder;
(ii) The Exchange Agreement has been authorized by all necessary corporate action of, and executed and delivered by, the Selling Noteholder;
(iii) The (i) execution, delivery and performance of (A) this Agreement by the Selling Noteholder and (B) the Exchange Agreement by the Selling Noteholder, (ii) sale of the Securities by the Selling Noteholder and (iii) compliance with the terms and provisions thereof by the Selling Noteholder will not violate any law or regulation known to such counsel to be generally applicable to transactions of this type, or any order or decree of any court, arbitrator or governmental agency that is binding upon the Selling Noteholder or its property or violate or result in a default under any of the terms and provisions of the certificate of incorporation or bylaws of the Selling Noteholder or any agreement to which the Selling Noteholder is a party or bound (the opinion being limited (i) to those orders, decrees and agreements identified on exhibits to the opinion, and (ii) in that counsel expresses no opinion with respect to any violation (a) not readily ascertainable from the face of any such order, decree or agreement, (b) arising under or based upon any cross default provision insofar as it relates to a default under an agreement not identified on the exhibits to the opinion, or (c) arising as a result of any violation of any agreement or covenant by failure to comply with any other person whose securities financial or numerical requirement requiring computation);
(iv) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance of this Agreement or the Exchange Agreement by the Selling Noteholder, or in connection with the sale of the Securities by the Selling Noteholder to the Underwriters, except as may be required under (1) state securities or Blue Sky laws or (2) the Act, the Exchange Act or the Trust Indenture Act;
(v) Upon payment by the Underwriters for the Securities to be sold by the Selling Noteholder as provided in this Agreement, delivery (within the meaning of Section 8-301 of the Uniform Commercial Code, as in effect in the State of New York on the date hereof) ( the “UCC”)) of such Securities, as directed by the Underwriters, to, and receipt by, Cede & Co. (“Cede”) or such other nominee in the State of New York as may be designated by The Depository Trust Company would be aggregated (“DTC”), continuing registration of such Securities in accordance with the InvestorCompany’s certificate of incorporation, bylaws and applicable law on the Company’s registry in the name of Cede or such other nominee and DTC’s indicating by book entry that the Securities have been credited to the Underwriters’ “securities accounts” (as defined in Section 8-501(a) of the Company UCC) maintained by DTC for purposes the Underwriters in accordance with Section 8-501 of the UCC, (A) DTC will be a “protected purchaser” of such Securities within the meaning of Section 8-303 of the UCC, (B) the Underwriters will acquire a “security entitlement” (as defined in Section 8-102 of the UCC) in respect of such Securities under Section 8-501 of the UCC and (C) no action based on any bank regulation or law“adverse claim” (as defined in Section 8-102 of the UCC) to such Securities may be asserted against the Underwriters with respect to such security entitlement within the meaning of section 8-502 of the UCC.
(e) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special Delaware counsel for the Selling Noteholder shall have furnished to you their written opinion (a draft of which is attached as ▇▇▇▇▇ ▇▇(e) hereto), dated the Time of Delivery, in form and substance satisfactory to you, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by effect that the Investor Exchange Agreement constitutes a valid and such other persons) would represent more than 9.9% of any class of voting securities binding obligation of the Company outstanding on Selling Noteholder, enforceable against the Selling Noteholder in accordance with its terms;
(f) On the date of the Closing (after giving effect Prospectus at a time prior to the purchase execution of this Agreement, at 9:30 a.m. New York City time on the Investor Shares contemplated hereby); and
(3) effective date of any post-effective amendment to the conditions Registration Statement filed subsequent to the date of this Agreement and also at the Time of Delivery, KPMG LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Section 10 Annex I hereto (the executed copy of the Branch Purchase Agreementletter delivered prior to the execution of this Agreement is attached as Annex I(a) hereto and a draft of the form of bring-down letter to be delivered on the effective date of any post-effective amendment to the Registration Statement and as of the Time of Delivery is attached as ▇▇▇▇▇ ▇(b) hereto);
(i) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Disclosure Package any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Disclosure Package, and (ii) since the respective dates as of which information is given in the Pricing Disclosure Package there shall not have been any change in the capital stock (other than (i) issuances of capital stock upon exercise of options and settlement of restricted stock units and (ii) grants of stock options, restricted stock, restricted stock units and other equity-based awards and equity-based compensation) or change in long-term debt of the condition Company or any of its Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its Subsidiaries, otherwise than as set forth or contemplated in Section 10.3(ethe Pricing Disclosure Package, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Branch Purchase Agreement with respect to Securities on the Company’s acceptance of the proceeds of the Acceptable Financing (as defined terms and in the Branch Purchase Agreement), manner contemplated in the Pricing Disclosure Package;
(h) On or after the Applicable Time (i) no downgrading shall have been satisfied or waived.occurred in the rating accorded the Co
Appears in 2 contracts
Sources: Underwriting Agreement (Embarq CORP), Underwriting Agreement (Embarq CORP)
Conditions. (a) The obligation obligations of the Investor Debt Holders to consummate exchange MMC Debt Obligations for Shares at the Closing shall be subject to the condition that all satisfaction (or waiver) of the following conditions:
(i) the Private Letter Ruling (as defined in the Form of Separation and Distribution Agreement filed as Exhibit 10.3 to the Registration Statement) shall remain in full force and effect and shall not have been revoked in whole or in part as of the applicable Closing Date;
(ii) no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, or other legal restraint or prohibition shall be in effect preventing the transactions contemplated to occur at the Closing;
(iii) (A) the representations and warranties and other statements of the Company MMC in this Agreement shall be true and correct in all respects on and as of the date of this Agreement Closing Date, with the same effect as if made on the applicable Closing Date, and (B) MMC shall have complied with all the date of agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the applicable Closing Date;
(except those iv) (A) the representations and warranties that by their terms speak specifically as of the date of MMI in this Agreement or some other date shall be true and correct in all respects on and as of such date)the applicable Closing Date, except for such failures to be so true with the same effect as if made on the applicable Closing Date, and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinB) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company MMI shall have performed in complied with all material respects the agreements and satisfied all of the conditions on its obligations hereunder theretofore part to be performed or satisfied at or prior to the applicable Closing Date;
(without giving v) the Underwriting Agreement shall have been duly executed and delivered and shall remain in full force and effect and the conditions to any qualification the obligations of the Underwriters to purchase and pay for the applicable Shares as set forth in the Underwriting Agreement shall have been satisfied or waived (other than those conditions that by their nature cannot be satisfied prior to materiality or Material Adverse Effect contained thereinthe applicable closing pursuant to the Underwriting Agreement); and the condition that since the date hereof no Material Adverse Effect and
(vi) MMC shall have occurred furnished to each Debt Holder a properly completed and be continuing with respect to either executed certification of non-foreign status substantially in the form set forth in Treasury Regulations Section 1.1445-2(b)(2)(iv). In the event that any of the conditions set forth in this clause (xa) the Company shall not have been fulfilled (or (y) the Company after giving effect to the transactions contemplated waived by the Branch Purchase AgreementDebt Holders) on the Closing Date, this Agreement may be terminated by the Debt Holders by delivering a written notice of termination to MMC and MMI.
(b) The obligation obligations of the Company MMC to consummate exchange Shares for MMC Debt Obligations at the Closing shall be subject to the condition that all satisfaction (or waiver) of the following conditions:
(i) (A) the representations and warranties and other statements of the Investor each Debt Holder in this Agreement shall be true and correct in all respects on and as of the date of this Agreement applicable Closing Date, with the same effect as if made on the applicable Closing Date, and (B) each Debt Holder shall have complied with all the date of agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the applicable Closing Date;
(except those representations ii) the Private Letter Ruling shall remain in full force and warranties that by their terms speak specifically effect and shall not have been revoked in whole or in part as of the date applicable Closing Date;
(iii) no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any federal, state, local or foreign government or any court of this Agreement competent jurisdiction, administrative agency or some commission or other date governmental authority or instrumentality, domestic or foreign, or other legal restraint or prohibition shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit in effect preventing the transactions contemplated hereby or prohibit to occur at the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Closing; and
(3iv) the Underwriting Agreement shall have been duly executed and delivered and shall remain in full force and effect and the conditions to the obligations of the Underwriters to purchase and pay for the applicable Shares as set forth in the Underwriting Agreement shall have been satisfied or waived (other than those conditions that by their nature cannot be satisfied prior to the applicable closing pursuant to the Underwriting Agreement). In the event that any of the conditions set forth in Section 10 this clause (b) shall not have been fulfilled (or waived by MMC) on the Closing Date, this Agreement may be terminated by MMC by delivering a written notice of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect termination to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedDebt Holders and MMI.
Appears in 2 contracts
Sources: Debt for Equity Exchange Agreement (Marcus & Millichap, Inc.), Debt for Equity Exchange Agreement (Marcus & Millichap, Inc.)
Conditions. (a) The obligation obligations of the Investor Company and the Backstop Purchaser to consummate the Closing transactions contemplated hereby shall be subject to the condition that all satisfaction prior to the Closing of each of the following conditions (which may be waived in whole or in part by the Company or the Backstop Purchaser, as the case may be, in its or their sole discretion, except as set forth in subsection (b) below):
(i) The Registration Statement shall have been declared effective by the SEC and shall continue to be effective and no stop order shall have been entered by the SEC with respect thereto, and no proceedings therefore will have been initiated or, to the knowledge of the Company, threatened by the SEC, and any request on the part of the SEC for additional information will have been complied with.
(ii) The representations and warranties of each party in Sections 3 and other statements 4 are true and correct in all material respects as of the Company Closing Date, as if made on such date (except for representations and warranties made as of a specified date, which shall be true and correct in all material respects as of such specified date), nor shall there have occurred any breach of any covenant of the Company set forth in Section 5 hereof.
(iii) The Rights Offering shall have been conducted in all material respects in accordance with this Agreement.
(iv) All material governmental and third-party notifications, filings, consents, waivers, and approvals required for the consummation of the transactions contemplated by this Agreement, including the Rights Offering, shall have been made or received.
(v) No action shall have been taken, no statute, rule, regulation, or order shall have been enacted, adopted, or issued by any federal, state, or foreign governmental or regulatory authority, and no judgment, injunction, decree, or order of any federal, state, or foreign court shall have been issued that, in each case, prohibits the implementation of the Rights Offering, and the issuance and sale of Common Stock in the Rights Offering, or materially impairs the benefit of implementation thereof, and no action or proceeding by or before any federal, state, or foreign governmental or regulatory authority shall be pending or threatened wherein an adverse judgment, decree, or order would be reasonably likely to result in the prohibition of or material impairment of the benefits of the implementation of the Rights Offering and the issuance and sale of Common Stock in the Rights Offering.
(vi) Since the date of this Agreement and the date of the Closing (except those representations and warranties Agreement, there shall not have been any material adverse effect or any effect that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not havewould, individually or in the aggregate, a Material Adverse Effect; reasonably be expected to materially and adversely affect the condition that ability of the Company or the Backstop Purchaser, as the case may be, to perform its or their obligations under this Agreement or consummate the transactions contemplated hereby on a timely basis or to materially and adversely affect the business, assets or financial condition of the Company.
(vii) As of the Closing Date, trading in the Common Stock shall not have been suspended by the SEC.
(viii) As of the Closing Date, the Common Stock shall be quoted on the OTCQX Best Market (or a national securities exchange) and quotations as to its price shall not be blocked.
(ix) The Backstop Purchaser shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing received a legal opinion from ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP with respect to either customary matters in a form satisfactory to the Backstop Purchaser in its reasonable discretion relating to the due authorization of the issuance of the Rights and the shares of Common Stock in the Rights Offering, the due authorization of this Agreement and such other matters as the Backstop Purchaser shall reasonably request.
(x) The Refinancing Condition shall have been satisfied.
(xi) The Company shall enter into the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Registration Rights Agreement.
(b) The obligation of Notwithstanding the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgmentforegoing, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of (ii) and (vi) above (x) as they relate to the Branch Purchase AgreementBackstop Purchaser, other than may only be waived by the condition set forth in Section 10.3(eCompany, and (y) of the Branch Purchase Agreement with respect as they relate to the Company’s acceptance of , may only be waived by the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedBackstop Purchaser.
Appears in 2 contracts
Sources: Backstop Agreement (Williams Industrial Services Group Inc.), Backstop Agreement (Williams Industrial Services Group Inc.)
Conditions. 4.1 Conditions to the Obligations of Investor The obligations of Investor to complete the transactions contemplated by this Agreement are subject to the satisfaction, prior to the Closing Date, of the following conditions. The parties acknowledge and agree that each of the following conditions is included for the exclusive benefit of Investor and may be waived by Investor in whole or in part without prejudice to its right to rely on any other conditions:
(a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company Corporation set out in the Convertible Debentures shall be true and correct as in all material respects on the Closing Date and the Corporation shall have delivered to Investor at the Time of Closing certificates dated the Closing Date, duly executed by the senior officers of the date Corporation reasonably acceptable to Investor, to such effect. The receipt of such certificates and the closing of the transactions contemplated by this Agreement shall not be nor be deemed to be a waiver of the representations and warranties contained in the Convertible Debentures, which representations and warranties shall continue in full force and effect for the benefit of Investor as provided in the Convertible Debentures;
(b) all of the terms, covenants, obligations and conditions of this Agreement and the date Convertible Debentures to be complied with or performed by the Corporation on or before the Closing Date shall have been complied with or performed in all material respects, and the Corporation shall have delivered to Investor at the Closing certificates dated the Closing Date, duly executed by the senior officers of the Closing Corporation reasonably acceptable to Investor, to such effect;
(except those representations and warranties that c) no action, suit or proceeding shall be pending or threatened by their terms speak specifically as any Authority or any other Person to restrain or prohibit the completion of the date of 7 - 7 - transactions contemplated by this Agreement or some to prevent or restrain the Corporation, in any material respect, from carrying on its business as presently carried on;
(d) all actions, proceedings, instruments, documents and all other date legal matters relating to the subscriptions contemplated by this Agreement shall be true have been approved as to form and correct as legality to the satisfaction of such date)Investor's outside counsel, except for such failures acting reasonably, and all instruments and documents to be so true delivered by the Corporation pursuant to this Agreement prior to or on the Closing Date shall have been delivered prior to or on the Closing Date; without limiting the generality of the foregoing, the Corporation shall duly authorize the execution and correct delivery of the Convertible Debentures and the performance of its obligations thereunder and provide documentation evidencing same to Investor, and, without notice or any action by Investor, the Corporation shall prepare and file, as required, any amendments to its constating documents and by-laws necessitated by the execution and delivery of the Convertible Debentures and the performance of the Corporation's obligations thereunder;
(without giving effect e) there shall have been no change, which has had or could reasonably be expected to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; Effect (as defined in the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that Convertible Debentures) since the date hereof no Material Adverse Effect of the Audited Financial Statements (as defined in the Convertible Debentures);
(f) the Board of Directors of the Corporation shall have occurred approved the terms of this Agreement and be continuing with respect the consummation of the transactions contemplated hereby, including to either (x) the Company or (y) the Company after giving effect an extent and in a manner sufficient to render inapplicable to the transactions contemplated by this Agreement the Branch Purchase Agreement.provisions of Section 203 of the General Corporation Law of the State of Delaware;
(bg) The obligation the Corporation shall have delivered to Investor at the Closing Date an opinion of the Company Corporation's outside counsel as to consummate such matters as are reasonably requested by Investor's outside counsel, all reasonably satisfactory in form, substance and scope to Investor's outside counsel;
(h) the Closing shall be subject to the condition that all representations Corporation and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of executed and delivered the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Amended Registration Rights Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement)Convertible Debentures) on the 8 - 8 - terms contemplated by the Convertible Debentures and in a form reasonably satisfactory to Investor's outside counsel, and when delivered hereunder such Registration Rights Agreement will be a legal, valid, binding and enforceable obligation of the Corporation except as the same may be limited by creditors rights laws and general principles of equity;
(i) the Corporation shall have filed and delivered to the American Stock Exchange ("AMEX") an additional listing application (with respect to all common shares into which any of the Convertible Debentures may be converted) in a form and on terms reasonably satisfactory in form, substance and scope to Investor's outside counsel, and shall use its best efforts to ensure that such common shares become listed on AMEX;
(j) the Corporation shall have obtained all waivers, consents and other Approvals of all Authorities and other third Persons (including consent by NHP (such consent and all documentation executed in connection therewith to be in form and substance reasonably satisfactory to Investor and its outside counsel) to the "change in control" (as defined in the NHP Lease) caused by execution of the Convertible Debentures and the completion of the transactions contemplated thereby) required to complete the transactions contemplated by this Agreement (and shall have provided evidence in form and substance satisfactory to Investor, acting reasonably, that all such waivers, consents and other Approvals have been satisfied or waivedobtained).
Appears in 2 contracts
Sources: Purchase Agreement (Balanced Care Corp), Purchase Agreement (Balanced Care Corp)
Conditions. (a) 5.1 The obligation agreement of the Investor Subscriber to consummate subscribe for the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing Warrants is conditional on:
(except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (xi) the Company or delivering evidence satisfactory to the Subscriber of: - approval of the Transaction by the Company's authorised corporate bodies; and - the capacity and authority of each person executing the Agreement on behalf of the Company;
(yii) the Company after giving effect Subscription Price being fully paid by the Subscriber to the transactions contemplated Company by means of set-off against a valid, due and payable receivable (créance certaine, liquide et exigible) under the Branch Purchase Agreement.Arrangement Fee;
(biii) The obligation the Subscription not resulting in a violation of any agreement to which the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements is a party, its articles of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing association, any shareholders’ agreement (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such dateif any); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of , any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharesjudgment to which it is subject;
(2iv) the purchase by Subscriber continuing to be admitted to trading and listed on the Investor Euronext Growth market of Euronext Paris and Nasdaq;
(v) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered into any judgment, decision, decree, injunction or other order which prohibits consummation of the Investor Shares shall not (i) require the Investor Transaction or any of its affiliates to file a prior notice under the Change in Bank Control Actthat seeks, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assumingeffect of, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities restraining or prohibiting consummation of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Transaction; and
(3vi) the conditions set forth in Section 10 Issuer not possessing any Inside Information on any Completion Date.
5.2 The Parties must use their best endeavours (obligation de moyens) to ensure the satisfaction of the Branch Purchase AgreementPositive Conditions at the latest by the Completion Date.
5.3 The Parties agree that all requests and enquiries from any government, governmental agency, court or other than regulatory body concerning the condition set forth Transaction will be dealt with by the Parties in Section 10.3(e) consultation with each other and the Parties must promptly co-operate with, and provide all necessary information and assistance reasonably required by, such government, agency, court or body upon being requested to do so by the other Party.
5.4 If a Positive Condition is not satisfied on the relevant Completion Date at the latest, the rights and obligations of the Branch Purchase Agreement with respect Parties hereunder shall terminate on such date, unless otherwise agreed in writing by the Parties.
5.5 In the event either Party reasonably believes to be in possession of Inside Information on Completion Date, each Party shall notify the other Party in writing thereof, and the Parties shall discuss in good faith a new Completion Date (not being more than twenty (20) Business Days after the initial Completion Date), in which case the provisions of Clauses 5.3 and 5.4 shall apply to Completion as so deferred; provided further that such deferral may occur up to, and including, the Disbursement Date of the Tranche A, of the Tranche B or of the Tranche C as the case may be. To the extent that any Party considers that the information in its possession does not qualify as Inside Information, if the other Party considers that such qualification may not be correct (and the information may therefore contain Inside Information), the provisions of paragraph 4 of the MAR Letter shall apply, it being specified that, in any event, the Subscriber should not be obliged to subscribe to the Company’s acceptance Warrants if it believes to be in possession of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedInside Information.
Appears in 2 contracts
Sources: Subscription Agreement (Cellectis S.A.), Subscription Agreement (Cellectis S.A.)
Conditions. (a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing 4.1 Completion shall be subject to the following additional conditionsconditions being satisfied (or waived in accordance with Clause 4.10):
(a) the Purchaser having received, by the date and time provided in Clause 4.2, confirmation from the CMA that either:
(1i) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any acquisition of the Investor SharesShares pursuant to this Agreement does not constitute a relevant merger situation within the meaning of Part 3 of the Enterprise ▇▇▇ ▇▇▇▇; or
(ii) that there will not be a Phase 2 CMA Reference of the Transaction (“Merger Control Approval”), which such confirmation may be subject to conditions (including conditions which would require of the Purchaser Group to offer remedies or make divestitures), other than where the Purchaser is obliged, as a condition of obtaining such Merger Control Approval, to offer any remedies or divestitures that would give rise to a Divestiture Material Adverse Effect, (the “Merger Control Condition”);
(2b) the purchase by Pre-Sale Property Extraction having occurred prior to Completion (the Investor of “Property Extraction Condition”);
(c) no Material Adverse Effect having occurred during the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on period from the date of the Closing (after giving effect this Agreement to the purchase of Completion Date and which is subsisting on the Investor Shares contemplated hereby)Completion Date; and
(3d) no breach of:
(i) the conditions set forth in Section 10 Warranties having occurred;
(ii) the Completion Warranties having occurred, as if the Completion Warranties were given immediately prior to Completion by reference to the facts and circumstances subsisting at that time (provided that, solely for the purposes of determining whether a breach of the Branch Purchase Completion Warranties has occurred for the purposes of this sub-clause 4.1(d)(ii) only, the contents of the Completion Disclosure Letter shall be disregarded); or
(iii) the obligations of the Vendors under Clause 5.1 and Schedule 3 of this Agreement having occurred prior to Completion, where such breach (or such breaches in aggregate) results in, or would result in, a Material Adverse Effect on the business of the Group as a whole, together, the “Conditions”.
4.2 The Purchaser shall use all reasonable endeavours, at its own cost, to procure that the Merger Control Condition is satisfied as soon as practicable and in any event no later than:
(a) 6.00 pm on 27 April 2015; or
(b) such later time and date as may be agreed in writing by the Vendors and the Purchaser, and shall not, and shall procure that none of its respective Affiliates or Representatives shall, take any action that could reasonably be expected to adversely affect the satisfaction of such Condition.
4.3 As soon as possible after the date of this Agreement, and in any event within 5 Business Days of the date of this Agreement, the Purchaser shall provide the CMA Notification to the CMA.
4.4 In order to satisfy the Merger Control Condition, the parties shall (i) reasonably cooperate in all respects with each other in the preparation of any submission or response required or requested by the CMA in connection with the CMA Notification and/or the Merger Control Condition, (ii) supply to any Authority as promptly as practicable any additional information requested pursuant to any applicable Laws and take all other procedural actions required in order to satisfy the Merger Control Condition, (iii) promptly provide each other with copies of any material written communication received from or sent to the CMA (or written summaries of any material non-written communication) in connection with any proceeding, investigation or inquiry commenced in order to satisfy the Merger Control Condition and (iv) give each other and their respective advisers the opportunity to participate in all meetings and discussions with any Authority in connection with the Merger Control Condition to the extent permitted by the Authority and subject to all applicable Laws including competition laws.
4.5 The Purchaser acknowledges and agrees that it shall use all reasonable endeavours to satisfy the Merger Control Condition and, accordingly, if the Purchaser is required by any competent merger control authority to offer any remedies or divestitures as a condition to obtaining the Merger Control Condition, the Purchaser agrees that it shall offer as a remedy to dispose of the Product(s) which overlaps with any product of the Purchaser Group (the “Relevant Product”) but provided always that the Purchaser shall not be obliged to offer any remedies to the competent merger control authority as a condition of obtaining the Merger Control Approval that would give rise to a Divestiture Material Adverse Effect.
4.6 The Vendors shall procure (i) completion of the Pre-Sale Property Extraction prior to Completion.
4.7 If at any time the Vendors or the Purchaser become aware of any event, circumstance or condition that would be reasonably likely to prevent a Condition being satisfied it shall forthwith inform the other parties.
4.8 Each party shall notify the others promptly upon it becoming aware that any of the Conditions have been satisfied (or waived in accordance with Clause 4.10).
4.9 If the Condition at Clause 4.1(a) is not satisfied (or waived in accordance with Clause 4.10) by the Long-Stop Date, this Agreement shall cease to have effect immediately except for the provisions of Clauses 1, 4.9, 10, 13, 17 and 19 to 27 (in each case inclusive) and any rights or liabilities that have accrued prior to that time.
4.10 The Purchaser may, to such extent as it thinks fit and is legally entitled to do so, waive any of the Conditions (other than the condition set forth Property Extraction Condition) in Section 10.3(e) of the Branch Purchase Agreement with respect whole or in part, by written notice to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedVendors.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Actavis PLC)
Conditions. (a) At Closing, the Company shall deliver to Merr▇▇▇ ▇▇▇c▇ ▇▇▇ or more stock certificates registered in the name of MLI representing the number of Purchase Shares set forth in Section 2 above. 2 The Company's obligation to complete the purchase and sale of the Investor Purchase Shares and deliver such stock certificate(s) to consummate Merr▇▇▇ ▇▇▇c▇ ▇▇ the Closing shall be subject to the condition that all following conditions, any one or more of which may be waived by the Company: (i) receipt by the Company of Federal Funds (or other mutually agreed upon form of payment) in the full amount of the purchase price for the Purchase Shares being purchased hereunder, (ii) the accuracy as of the Closing Date, of the representations and warranties made by Merr▇▇▇ ▇▇▇c▇ ▇▇▇ein and other statements the fulfillment, in all material respects, of those undertakings of Merr▇▇▇ ▇▇▇c▇ ▇▇ be fulfilled prior to the Closing, (iii) execution and delivery of the Swap Agreement, (iv) receipt of an accurate, complete and duly executed original of U.S. Internal Revenue Service Form 1001, certifying that MLI is entitled to receive any payments under this Agreement, the Swap Agreement or as a result of MLI's ownership of Common Shares that may be viewed as interest for U.S. federal income tax purposes without deduction or withholding of U.S. federal income taxes. (v) receipt by the Company shall be of a cross-receipt with respect to the Purchase Shares executed by Merr▇▇▇ ▇▇▇c▇ ▇▇▇ (vi) receipt by the Company of a certificate by an officer or authorized representative of Merr▇▇▇ ▇▇▇c▇ ▇▇ the effect that the representations and warranties of Merr▇▇▇ ▇▇▇c▇ ▇▇▇ forth in Section 5 hereof are true and correct as of the date of this Agreement and the date as of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as Date. Merr▇▇▇ ▇▇▇▇▇'▇ ▇▇▇igation to accept delivery of such date), except stock certificate(s) and to pay for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing Shares evidenced thereby shall be subject to the following additional conditions:
, any one or more of which may be waived by Merr▇▇▇ ▇▇▇c▇: (1▇) no provision of any applicable law or regulation and no judgmentthe accuracy, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any as of the Investor Shares;
(2) Closing Date, of the purchase representations and warranties made by the Investor Company herein and the fulfillment, in all material respects, of those undertakings of the Investor Shares shall not (i) require Company to be fulfilled prior to the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActClosing, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require receipt by Merr▇▇▇ ▇▇▇c▇ ▇▇ all opinions, letters and certificates to be delivered by the Investor or any of its affiliates Company pursuant to become a bank holding company; or this Purchase Agreement, (iii) cause the Investor, together with any other person whose securities execution and delivery of the Company would be aggregated with Swap Agreement, (iv) the Investor’s securities execution and delivery of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities a guarantee issued by the Investor Operating Partnership (the "Guarantee") and such other persons(v) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement receipt by Merr▇▇▇ ▇▇▇c▇ ▇▇ a cross-receipt with respect to the purchase price for the Purchase Shares executed by the Company’s acceptance . The Company has filed with the U.S. Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. 333-38071) for the registration of certain preferred shares of beneficial interest, $.01 par value per share, warrants for purchase of Common Shares and Common Shares under the Securities Act of 1933, as amended (the "Securities Act"), and the offering thereof from time to time in accordance with Rule 415 of the proceeds rules and regulations of the Acceptable Financing Commission under the Securities Act (as defined in the Branch Purchase Agreement"1933 Act Regulations"), shall and the Company has filed such amendment or amendments thereto as may have been satisfied required prior to the execution of this Agreement. Such registration statement, as amended, has been declared effective by the Commission. A prospectus is to be used in connection with the offering and sale of the Shares to MLI pursuant to this Agreement (the "Prospectus"). Such registration statement and the prospectus constituting a part thereof (including, in each case, any information deemed to be a part thereof pursuant to Rule 430A(b) of the 1933 Act Regulations and any prospectus supplement relating to the offering of the Shares to MLI pursuant to Rule 415 of the 1933 Act Regulations (a "Prospectus Supplement")), as from time to time amended or waived.supplemented pursuant to the Securities Act or otherwise, are hereinafter referred to as the "Registration Statement," and the "Prospectus," respectively (both of which shall include any
Appears in 2 contracts
Sources: Purchase Agreement (Crescent Real Estate Equities Co), Purchase Agreement (Crescent Real Estate Equities Co)
Conditions. (a) The obligation If Purchaser has actual knowledge, or should ---------- have actual knowledge by inspection of the Investor Property or of the public records at or before the Closing, that (i) any representation of Seller hereunder is untrue, as of the date represented, or (ii) Seller has failed to consummate the Closing perform, observe or comply with any covenant, agreement or condition to be performed hereunder, Purchaser shall notify Seller of such within five (5) days after discovery by Purchaser. Purchaser's failure to so notify Seller shall be subject deemed to constitute Purchaser's waiver of same as a condition to Closing and otherwise.
(b) In the condition event that all (A) any of Seller's representations and warranties and other statements of the Company shall be made in Section 3.1 are not true and correct as of the date of this Agreement (and for the purposes hereof a representation shall be untrue only if factually untrue and having a material adverse business or legal impact on Purchaser), and (B) Purchaser has actual knowledge, or should have actual knowledge by inspection of the Property or of the public records at or before the Closing that any of Seller's representations referred to in clause (A) of this sentence are untrue, then Purchaser may, as its sole remedy (whether at law or in equity), all other claims for damages or specific performances being hereby expressly waived by Purchaser, elect to terminate this Agreement, and the date sole liability of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date Seller shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect return to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in Purchaser the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the InvestorDeposit, together with any other person whose securities interest accrued thereon, and thereupon, this Agreement shall be null and void and the parties hereto shall be relieved of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for all further obligations and liability under this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to those obligations and liabilities which expressly survive the Company’s acceptance termination of the proceeds of the Acceptable Financing (as defined in the Branch Purchase this Agreement), shall have been satisfied or waived.
Appears in 2 contracts
Sources: Sale Agreement (Sl Green Realty Corp), Agreement of Sale and Purchase (Sl Green Realty Corp)
Conditions. (aA) The obligation obligations of the Purchaser under this Agreement are conditional in all respects upon:
(i) the Purchaser's registration statement (No. 333-95623) filed with the US Securities and Exchange Commission having been declared effective, the IPO Price having exceeded USD 10 per share, the receipt of the net proceeds of the IPO by the Purchaser and the listing of the shares of the Purchaser on the NASDAQ National Market;
(ii) the Investor to consummate Parties having each complied fully with its obligations in Clause 9 and the Closing shall be subject Investor Parties having delivered to the condition that all representations Purchaser a certificate in form and warranties substance satisfactory to the Purchaser, who shall act reasonably, and other statements duly executed by the Investor Parties confirming that, if such be the case, the Investor Parties have each complied fully with its obligations in Clause 9;
(iii) no order or judgement of any court or governmental, statutory or regulatory body having been issued or made prior to Completion, which has the effect of making unlawful or otherwise prohibiting the purchase of the Company by the Purchaser;
(iv) the receipt of a letter in the Agreed Form from BOS indicating that it does not intend to exercise any rights that may be triggered by the transactions contemplated by this Agreement pursuant to a term loan agreement and a working capital letter and documentation relating thereto each dated 27 May, 1999(the "BOS Facilities") notwithstanding Completion and confirming that the BOS Facilities will remain in full force and effect notwithstanding Completion, in all respects on their existing terms;
(v) the Warranties being accurate and not misleading as at the date of this Agreement by reference to the fact and circumstances in existence at the date of this Agreement;
(vi) the Warranties continuing to be accurate in all material respects and not misleading in any material way up to and including the Completion Date and the Warranties being materially accurate and not misleading in any material way when repeated immediately before Completion by reference to the facts and circumstances subsisting at that time and the Obligors (on behalf of themselves) and the Natwest Parties and BOS (on behalf of themselves solely in relation to the Warranties in paragraphs 1 and 2 of Schedule 3) having delivered a certificate in form and substance satisfactory to the Purchaser, who shall act reasonably, and duly executed by the Obligors and the NatWest Parties and BOS confirming that, if such be true the case, the applicable Warranties were accurate and correct not misleading as of at the date of this Agreement and that they have continued to be and are materially accurate and not misleading in any material way;
(vii) no change which in the date Purchaser's reasonable opinion affects adversely the business or assets or condition or the financial or trading position or prospects of any member of the Closing Group in any material way having occurred before the time of Completion;
(except those representations viii) the Investor Parties having delivered a certificate in a form and warranties that by their terms speak specifically as of substance satisfactory to the date of this Agreement or some other date Purchaser, who shall be true and correct as of such date)act reasonably, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition confirming that the Company shall and/or any other relevant member of the Group has served all notices and obtained all consents necessitated by the transactions contemplated by this Agreement in relation to the Assumed Liabilities;
(ix) the receipt by the Purchaser of a certificate from the Investor Parties confirming that they have performed in all material respects complied with all of its their obligations hereunder theretofore to be performed under the Investment Agreement and have no claims against the Company (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); in respect of the Investor Parties other than the Managers)or the Managers under the Investment Agreement and, on payment of the Investor Loans Amount and the condition that since April Interest, no amounts will remain outstanding from any member of the date hereof no Material Adverse Effect shall have occurred and be continuing with respect Group to either the Investor Parties;
(x) the receipt by the Purchaser of confirmation from the Company or that Mr P ▇▇▇▇▇▇▇ has paid up all amounts currently outstanding on his Shares and confirmation from ▇▇▇▇▇▇▇ Limited that it has released its equitable charge over the B Shares of ▇▇▇▇ ▇▇▇▇▇▇▇▇;
(yxi) the Company after giving effect Purchaser having received all necessary approvals in respect of its existing financing facilities in relation to the transactions contemplated by the Branch Purchase this Agreement.
(bB) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements Each of the Investor Parties, BOS and the Purchaser shall be true and correct as (to the extent that it is within their ability to do so) use their respective reasonable endeavours to fulfil or procure the fulfilment of the date of this Agreement conditions set out in sub-clause (A) above and will notify the date of other parties immediately upon the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as satisfaction of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedconditions.
(cC) The obligation of each Purchaser may waive in whole or in part all or any of the conditions set out in sub-clause (A). For the avoidance of doubt, the Investor Parties and BOS expressly acknowledge that the Company Purchaser has sole and absolute discretion to consummate the Closing shall be subject to the following additional conditionsdecide:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require whether or not to consummate, postpone or abandon the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)IPO; and
(3ii) the IPO Price, and the Purchaser shall have no liability to any Investor Party or BOS arising from, relating to, or in connection with any such decision (save as stated in sub-clause 3(G)).
(D) If the conditions set forth out in Section 10 sub-clause (A) are not fulfilled (notwithstanding the required reasonable endeavours in sub-clause (B)) or waived by the Purchaser on or before the Termination Date, then the Purchaser shall be entitled to treat this Agreement as terminated by written notice to the Investor Parties and BOS.
(E) If an event or series of events occurs or first becomes known to the Company after the date hereof but prior to Completion which is reasonably likely to result in the Adjusted Enterprise Value being less than GBP 47,800,000 then NWEP, on behalf of the Branch Purchase AgreementInvestor Parties and BOS, other may give written notice to the Purchaser (such notice to be sent by fax and by same day courier) giving reasons for such belief and delivered to the Purchaser no later than three Business Days before Completion. Unless the Purchaser responds to such notice within two Business Days of receipt, indicating that it wishes to proceed to Completion, this Agreement shall terminate automatically three Business Days after service of such notice by NWEP. If the Purchaser elects to proceed to Completion in accordance with this sub-clause, the Adjustment Amount shall be capped at GBP 5,000,000. NWEP (on behalf of the Investor Parties and BOS), undertakes to notify the Purchaser immediately on its becoming aware of any circumstance which would cause it to serve a notice pursuant to this sub-clause (E).
(F) If the Agreement is terminated then, subject to sub-clauses (G) and (H), the obligations of each party under this Agreement shall automatically terminate PROVIDED that the rights and liabilities of the parties which have accrued prior to termination shall subsist.
(G) If the Agreement is terminated due to the non-fulfilment of the condition set forth in Section 10.3(esub-clause (A)(i) above, the Purchaser will pay to the Sellers an amount equal to 50% of the Branch Purchase reasonable out of pocket expenses incurred by the Sellers in relation to this Agreement with respect up to a maximum amount of GBP 100,000.
(H) The Investor Parties and BOS acknowledge that the Company’s acceptance restrictions contained in Clauses 18 and 19 shall continue to apply after the termination of the proceeds sale and purchase of the Acceptable Financing (as defined Shares under this Agreement without limit in the Branch Purchase Agreement), shall have been satisfied or waivedtime.
Appears in 2 contracts
Sources: Share Purchase Agreement (Ddi Corp), Share Purchase Agreement (Ddi Corp)
Conditions. 5.1 The obligations of the Sellers and the Purchaser to complete the sale and purchase of the Shares are in all respects conditional on the satisfaction (or waiver, as the case may be) of the following matters (the “Conditions”):
(a) The obligation with regard to each of the Investor Project Licences, the approval of the Botswanan Minister of Minerals and Energy to consummate the Closing change in control in the Group brought about by the sale and purchase of the Shares having been obtained, evidenced in writing and not withdrawn, such approval being either unconditional or on conditions that do not have a material adverse effect (the “Botswana CoC Condition”);
(b) the approval of the Transaction by the Competition and Consumer Authority having been obtained, evidenced in writing and not withdrawn, such approval being either unconditional or on conditions that do not have a material adverse effect;
(c) the approval of the Transaction by SAMR, ▇▇ving been obtained, evidenced in writing and not withdrawn;
(d) the requisite majority of relevant shareholders of the Purchaser Guarantor as required under the rules entitled the “Rules (the “Listing Rules”) Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited (the “Stock Exchange”) as published by the Stock Exchange from time to time, shall have approved as a “Major Transaction” (as defined in the Listing Rules) by written shareholders' approval under Rule 14.44 of the Listing Rules, the entry by the Purchaser into this Agreement and the transactions contemplated by this Agreement (the “Shareholder Approval Condition”);
(e) completion by the Purchaser of an NDRC Filing; and
(f) there shall be no Order in effect that prohibits the Sellers and Purchaser completing the sale and purchase of the Shares. For the avoidance of doubt, the Condition in Clause 5.1(d) shall not be waived by any of the Parties for any reason whatsoever.
5.2 The Sellers shall use their best endeavours to procure the fulfilment of the Botswana CoC Condition as soon as possible, and in any event before the Long Stop Date including making all appropriate filings within ten (10) Business Days of this Agreement.
5.3 The Purchaser shall:
(a) subject to Clause 5.6, use its best endeavours to procure the condition fulfilment of the Botswana CoC Condition and Antitrust Conditions as soon as possible, and in any event before the Long Stop Date, including making all appropriate filings within ten (10) Business Days of this Agreement (provided that all representations necessary information and warranties and other statements documents are provided by the Sellers upon request with no unreasonable delay);
(b) use its best endeavours to procure the fulfilment of the Company shall Shareholder Approval Condition as soon as possible, and in any event before the Long Stop Date; and
(c) submit the NDRC Filing to the NDRC as soon as practicable following the date of this Agreement and in any event within ten (10) Business Days of this Agreement.
5.4 Without limiting the generality of Clause 5.3 and Clause 15.4, the Purchaser Guarantor and Purchaser agree to provide or procure the provision of any guarantee in favour of the Government of Botswana in respect of the Group’s obligations under the Project Licences as may be true requested by the Minister of Mineral Resources, Green Technology and correct Energy Security in connection with the satisfaction of the Botswana CoC Condition.
5.5 In respect of the Antitrust Conditions, the Purchaser shall:
(a) prepare and submit any notifications, filings or submissions (or drafts thereof as appropriate in certain jurisdictions) to the applicable Regulatory Authority within ten (10) Business Days from the later of the date of this Agreement and or, in the case of a Regulatory Authority not identified in this Agreement, the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement Regulatory Authority issues a request or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect enquiry relating to the transactions contemplated by the Branch Purchase Agreement.Transaction Documents, with all information required in connection therewith, provided that all necessary information and documents are provided by the Sellers upon request with no unreasonable delay;
(b) The obligation allow the Lead Seller the opportunity to participate in any important/substantial call or meeting with the Regulatory Authority, and within two (2) Business Days inform the Lead Seller of the Company content of any meeting, material conversation and any other communication which takes place between the Purchaser (or its Agents) and the Regulatory Authority in which the Lead Seller did not participate and provide copies or, in the case of non-written communications, a written summary, to consummate the Closing Lead Seller;
(c) procure that the Lead Seller is given a reasonable opportunity to review and comment on drafts of all notifications, filings and submissions before they are submitted to the Regulatory Authority and provide the Lead Seller with final copies of all such notifications, filings and submissions (it being acknowledged that certain such drafts and/or documents may be shared on a confidential basis only with outside counsel) and take account of any reasonable comments that the Lead Seller may have;
(d) use its best endeavours to avoid any declaration of incompleteness by the Regulatory Authority or any other suspension of the periods for clearance;
(e) not, without the prior written consent of the Lead Seller, withdraw any notification, filing or submission made to the Regulatory Authority; and
(f) bear all filing fees (and necessary translation costs) associated with the notification and filings made in order to satisfy the Antitrust Conditions, with each Party bearing its own legal fees.
5.6 In respect of the Conditions in Clause 5.1(a) and 5.1(b), nothing in this Agreement shall require the Purchaser to offer to the relevant Regulatory Authorities or to accept or agree any undertakings, commitments, conditions, modifications or remedies, whether involving divestments or disposals or constraints on prices or other behaviour or otherwise in order to obtain the satisfaction such Conditions (each, a “Regulatory Undertaking”), in each case to the extent that such a Regulatory Undertaking would have a material adverse effect.
5.7 The Sellers and the Purchaser agree that the Purchaser shall be subject primarily responsible for responding to all requests and enquiries from the Regulatory Authority and such requests and enquiries shall be dealt with, in each case, by the Lead Seller and the Purchaser in consultation with each other and the Lead Seller and the Purchaser shall co-operate with each other and the Regulatory Authority, to the condition extent necessary and on a confidential basis, and provide all necessary information and assistance reasonably required by the other or by the Regulatory Authority as soon as reasonably practicable upon being requested to do so, provided that all representations any information provided in relation to a Seller (rather than the Group) shall be provided only to the Regulatory Authority and warranties the Purchaser’s Lawyers on a strictly confidential basis and shall not be provided to the Purchaser.
5.8 Nothing in Clause 5.5 and 5.7 shall require a Party to share information, documents or communications with the other statements if prohibited by a Regulatory Authority from doing so.
5.9 Nothing in Clause 5.5 and 5.7 shall require a Party to disclose to or receive from the other any competitively sensitive information or business secrets. In order to comply with their obligations in Clause 5.5 and 5.7, the Parties will make arrangements for the provision of copies of relevant information, documents and communications to the other Party's external advisors on an external advisor only basis together with redacted versions excluding any such competitively sensitive information or business secrets to the other Party.
5.10 Without prejudice to Clauses 5.2 and 5.3, each of the Investor Purchaser (on the one hand) and the Sellers (on the other hand) will promptly:
(a) co-operate with the other with a view to achieving satisfaction of the Botswana CoC Condition;
(b) provide the other with any necessary information, assistance and documents reasonably required for the purposes of making any submissions and notifications or filings necessary for the purposes of satisfying the Botswana CoC Condition; and
(c) provide any Relevant Authority with any necessary information or documents required by such Relevant Authority for the purposes of satisfying the Botswana CoC Condition.
5.11 Each Seller undertakes to notify the Purchaser (and any other Seller which is not otherwise aware) in writing, and the Purchaser undertakes to notify the Sellers in writing, of anything which will or may prevent any of the Conditions from being satisfied on or before the Long Stop Date or Extended Long Stop Date (if applicable) promptly after it comes to their attention.
5.12 The Purchaser undertakes to notify the Lead Seller as soon as possible on becoming aware that any of the Conditions has been satisfied.
5.13 Each of the Sellers and the Purchaser shall bear and pay its own costs and expenses (including all legal expenses) incurred by it in connection with or incidental to the satisfaction of the Conditions, save that the Purchaser shall be true responsible for any fees, charges or other costs payable in connection with the submissions, notifications or filings referred to in Clause 5.5(a).
5.14 Except with the written consent of the Lead Seller, the Purchaser shall not, and correct shall procure that each member of the Purchaser’s Group shall not, directly or indirectly, either alone or in partnership or jointly or in conjunction with any person, as principal, agent, shareholder or in any other manner whatsoever, contact any Government Entities (including any Government Official thereof) in connection with the Transaction other than any Regulatory Authority.
5.15 The Lead Seller may, at its sole discretion, by written notice to the Purchaser, extend the Long Stop Date by up to three (3) months from the Long Stop Date, and the new Long Stop Date resulting from such extension shall be the “Extended Long Stop Date”.
5.16 If any of the Conditions are not fulfilled or waived on or before the Long Stop Date or the Extended Long Stop Date (if applicable), the Lead Seller may, at its sole discretion, be entitled to treat this Agreement as terminated subject to, and on the basis set out in, Clause 16.2.
5.17 If, at any time on or prior to the Long Stop Date or the Extended Long Stop Date (if applicable), the Lead Seller becomes aware that any Condition cannot be satisfied or fulfilled and it has given notice thereof as contemplated by Clause 5.11, it may thereafter, in its sole discretion, be entitled to treat this Agreement as terminated subject to, and on the basis set out in, Clause 16.2.
5.18 Where the Agreement is terminated by the Lead Seller pursuant to Clause 5.16 or Clause 5.17 solely as a result of any one or more of the Conditions in Clauses 5.1(c), 5.1(d) or 5.1(e) not being satisfied, the Purchaser shall pay the Pro Rata Portion of the Break Fee to each Seller. The Purchaser shall make such payment within thirty (30) Business Days after the later of the date of this Agreement termination and the date the Purchaser receives notice of US dollar-denominated bank account details from all Sellers.
5.19 Payment of the Closing Break Fee in accordance with Clause 5.18 shall be the Sellers’ sole and exclusive remedy for such termination.
5.20 If, at any time on or prior to the Long Stop Date or the Extended Long Stop Date (except those representations and warranties if applicable), the Lead Seller or the Purchaser concludes that there is an Order in effect as contemplated by their terms speak specifically as of Clause 5.1(f), such Party may provide written notice to the date of other Party at any time thereafter, at its sole discretion, terminating this Agreement or some other date shall be true subject to, and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions basis set forth in Section 10 of the Branch Purchase Agreementout in, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedClause 16.2.
Appears in 2 contracts
Sources: Share Sale and Purchase Agreement, Share Sale and Purchase Agreement
Conditions. (a) The Properties Other than Coronado South and Rivermark. Except as provided in Section 5.8(b) and 5.8(c), but notwithstanding any other provision of this Agreement to the contrary, Buyer's obligation of the Investor to consummate the Closing purchase a Property shall be subject to and contingent upon the condition that all representations and warranties and other statements satisfaction or waiver of the following conditions precedent:
(i) The Title Company shall be true being irrevocably and correct as unconditionally committed to issue, upon the sole condition of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all payment of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and regularly scheduled premium, the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing Policy with respect to either (x) such Property, insuring Buyer in the Company or (y) amount of the Company after giving effect Purchase Price allocable to such Property that title to such Property is vested of record in Buyer on the Closing Date subject only to the transactions contemplated by Permitted Exceptions (and, to the Branch Purchase Agreement.extent provided in Section 3.3, any New Matters);
(bii) The obligation Except to the extent such matters are the responsibility of the Company Buyer under the Management Agreement relating to consummate the Coronado South Property (during the time such Management Agreement is in effect), the physical condition of the Property shall be in at least substantially the same physical condition on the Closing shall be Date as on the Effective Date, reasonable wear and tear and loss by casualty or condemnation excepted (subject to the condition that all representations and warranties and other statements provisions of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated herebyArticle VI); and
(3iii) To the conditions extent any of the following would reasonably be expected to materially and adversely affect the Buyer, any Property or Buyer's ownership of such Property after the Closing Date (including but not limited to the ability of Buyer to operate such Property as a multifamily residential property), as of the Closing Date:
(A) There shall be no litigation, administrative action or governmental proceeding pending or threatened in writing by any applicable governmental agency against a Property or the Seller of such Property, which seeks to restrain or prohibit the purchase and sale of the Property; provided, however, that in the event of any such litigation, administrative action or proceeding, Buyer's obligation to purchase such Property shall not terminate if, within ten (10) business days, such action is dismissed or a court order is issued allowing the sale to proceed; and provided, further, that in the event the Closing of such Property proceeds on the basis of such a court order or in the event of any litigation, administrative action or governmental proceeding pending or threatened in writing against a Property or the Seller of such Property which seeks to obtain damages or a discovery order with respect to this Agreement or the purchase and sale of the Property, but which does not seek to restrain or prohibit the purchase and sale of the Property, the Closing of such Property shall proceed and Sellers hereby agree to protect, indemnify and hold harmless Buyer and its subsidiaries, affiliates, partners and constituent entities, and all their respective employees, shareholders, officers and directors, successors and assigns, from and against any Losses (but specifically excluding lost profits) arising from such litigation or administrative action or other governmental proceeding, and such indemnity shall not be limited by the provisions of Section 4.7; and
(B) Except to the extent such proceedings are the subject of Sellers' indemnity as set forth in the second paragraph of Section 10 4.7, no proceedings shall be pending or threatened in writing by the applicable governmental agency which could or would cause the redesignation or other modification of the Branch Purchase Agreementzoning classification of, other than or of any building code requirements applicable to, the condition set forth in Section 10.3(e) Property or any portion thereof which would reasonably be expected to have a material adverse effect on Buyer's ability to own, operate, maintain and repair such Property as a multi-family residential property. The failure of any of the Branch Purchase Agreement foregoing conditions to occur solely with respect to the Company’s acceptance any Property shall not be deemed to be a failure of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedsuch condition with respect to any other Property.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Essex Property Trust Inc), Purchase and Sale Agreement (United Dominion Realty Trust Inc)
Conditions. As a material inducement for the Purchaser to enter into this Agreement, Seller hereby makes the following acknowledgments and representations:
(a) The obligation of That, it owns the Investor to consummate the Closing shall be subject tradenames to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase AgreementProducts described herein.
(b) The obligation execution and delivery of this Agreement, the consummation of the Company transactions herein contemplated and compliance with the terms of the Agreement will not result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, other agreement or instrument to consummate which the Closing shall be subject Seller is a party or by which it or its assets are bound; or to the condition that all representations best of Seller's knowledge, any applicable regulation, judgment, order or decree of any governmental instrumentality or court, domestic or foreign, having jurisdiction over the Seller or its properties;
(c) There are presently no contingent liabilities, factual circumstances, threatened or pending litigation, contractually assumed obligations or unasserted possible claims which might result in a material adverse change with respect to the premises being purchased herein;
(d) The execution, delivery and warranties and other statements of the Investor shall be true and correct as of the date performance of this Agreement and the date transactions contemplated hereby do not require the consent, authority or approval of any other person or entity except such as have been obtained;
(e) To the best of Sellers knowledge and belief no transactions have been entered into either by or on behalf of the Closing Seller, other than in the ordinary course of business nor have any acts been performed which would adversely affect goodwill with respect to the premises being purchased herein;
(except those representations f) The entering into of this Agreement and warranties that the performance thereof has been duly and validly authorized by their terms speak specifically all required corporate action, and does not require any consents, corporate, governmental or otherwise, other than such as have been unconditionally obtained;
(g) The trademark/tradename, documentation, a copy of which is annexed hereto and made a part hereof as Exhibit A accurately reflects the current ownership and registration of the Seller and no additional information is required in order to render the information so provided not misleading;
(h) As of the date of the execution of this written Agreement or some other date no events have occurred nor have any facts been discovered which materially alter in detrimental manner the trademarks of the Seller;
(i) The foregoing representations and warranties do not contain any untrue statements nor do they fail to disclose information necessary in order to render the information provided not misleading;
(j) The foregoing representations and warranties shall also be true true, complete and correct accurate on and as of the Closing Date, as if initially provided on such date); , the Seller hereby covenanting and agreeing to do all things required therefore (including within such obligation the condition that abstinence from any actions, the Investor shall have performed all performance of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting which would render any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Actforegoing representations and warranties inaccurate, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date as of the Closing (after giving effect to the purchase of the Investor Shares contemplated herebyDate); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.;
Appears in 2 contracts
Sources: License Agreement (Hispanica International Delights of America, Inc.), License Agreement (Hispanica International Delights of America, Inc.)
Conditions. (a) Section 6.1 Conditions to Each Party’s Obligation To Effect the Merger. The respective obligation of each party to effect the Investor to consummate the Closing Merger shall be subject to the condition that satisfaction on or prior to the Closing Date of each of the following conditions (any or all of which may be waived by the parties hereto in writing, in whole or in part, to the extent permitted by applicable Law):
(i) This Agreement shall have been adopted and approved by the Company Required Vote and (ii) the Parent Proposal shall have been approved and adopted by the Required Parent Vote;
(b) No statute, rule, order, decree or regulation shall have been enacted or promulgated, and no action shall have been taken, by any Governmental Entity of competent jurisdiction which temporarily, preliminarily or permanently restrains, precludes, enjoins or otherwise prohibits the consummation of the Merger or makes the Merger illegal;
(c) Other than filing the Certificate of Merger in accordance with the DGCL, all authorizations, consents and approvals of all Governmental Entities required to be obtained prior to consummation of the Merger shall have been obtained, except for such authorizations, consents, and approvals the failure of which to be obtained individually or in the aggregate has not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on any party to this Agreement;
(d) The S-4 shall have been declared effective, and no stop order suspending the effectiveness of the S-4 shall be in effect and no proceedings for such purpose shall be pending before or threatened by the SEC; and
(e) The shares of Parent Common Stock issuable to the stockholders of the Company in the Merger and to the holders of the Company Options, Company Stock Awards, and Performance Stock Awards shall have been authorized for listing on Nasdaq, subject to official notice of issuance.
Section 6.2 Conditions to the Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions:
(a) (i) The representations and warranties of Parent set forth in Sections 4.2, 4.3, 4.5(a) and other all statements of the Company set forth in Section 4.27 (relating to Taxes) shall be true and correct in all material respects both at and as of the date of this Agreement and the date at and as of the Closing Date, as if made at and as of such time (except those to the extent expressly made as of an earlier date, in which case as of such date); and (ii) the representations and warranties that by their terms speak specifically of each of Parent set forth in this Agreement (other than the representations and warranties set forth in Sections 4.2, 4.3, 4.5(a) and all statements set forth in Section 4.27 (relating to Taxes)), shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) both at and as of the date of this Agreement or some other date shall be true and correct at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except for where the failure of such failures representations and warranties to be so true and correct (without giving effect to any qualification limitation as to materiality “materiality” or “Material Adverse Effect contained Effect” set forth therein) as individually or in the aggregate has not had, and would not have, individually in the aggregatebe reasonably likely to have or result in, a Material Adverse EffectEffect on Parent. The Company shall have received a certificate signed on behalf of Parent by each of two senior executive officers of Parent to the foregoing effect;
(b) Parent shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time pursuant to the terms of this Agreement, and the Company shall have received a certificate signed on behalf of Parent by the Chief Executive Officer or Chief Financial Officer of Parent to such effect;
(c) There shall not be pending any suit, action or proceeding by any Governmental Entity seeking to restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement;
(d) The Company shall have received the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Company, in form and substance reasonably satisfactory to the Company, on the date on which the S-4 is filed and on the Closing Date, in each case dated as of such respective date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent and the Company, all of which are consistent with the state of facts existing as of the date on which the S-4 is filed and the Effective Time, as applicable, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.2(d), ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP shall have received and may rely upon the certificates and representations referred to in Section 5.13(d);
(e) Parent must have delivered to its counsel, the Company and the Company’s counsel a certificate signed on behalf of Parent by a duly authorized officer of Parent certifying the representations set forth in Section 4.27 and as otherwise reasonably requested by the Company’s or Parent’s tax counsel;
(f) During the period from the date of execution of this Agreement until the Effective Time, there shall not have occurred a Material Adverse Effect on Parent;
(g) On a pro forma basis and after giving effect to all transactions contemplated by this Agreement to occur on the Closing Date, (i) Parent must have funds equal to at least the amount set forth on Section 6.2(g)(i) of the Parent Disclosure Letter available for borrowing under all tests and all provisions set forth in its credit agreements, as in effect on the Closing Date, (ii) no default or event of default would exist under such credit agreements of Parent, and (iii) additional debt in an amount equal to at least the amount set forth on Section 6.2(g)(iii) of the Parent Disclosure Letter would not result in a default or event of default under such credit agreements of Parent and the Company shall have received a certificate of Parent signed on its behalf by its Chief Executive Officer or Chief Financial Officer to such effect; and
(h) To the condition extent that any notes remain outstanding under the Parent Indenture, Parent shall have complied with all the applicable provisions of the Parent’s Indenture so that on a pro forma basis and after giving effect to all transactions contemplated by this Agreement, no default or event of default will have occurred under the Parent Indenture, and the Company shall have received a certificate of Parent signed on its behalf by its Chief Executive Officer or Chief Financial Officer to such effect. In addition, on a pro forma basis and after giving effect to all transactions contemplated by this Agreement, no default or event of default will have occurred under the Company Indenture (excluding any defaults or events of default in existence under the Company Indenture immediately prior to the Effective Time); provided that, to the extent any notes remain outstanding under the Company Indenture, the Company shall have complied with all the applicable provisions of the Company’s Indenture prior to the Effective Time, such that the Company’s failure to comply with the applicable provisions of the Company’s Indenture shall not have caused the default or event of default occurring on a pro forma basis and after giving effect to all transactions contemplated by this Agreement.
Section 6.3 Conditions to Obligations of Parent to Effect the Merger. The obligations of Parent to effect the Merger are further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions:
(a) (i) The representations and warranties of the Company set forth in Sections 3.2, 3.3 and 3.5(a) and all statements set forth in Section 3.26 (relating to Taxes) shall be true and correct in all material respects both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); and (ii) the representations and warranties of the Company set forth in this Agreement (other than the representations and warranties set forth in Sections 3.2, 3.3 and 3.5(a) and the statements set forth in Section 3.26) shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) individually or in the aggregate has not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on the Company. Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect;
(b) The Company shall have performed in all material respects all each of its obligations hereunder theretofore under this Agreement required to be performed (without giving effect by it at or prior to any qualification as the Effective Time pursuant to materiality or Material Adverse Effect contained therein); the terms of this Agreement, and the condition that since the date hereof no Material Adverse Effect Parent shall have occurred and received a certificate signed on behalf of the Company by the Chief Executive Officer or Chief Financial Officer to such effect;
(c) There shall not be continuing with pending any suit, action or proceeding by any Governmental Entity seeking to (i) prohibit or limit in any material respect to either (x) the ownership or operation by the Company or (y) Parent or any of their respective affiliates of a substantial portion of the business or assets of the Company after giving effect and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement or (ii) restrain, preclude, enjoin or prohibit the Branch Purchase Merger or any of the other transactions contemplated by this Agreement.;
(bd) The obligation Parent shall have received the opinion of ▇▇▇▇▇▇▇▇ & Knight, LLP, counsel to Parent, in form and substance reasonably satisfactory to Parent, on the Company to consummate date on which the S-4 is filed and on the Closing shall be subject to Date, in each case dated as of such respective date, rendered on the condition that all basis of facts, representations and warranties assumptions set forth in such opinion and other statements the certificates obtained from officers of Parent and the Investor shall be true and correct Company, all of which are consistent with the state of facts existing as of the date on which the S-4 is filed or the Effective Time, as applicable, to the effect that (i) the Merger will qualify as a reorganization within the meaning of this Agreement and the date Section 368(a) of the Closing Code and (except those representations ii) the Company and warranties that by their terms speak specifically as Parent will each be a “party to the reorganization” within the meaning of Section 368 of the date of Code. In rendering the opinion described in this Agreement or some other date shall be true and correct as of such dateSection 6.3(d); and the condition that the Investor , ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, shall have performed all of its obligations hereunder theretofore received and may rely upon the affiliate letters, certificates and representations referred to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharesin Section 5.13(d);
(2e) the purchase by the Investor The number of the Investor Dissenting Shares shall not exceed 10% of the outstanding shares of Company Common Stock;
(if) require All material consents and approvals of any Person that the Investor Company or Parent or any of their respective Subsidiaries is required to obtain in connection with the consummation of the Merger, including consents and approvals from parties to loans, contracts, leases or other agreements, shall have been obtained, and a copy of each such consent and approval shall have been provided to Parent at or prior to the Closing, except for such consents and approvals the failure of which to be obtained individually or in the aggregate would not be reasonably likely to have or result in a Material Adverse Effect on the Company or Parent, as applicable;
(g) The Company must have delivered to its affiliates to file counsel, Parent and Parent’s counsel a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities certificate signed on behalf of the Company would be aggregated with the Investor’s securities by a duly authorized officer of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have certifying the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities representations set forth in Section 3.26 and as otherwise reasonably requested by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Company’s or Parent’s tax counsel; and
(3h) During the conditions set forth in Section 10 period from the date of execution of this Agreement until the Branch Purchase AgreementEffective Time, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to there shall not have occurred a Material Adverse Effect on the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (KCS Energy Inc), Agreement and Plan of Merger (Petrohawk Energy Corp)
Conditions. The obligation of Seller, on one hand, and Purchaser, on the other hand, to consummate the transaction contemplated hereunder is contingent upon the following:
(a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all Each party’s representations and warranties and other statements of the Company contained herein shall be true and correct in all material respects as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.Date;
(b) The obligation As of the Company to consummate the Closing Date, each party shall have performed its obligations hereunder and all deliveries made at Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.tendered;
(c) The obligation No actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of each of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against the Investor other party that would materially and adversely affect the Company other party’s ability to consummate the Closing perform its obligations under this Agreement shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharesexist;
(2d) No pending or threatened action, suit or proceeding with respect to the purchase other party before or by any court or administrative agency which seeks to restrain or prohibit, or to obtain damages or a discovery order with respect to this Agreement or the Investor consummation of the Investor Shares transaction contemplated hereby shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)exist; and
(3e) Seller will pursue the conditions set forth eviction of all tenants on subject property (if any) and no leases shall survive the Closing (if any). So long as neither party is not in Section 10 default hereunder, if any condition to a party’s obligations to proceed with the Closing hereunder has not been satisfied as of the Branch Purchase AgreementClosing Date, such party may, in its sole discretion, terminate this Agreement by delivering written notice to the other than party on or before the condition set forth Closing Date. Or, such party may elect to close, not withstanding the non-satisfaction of such condition, in Section 10.3(e) which event such party shall be deemed to have waived any such condition. There shall be no liability on the part of the Branch Purchase Agreement with respect other party hereto for breaches of representations and warranties of which the party electing to the Company’s acceptance close had knowledge as of the proceeds of the Acceptable Financing (as defined Closing. Nothing in the Branch Purchase Agreement), foregoing shall relieve a party from any liability it would otherwise have been satisfied or waivedif the failure of such party to satisfy a condition also constitutes a default by such party hereunder.
Appears in 2 contracts
Sources: Purchase and Sales Agreement (Notes Live, Inc.), Purchase and Sale Agreement (Fresh Vine Wine, Inc.)
Conditions. Notwithstanding any other provision, as a condition precedent to each Closing (a) The obligation defined below), all of the Investor following conditions must be satisfied:
1. All documents, instruments and other writings required to consummate be delivered by Company to Purchaser pursuant to any provision of this Agreement or in order to implement and effect the Closing shall be subject transactions contemplated herein have been fully executed and delivered, including without limitation those enumerated in Section II.B above;
2. The Common Stock is listed for and currently trading on the Trading Market, Company is in compliance with all requirements to maintain listing on the Trading Market, and there is no notice of any suspension or delisting with respect to the condition that all representations and warranties and other statements trading of the shares of Common Stock on such Trading Market (other than with respect to such notices and matters as have been publicly disclosed by the Company shall be true and correct as of prior to the date of this Agreement and the date of the Closing (except those Agreement);
3. The representations and warranties that by their terms speak specifically as of the date of Company set forth in this Agreement or some other date shall be are true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all as if made on such date;
4. No material breach or default has occurred under any Transaction Document or any other agreement with Purchaser; 5. Company has the number of its obligations hereunder theretofore duly authorized shares of Common Stock reserved for issuance as required pursuant to be performed (without giving the terms of this Agreement; and
6. There is not then in effect to any qualification as to materiality law, rule or Material Adverse Effect contained therein); and regulation prohibiting or restricting the condition that since transactions contemplated in any Transaction Document, or requiring any consent or approval which will not have been obtained, nor is there any pending or threatened proceeding or investigation which may have the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company effect of prohibiting or (y) the Company after giving effect to adversely affecting any of the transactions contemplated by this Agreement; no statute, rule, regulation, executive order, decree, ruling or injunction will have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits the Branch Purchase transactions contemplated by this Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation , and no judgmentactions, injunctionsuits or proceedings will be in progress, order pending or, to Company's knowledge threatened, by any person other than Purchaser or decree shall any Affiliate of Purchaser, that seek to enjoin or prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Ascent Solar Technologies, Inc.), Securities Purchase Agreement (Ascent Solar Technologies, Inc.)
Conditions. This Agreement is expressly conditioned upon the Commission’s acceptance of all its provisions, without change or condition. If the Commission does not accept this Agreement in its entirety, any party hereto, at its sole option exercised within fifteen (a15) The obligation days of the Investor to consummate the Closing such Commission order, may withdraw from this Agreement, in which event it shall be subject deemed to be null and void and without effect and shall not be relied upon by the condition that all representations and warranties and other statements of Company, Ratepayer Intervenors, Staff, the Company shall be true and correct as of OCA, or any party to this proceeding, or the date Commission, for any purpose. The Commission’s acceptance of this Agreement shall not constitute continuing approval of, or precedent regarding, any particular principle or issue in this proceeding. The discussions that produced this Agreement have been conducted on the explicit understanding that all offers of settlement relating thereto are and shall be confidential, shall be without prejudice to the date position of any party or participant representing any such offer or participating in any such discussion, and are not to be used in connection with any future proceeding or otherwise. The Settling Parties agree that all testimony and supporting documentation should be admitted as full exhibits for purposes of reviewing this Agreement. The Settling Parties’ agreement to admit all testimony without challenge does not constitute agreement by the Settling Parties that the content of the Closing (written testimony is accurate or what weight, if any, should be given to the views of any witness, except those representations and warranties that by their terms speak as may be specifically as provided in this Agreement. The identification of the date resolution of any specific issue in this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would does not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting indicate any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates Settling Parties’ agreement to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company that resolution for purposes of any bank regulation future proceeding, nor does the reference to any other document bind the Settling Parties to the contents of, or recommendations in, that document for purposes of any future proceeding. The Commission’s approval of the recommendations in this Agreement shall not constitute a determination or precedent with regard to any specific adjustments, but rather shall constitute only a determination that the rates resulting from the agreement, and other specific conditions stated in this Agreement are just and reasonable and otherwise consistent with the law. This Agreement may be executed by facsimile and in counterparts, to collectively each of which shall be deemed to ownbe an original, control or have the power to vote securities which (assumingand all of which, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement)taken together, shall have been satisfied or waivedconstitute one agreement binding on all Settling Parties.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
Conditions. (a) The obligation 5.1 This Agreement is expressly conditioned upon the Commission’s acceptance of all its provisions, without change or condition. If the Commission does not accept the Agreement in its entirety, without change or condition, or if the Commission makes any findings that go beyond the scope of this Agreement, and any of the Investor to consummate Settling Parties notify the Closing Commission within five business days of their disagreement with any such changes, conditions, or findings, the Agreement shall be subject deemed to the condition that all representations be withdrawn, in which event it shall be deemed to be null and warranties void and other statements without effect, and shall not constitute any part of the Company record in this proceeding and shall not be true and correct as of the date used for any other purpose.
5.2 The Commission’s approval of this Agreement and shall not constitute continuing approval of, or precedent regarding, any particular principle or issue in this proceeding, but such approval does constitute a determination that the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date are consistent with RSA 378:7, :8, and :28.
5.3 The rights conferred and the obligations imposed on the Settling Parties by this Agreement shall be true binding on or inure to the benefit of any successors in interest or assignees as if such successor or assignee was itself a signatory party. The Settling Parties agree to cooperate in advocating that this Agreement be approved by the Commission in its entirety and correct as without modification.
5.4 The discussions that produced this Agreement have been conducted on the explicit understanding that all offers of settlement relating thereto are and shall be confidential, shall be without prejudice to the position of any party or participant representing any such date)offer or participating in any such discussion, except for such failures and are not to be so true and correct (without giving effect to used in connection with any qualification as to materiality future proceeding or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementotherwise.
(b) The obligation of the Company to consummate the Closing shall 5.5 This Agreement may be subject to the condition that all representations signed electronically, by facsimile, and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of in counterparts, each of the Investor and the Company to consummate the Closing which shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to ownbe an original, control or have the power to vote securities which (assumingand all of which, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement)taken together, shall have been satisfied or waived.constitute one agreement binding on all Settling Parties. <Remainder of page blank>
Appears in 1 contract
Sources: Settlement Agreement
Conditions. (a) 4.1 Conditions to the Obligations of Investor The obligation obligations of the Investor to consummate complete the Closing shall be transactions contemplated by this Agreement are subject to the condition that all representations and warranties and other statements satisfaction, prior to the Closing Date, of the Company shall be true following conditions. The parties acknowledge and correct as agree that each of the date following conditions is included for the exclusive benefit of Investor and may be waived by Investor in whole or in part without prejudice to its right to rely on any other conditions:
(b) all of the terms, covenants, obligations and conditions of this Agreement and the date Convertible Debentures to be complied with or performed by the Corporation on or before the Closing Date shall have been complied with or performed in all material respects, and the Corporation shall have delivered to Investor at the Closing certificates dated the Closing Date, duly executed by the senior officers of the Closing Corporation reasonably acceptable to Investor, to such effect;
(except those representations and warranties that c) no action, suit or proceeding shall be pending or threatened by their terms speak specifically as any Authority or any other Person to restrain or prohibit the completion of the date of transactions contemplated by this Agreement or some to prevent or restrain the Corporation, in any material respect, from carrying on its business as presently carried on;
(d) all actions, proceedings, instruments, documents and all other date legal matters relating to the subscriptions contemplated by this Agreement shall be true have been approved as to form and correct as legality to the satisfaction of such date)Investor's outside counsel, except for such failures acting reasonably, and all instruments and documents to be so true delivered by the Corporation pursuant to this Agreement prior to or on the Closing Date shall have been delivered prior to or on the Closing Date; without limiting the generality of the foregoing, the Corporation shall duly authorize the execution and correct delivery of the Convertible Debentures and the performance of its obligations thereunder and provide documentation evidencing same to Investor, and, without notice or any action by Investor, the Corporation shall prepare and file, as required, any amendments to its constating documents and by-laws necessitated by the execution and delivery of the Convertible Debentures and the performance of the Corporation's obligations thereunder;
(without giving effect e) there shall have been no change, which has had or could reasonably be expected to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; Effect (as defined in the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that Convertible Debentures) since the date hereof no Material Adverse Effect shall have occurred of the Audited Financial Statements (as defined in the Convertible Debentures);
(f) including to an extent and be continuing with respect in a manner sufficient to either (x) the Company or (y) the Company after giving effect render inapplicable to the transactions contemplated by this Agreement the Branch Purchase Agreement.provisions of Section 203 of the General Corporation Law of the State of Delaware;
(bg) The obligation the Corporation shall have delivered to Investor at the Closing Date an opinion of the Company Corporation's outside counsel as to consummate such matters as are reasonably requested by Investor's outside counsel, all reasonably satisfactory in form, substance and scope to Investor's outside counsel;
(h) the Closing shall be subject to the condition that all representations Corporation and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of executed and delivered the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Amended Registration Rights Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement)Convertible Debentures) on the terms contemplated by the Convertible Debentures and in a form reasonably satisfactory to Investor's outside counsel, and when delivered hereunder such Registration Rights Agreement will be a legal, valid, binding and enforceable obligation of the Corporation, except as the same may be limited by creditors rights laws and general principles of equity;
(i) the Corporation shall have filed and delivered to the American Stock Exchange ("AMEX") an additional listing application (with respect to all common shares into which any of the Convertible Debentures may be converted) in a form and on terms reasonably satisfactory in form, substance and scope to Investor's outside counsel, and shall use its best efforts to ensure that such common shares become listed on AMEX;
4.2 Non-Fulfillment of Conditions by the Corporation If any of the conditions in Section 4.1 have not been fulfilled or performed by the Corporation on or prior to the Closing Date, Investor may terminate this Agreement by written notice to the Corporation specifying that such termination is effected pursuant to this Section 4.2. Investor shall then be released from all obligations hereunder. Any of the foregoing conditions, however, may be waived in whole or in part by Investor, without prejudice to its rights of termination in the event of the non-fulfillment of any other condition or conditions any such waiver to be binding on Investor only if given in writing.
4.3 Conditions to the Obligations of the Corporation The obligations of the Corporation to complete the transactions contemplated by this Agreement are subject to the satisfaction, prior to the Closing Date, of the following conditions. The parties acknowledge and agree that each of the following conditions is included for the exclusive benefit of the Corporation and may be waived by the Corporation in whole or in part without prejudice to its right to rely on any other conditions:
(a) all of the terms, covenants and conditions of this Agreement to be complied with or performed by Investor on or before the Closing Date shall have been complied with or performed;
(b) no action, suit or proceeding shall be pending or threatened by any Authority or any other Person (including a party hereto) to restrain or prohibit the completion of the transactions contemplated by this Agreement or to prevent or restrain the Corporation, in any material respect, from carrying on its business as presently carried on;
(c) the closing (whether in escrow or otherwise) of the purchase of additional Convertible Debentures, in an aggregate face amount of U.S.$9,333,333 million on terms substantially similar to the terms hereof, shall have occurred; and
(d) all instruments and documents to be delivered by Investor pursuant to this Agreement prior to or on the Closing Date shall have been satisfied delivered prior to or waivedon the Closing Date.
4.4 Non-Fulfillment of Conditions by Investor If any of the conditions in Section 4.3 have not been fulfilled or performed by Investor on or prior to the Closing Date, the Corporation may terminate this Agreement by written notice to Investor specifying that such termination is effected pursuant to this Section 4.4. The Corporation shall then be released from all obligations hereunder. Any of the foregoing conditions may, however, be waived in whole or in part by the Corporation without prejudice to its rights of termination in the event of the non-fulfillment of any other condition or conditions, any such waiver to be binding on the Corporation only if given in writing.
Appears in 1 contract
Conditions. 5.1 The obligations of Purchaser to consummate the transaction contemplated hereby are subject to the following conditions which, if not fulfilled by Closing or as otherwise provided herein, shall entitle Purchaser, at its option, to terminate the Agreement and receive a refund of the Deposit:
(a) The obligation transactions contemplated under this Agreement to be effected on the Closing Date shall not be restrained or prohibited by any injunction or order or judgment rendered by any court or other governmental agency of competent jurisdiction and no proceeding shall have been instituted and be pending in which any creditor of Seller or any other person seeks to restrain such transactions or otherwise to attach any of the Investor to consummate the Closing shall be subject to the condition Property, provided that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement any such proceeding or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions action contemplated by the Branch Purchase Agreement.this Section 5.1(a) shall not be brought by, through or under Purchaser;
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of Seller has timely complied with its obligations hereunder theretofore to be performed.hereunder; and
(c) All warranties and representations made by Seller herein are and remain truthful in all material respects.
5.2 The obligation obligations of each of the Investor and the Company Seller to consummate the Closing shall be transaction contemplated hereby are subject to the following additional conditionsconditions which, if not fulfilled by Closing or as otherwise provided herein, shall entitle Seller, at its option, to terminate the Agreement:
(1a) no provision The transactions contemplated under this Agreement to be effected on the Closing Date shall not be restrained or prohibited by any injunction or order or judgment rendered by any court or other governmental agency of any applicable law or regulation competent jurisdiction and no judgment, injunction, order proceeding shall have been instituted and be pending in which any creditor of Seller or decree shall prohibit the any other person seeks to restrain such transactions contemplated hereby or prohibit the Investor from owning or voting otherwise to attach any of the Investor SharesProperty, provided that any such proceeding or action contemplated by this Section 5.2(a) shall not be brought by, through or under Seller;
(2b) the purchase Purchaser has timely complied with its obligations hereunder; and 29820032v11
(c) All warranties and representations made by the Investor of the Investor Shares shall not (i) require the Investor or Purchaser herein are and remain truthful in all material respects. If any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth above are not satisfied by the party from whom performance is required (the “Non-Performing Party”), or if such performance is not waived by the other party (the “Performing Party”) on or before the Closing Date, and such other party is not in Section 10 breach of the Branch Purchase its obligations under this Agreement, other than then the condition Performing Party, at its option, may terminate this Contract by giving written notice to the Non-Performing Party, whereupon the Escrow Agent shall immediately deliver the Deposit to Purchaser. However, nothing set forth in this Section 10.3(e) 5.2 shall be construed, nor is anything herein intended, to limit rights and remedies of any party otherwise set forth in this Agreement in connection with the Branch Purchase Agreement with respect to the Company’s acceptance default of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedany party.
Appears in 1 contract
Sources: Purchase and Sale Agreement (CNL Growth Properties, Inc.)
Conditions. 5.1.1 Conditions to Obligations of Each Party to Effect the Completion The respective obligations of the Purchaser and the Sellers to commence with the Completion shall be conditional on each of the following conditions being waived in writing by each of the Purchaser and the Sellers’ Representative or fulfilled on or before the Completion Date:
(a) The obligation all filings with and other consents or approvals of any Governmental Authority required to be made or obtained in connection with the Transaction shall have been made or obtained and shall be in full force and effect and any waiting period under any applicable antitrust or other merger control or similar Law that is applicable to the Transaction shall have expired or been terminated;
(b) no outstanding judgment, order, writ, injunction, decree, arbitral award or decision of a court, tribunal, arbitrator or other Governmental Authority (whether temporary, preliminary or permanent) in any jurisdiction shall be in effect that has the effect of making the Transaction illegal or otherwise prohibiting or preventing consummation of the Investor Transaction; and
(c) the Purchaser and the Sellers’ Representative shall have received evidence in form and substance reasonably satisfactory to consummate them that the Closing Purchaser has entered into the Warranty Insurance Policy prior to the date hereof and that the Warranty Insurance Policy shall remain in full force and effect as of the Completion Date.
5.1.2 Conditions to Obligations of the Purchaser to Effect the Completion The obligations of the Purchaser to commence with the Completion shall be subject to the condition that all representations and warranties and other statements conditional on each of the Company following conditions being waived in writing by the Purchaser or fulfilled on or before the Completion Date:
(a) (i) each of the Fundamental Warranties shall have been true and correct in all respects on the date they were made and shall be true and correct in all respects on and as of the Completion Date as though such Fundamental Warranties were made on such date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically other than such Fundamental Warranties as of the date of this Agreement or some other date a specified date, which shall be true and correct in all respects as of such date), except for such failures to be so ) and (ii) all other Seller Warranties shall have been true and correct in all material respects (without giving effect to any qualification limitation as to materiality or Material Adverse Effect contained “materiality” as set forth therein) as would not have, individually in on the aggregate, a Material Adverse Effect; the condition that the Company date they were made and shall have performed be true and correct in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification limitation as to materiality or Material Adverse Effect contained “materiality” set forth therein); ) on and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation as of the Company to consummate the Closing shall be subject to the condition that all Completion Date as though such representations and warranties were made on and as of such date (other statements than such Seller Warranties as of the Investor a specified date, which shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” set forth therein) as of such date);
(b) each of the Sellers shall have performed (or caused to have been performed) and complied in all material respects with each of the covenants and obligations under this Agreement relating to actions to be taken (or not taken) by such Sellers prior to the Completion Date;
(c) no outstanding Action of any nature shall be pending or threatened seeking to restrain or otherwise prohibiting the Transaction or seeking material damages in respect of the Transaction or that would reasonably be expected to require the Purchaser or any of its Affiliates to agree to any change to their respective businesses as currently conducted and as currently contemplated to be conducted;
(d) each of the Employment Agreements and the Non Compete Agreements shall have been executed and shall be in full force and effect, all of the Key Employees shall remain employed by the Company as of immediately prior to the Completion, and none of the Key Employees shall have expressed an intention or interest (whether formally or informally), or taken any action toward, terminating his or her Employment Agreement or Non Compete Agreement;
(e) the Purchaser shall have received from (or on behalf of) each holder of an Option, holder of a Repriced Option or holder of a Designated Promised Option that is a Key Employee, a release agreement reasonably satisfactory to the Purchaser (each, an Option Release Agreement), agreeing that (i) with respect to Vested Options, such holder shall have no rights with respect to such Vested Options at the Completion, other than the right to receive the consideration set forth in Clause 2.4.3(b) with respect to such Options, (ii) with respect to Unvested Options, such holder shall have no rights with respect to such Unvested Option at the Completion, other than the right to receive the consideration set forth in Clause 2.4.3(c) with respect to such Options, (iii) with respect to Repriced Options, such holder shall have no rights with respect to such Repriced Options or (iv) with respect to such Designated Promised Options, such holder shall have no right with respect to such Designated Promised Option, other than the right to receive a grant of a number of restricted stock units of the Purchaser specified in such holder’s Option Release Agreement;
(f) the Purchaser shall have received the Initial Consideration Certificate, the Spreadsheet Certificate and the Funds Flow in accordance with Clause 3.2.5;
(g) the Purchaser shall have received evidence in form and substance satisfactory to the Purchaser that the Company shall have received the Termination Agreements;
(h) the Purchaser shall have received evidence in form and substance satisfactory to the Purchaser that the Company shall have caused the name of SecurityMatters LLC to eliminate “SecurityMatters” and shall have amended the agreements between the Company and SecurityMatters LLC in Agreed Form;
(i) the Purchaser shall have received a certificate from the Company, validly executed by the Chief Executive Officer of the Company for and on the Company’s behalf, certifying that, as of the date Completion, the conditions set forth in 5.1.2(a), 5.1.2(b), 5.1.2(c) and 5.1.2(d) have been satisfied.
5.1.3 Conditions to Obligations of this Agreement the Sellers to Effect the Completion The obligations of the Sellers to commence with the Completion shall be conditional on each of the following conditions being waived in writing by the Sellers or fulfilled on or before the Completion Date:
(a) each of the Purchaser’s warranties hereunder shall have been true and correct in all material respects (without giving effect to any limitation as to “materiality” as set forth therein) on the date of the Closing (except those representations they were made and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” set forth therein) on and as of the Completion Date as though such representations and warranties were made on and as of such date (other than such Purchaser’s Warranties as of a specified date, which shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” set forth therein) as of such date); and and
(b) the condition that the Investor Purchaser shall have performed (or caused to have been performed) and complied in all of its obligations hereunder theretofore to be performed.
(c) The obligation of material respects with each of the Investor covenants and obligations under this Agreement relating to actions to be taken (or not taken) by the Company to consummate the Closing shall be subject Purchaser prior to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedCompletion.
Appears in 1 contract
Conditions. The obligations of the Initial Purchasers to purchase the Securities under this Agreement are subject to the satisfaction of each of the following conditions:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company and the Subsidiaries contained in this Agreement and in each of the Documents to which it is a party shall be true and correct as of the date of this Agreement and the date of the Closing in all material respects (except those representations and warranties that by their terms speak specifically as of the date of this Agreement any representation or some other date warranty that contains a materiality exception therein shall be true and correct in all respects) as of such date)the date hereof and at the applicable Closing Date. On or prior to the applicable Closing Date, except for such failures the Company and each other party to the Documents (other than the Initial Purchasers) shall have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as satisfy would not havereasonably be expected to, individually or in the aggregate, have a Material Adverse Effect).
(b) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the applicable Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the condition qualification or exemption from qualification of any of the Securities in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company after reasonable internal inquiry, be pending as of the applicable Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the applicable Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding other than as set forth in the Pricing Disclosure Package shall be pending or, to the knowledge of the Company after reasonable internal inquiry, threatened other than Proceedings that (i) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Securities, and (ii) would not, individually or in the aggregate, have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto) there shall not have been any Material Adverse Change which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Final Offering Memorandum.
(e) On or after the date hereof and on or prior to the applicable Closing Date, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any negative change, nor shall any notice have been given of any potential or intended negative change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Securities than that on which the Securities were marketed.
(f) The Initial Purchasers shall have received on the applicable Closing Date:
(i) certificates dated the applicable Closing Date, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, on behalf of the Company, to the effect that (A) the representations and warranties set forth in Section 4 hereof, and in each of the Documents that are not qualified by materiality were true and correct in all material respects as of the Applicable Time and are true and correct in all material respects as of the applicable Closing Date with the same force and effect as though expressly made at and as of the applicable Closing Date, (B) the representations and warranties set forth in Section 4 hereof and in each of the Documents that are qualified by materiality were true and correct in all respects as of the Applicable Time and are true and correct in all respects as of the applicable Closing Date, with the same force and effect as though expressly made at and as of the Closing Date, (C) the Company has performed and complied in all material respects with all agreements and satisfied in all material respects all of conditions on its obligations hereunder theretofore part to be performed or satisfied at or prior to the applicable Closing Date, (without giving effect to any qualification as to materiality D) at the applicable Closing Date, since the Applicable Time or Material Adverse Effect contained therein); and the condition that since the date hereof of the most recent financial statements in the Pricing Disclosure Package and the Final Offering Memorandum and except as described in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), to the knowledge of such officers, no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect shall have occurred Effect, (E since the date of the most recent financial statements in the Pricing Disclosure Package and be continuing with respect the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), other than as described in the Pricing Disclosure Package and the Final Offering Memorandum or contemplated hereby, neither the Company nor any Subsidiary of the Company has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to either the Company and the Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (xfinancial or otherwise) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation any Subsidiary of the Company that is material to consummate the business, condition (financial or otherwise) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, and (F) the sale of the Securities has not been enjoined (temporarily or permanently);
(ii) a certificate, dated the applicable Closing Date, executed by the Secretary of the Company and each Guarantor, certifying such matters as the Initial Purchasers may reasonably request;
(iii) a certificate of solvency, dated the applicable Closing Date, executed by the principal financial or accounting officer of the Company substantially in the form previously approved by the Initial Purchasers or their counsel;
(iv) the opinion of Holland & Knight LLP, counsel to the Company, dated the applicable Closing Date, in the form of Exhibit A attached hereto, and negative assurance letter;
(v) Pennsylvania counsel to the Company, who shall be subject reasonably satisfactory to the condition that all representations and warranties and other statements Representatives, shall have furnished to the Initial Purchasers, at the request of the Investor shall be true Company, its written opinion, dated the applicable Closing Date and correct addressed to the Initial Purchasers, substantially in the form of Exhibit C hereto;
(vi) an opinion and negative assurance letter, dated the applicable Closing Date, of Proskauer Rose LLP, counsel to the Initial Purchasers, in form satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions and negative assurance letters; and
(vii) a certificate from the Chief Financial Officer of the Company, dated as of the date of this Agreement hereof and the date as of the Closing (except those representations Date, in form and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject substance reasonably satisfactory to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not Initial Purchasers as to (i) require the Investor accuracy of certain financial data, contained or any of its affiliates incorporated by reference in the Pricing Disclosure Package and the Final Offering Memorandum, which numbers shall be set forth in a schedule attached to file a prior notice under the Change in Bank Control Actsuch certificate, or otherwise seek prior approval or non-objection of any state or federal banking regulator; including Earnings Before Interest, Taxes, Depreciation and Amortization (“EBITDA”) and Adjusted EBITDA and (ii) require the Investor or any accuracy of its affiliates certain financial data related to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); andDanfoss ▇▇▇▇▇ GmbH.
(3g) the conditions set forth in Section 10 The Initial Purchasers shall have received from each of the Branch Purchase AgreementDeloitte & Touche LLP and Ernst & Young LLP, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement independent auditors, with respect to the Company’s acceptance , (A) a comfort letter, dated the date hereof, in form and substance reasonably satisfactory to the Representatives and their counsel, with respect to the financial statements and certain financial information contained in or incorporated by reference to the Pricing Disclosure Package and the Final Offering Memorandum, and (B) a comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that Deloitte & Touche LLP and Ernst & Young LLP, respectively, each reaffirms the statements made in its letter furnished pursuant to clause (A).
(h) The Company shall have filed with Nasdaq an application for the listing of the proceeds Conversion Shares.
(i) Each of the Acceptable Financing (as defined in the Branch Purchase Agreement), Documents shall have been satisfied executed and delivered by all parties thereto, and the Initial Purchasers shall have received a fully executed original of each Document.
(j) The Initial Purchasers shall have received copies of all opinions, certificates, letters and other documents delivered under or waivedin connection with the Offering or any transaction contemplated in the Documents.
(k) The terms of each Document shall conform in all material respects to the description thereof in the Pricing Disclosure Package and the Final Offering Memorandum.
(l) The Representatives shall have received an executed Lock-up Agreement from each Locked-up Person.
Appears in 1 contract
Conditions. The obligation of Bank to make any Loan hereunder is subject to the performance by Borrower of its obligations to be performed hereunder and under the Note and the other Credit Documents on or before the date of such Loan and to the satisfaction of the following further conditions:
(a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties contained herein, in the Note and in the other statements of the Company Credit Documents shall be true on and correct as of the date of this Agreement each Loan hereunder with the same effect as though made on and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of each such date), except for ; on each such failures to be so true date no "Event of Default" under and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually defined in the aggregateNote and no event, a Material Adverse Effect; act or condition which with notice or the condition that the Company shall have performed in all material respects all passage of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality time or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect both would constitute such an Event of Default shall have occurred and be continuing with respect to either (x) the Company or (y) the Company exist or shall occur or exist after giving effect to the transactions contemplated Loan to be made on such date; and any request for borrowing under Section 2.(b) below shall constitute a certification by the Branch Purchase AgreementBorrower to both such effects.
(b) The obligation Borrower shall have provided Bank with written notice (or telephonic notice confirmed in writing) of the Company to consummate proposed loan specifying the Closing principal amount thereof and proposed date thereof, which notice shall be subject received by Bank office no later 1:00pm., local time at the place where the proposed loan is payable, on the date (which shall be a day on which the Bank is open for business) of such proposed Loan. Such notice shall contain a certification as to the condition that all representations and warranties and other statements amounts of the Investor shall be true then current Eligible Accounts and correct as of Eligible Inventory. In the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of event Bank receives telephonic notice, Bank may act in reliance upon such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedtelephonic notice, provided Bank has acted in good faith.
(c) The obligation of each of conditions, if any, specified in any Supplement hereto and in the Investor and the Company to consummate the Closing Note or any Credit Document shall be subject have been met to the following additional conditions:satisfaction of Bank.
(1d) no provision of any applicable law or regulation All legal details and no judgment, injunction, order or decree shall prohibit proceedings in connection with the transactions contemplated hereby by this Agreement shall be satisfactory to Bank and Bank shall have received all such counterpart originals or prohibit the Investor from owning certified or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise copies of such securities by the Investor documents and records of proceedings in connection with such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect transactions, in form and substance satisfactory to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase AgreementBank, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect as Bank may from time to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedtime request.
Appears in 1 contract
Sources: Revolving Line of Credit Agreement (C Cor Electronics Inc)
Conditions. (a) The obligation of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements following obligations of the Company shall be true satisfied or fulfilled on or prior to the date of each Closing, unless otherwise agreed to in writing by the Placement Agent:
(a) The Company shall have delivered to the Placement Agent, at the Initial Closing, (i) a currently-dated long-form good standing certificate or telegram from the Secretary of State where the Company is incorporated and correct each other jurisdiction in which the Company is qualified to do business as a foreign corporation; (ii) the certificate of incorporation (as amended) of the Company, as currently in effect, certified by the Secretary of State of the state where the Company is incorporated; (iii) by-laws of the Company certified by the secretary of the Company; and (iv) certified resolutions of the Board of Directors of the Company approving the execution and delivery of this Agreement, the Securities Purchase Agreement and the Placement Agent Warrants, the issuance and sale of the Shares and Agent Shares, the issuance of Common Stock upon exercise of the Placement Agent Warrants and the registration of the Registrable Securities and the issuance of the Note Shares.
(b) There shall have occurred no event which has a Material Adverse Effect on the Company or any of its businesses, assets, prospects or the Company’s securities since the date of this Agreement.
(c) No litigation or administrative proceeding shall have been threatened or commenced against the Company which (i) seeks to enjoin or otherwise prohibit or restrict the consummation of the transactions contemplated by this Agreement or (ii) if adversely determined, would have a Material Adverse Effect on the Company or the Company’s securities.
(d) The Company shall have delivered to the Placement Agent a certificate of its principal executive and financial officers dated as of the date of such Closing as to the matters set forth in paragraphs 9(a), (b) and (c) of this Agreement and to the date further effect that (i) the Company is not in default, in any respect, under any note, loan agreement, security agreement, mortgage, deed of trust, indenture, contract, alliance agreement, lease, license, joint venture agreement, other agreement or other instrument to which it is a party, except as disclosed in the Closing Financial Statements or the Memorandum and except where such default has not had and could not reasonably be expected to have a Material Adverse Effect; (except those ii) the Company’s representations and warranties that contained in this Agreement are true and correct in all respects on such date with the same force and effect as if made on such date, (iii) there has been no amendment or changes to the Company’s certificate of incorporation or by-laws or authorizing resolutions from those delivered pursuant to Paragraph 9(a) of this Agreement; and (iv) no event has occurred which, with or without the lapse of time or giving of notice, or both, would constitute a breach of default thereof by their terms speak specifically the Company, or would cause acceleration of any obligation of the Company, or could adversely affect the business, operations, financial condition or prospects of the Company.
(e) The Placement Agent shall have received the opinion of E▇▇▇▇ & V▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, dated as of the date of this Agreement or some other date shall be true such Closing in form and correct as of such date), except for such failures substance reasonably satisfactory to be so true the Placement Agent and correct its counsel.
(without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinf) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the The Company shall have performed prepared and filed with the SEC and any states in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect which such filing is required, a Form D relating to the transactions contemplated by sale of the Branch Purchase AgreementCommon Stock and such other documents and certificates as are required, including documents required pursuant to state securities laws.
(bg) The obligation Subscriptions for at least the Minimum Amount of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedaccepted by the Company.
Appears in 1 contract
Conditions. The several obligations of the Selling Stockholder to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the conditions that the Registration Statement shall have become effective prior to the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) The obligation Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the Investor possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to consummate market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing shall be subject Date (i) a certificate, dated the Closing Date and signed by an executive officer of the Company, to the condition effect set forth in Section 6(a)(i) above and to the effect that all the representations and warranties and other statements of the Company shall be contained in this Agreement are true and correct as of the date Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date and (ii) one or more certificates, dated the Closing Date and signed by an executive officer of the Selling Stockholder, to the effect that the representations and warranties of the Selling Stockholder contained in this Agreement are true and the date correct as of the Closing Date and that the Selling Stockholder has complied with all of the agreements and satisfied all of the conditions on their part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering each such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, outside counsel for the Company, each dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(d) The Underwriters shall have received on the Closing Date an opinion of W▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Legal Officer of the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(e) The Underwriters shall have received on the Closing Date an opinion of Shearman & Sterling LLP, counsel for the Selling Stockholder, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(f) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Cravath, Swaine & M▇▇▇▇ LLP, counsel for the Underwriters, each dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. With respect to the negative assurance letter referenced in Section 6(c) above, D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP may state that their opinions and beliefs in such letter are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except those as specified. With respect to Section 6(e) above, Shearman & Sterling LLP may rely upon an opinion or opinions of counsel for the Selling Stockholder and, with respect to factual matters and to the extent such counsel deems appropriate, upon the representations of the Selling Stockholder contained herein and warranties in other documents and instruments; provided that by (A) each such counsel for the Selling Stockholder is satisfactory to your counsel, (B) a copy of each opinion so relied upon is delivered to you and is in form and substance satisfactory to your counsel, (C) copies of any such other documents and instruments shall be delivered to you and shall be in form and substance satisfactory to your counsel and (D) Shearman & Sterling LLP shall state in their terms speak specifically opinion that they are justified in relying on each such other opinion. The opinions and negative assurance letters, as applicable, of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP and Shearman & Sterling LLP described in Sections 6(c) and 6(e) above (and any opinions of counsel for the Selling Stockholder referred to in the immediately preceding paragraph) shall be rendered to the Underwriters at the request of the Company or the Selling Stockholder, as the case may be, and shall so state therein.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, (i) from Deloitte & Touche LLP, independent registered public accountants for BHI, one or more letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Representatives, containing statements and information of this Agreement the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the audited and unaudited financial statements and certain financial information of BHI contained or some incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus and (ii) KPMG LLP and KPMG S.p.A., independent registered public accountants for the Company, one or more letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the audited and unaudited financial statements and certain financial information and pro forma financial information of the Company contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that each such letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The “lock-up” agreements (the “Lock-up Agreements”), each substantially in the form previously agreed, between you and certain stockholders, officers and directors of the Company, including the Selling Stockholder, relating to sales and certain other dispositions of shares of Common Stock and/or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(i) The Underwriters shall have received such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Firm Shares and other matters related to the issuance of such Firm Shares.
(j) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) (A) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to clause 6(b)(i) above remains true and correct as of such date)Option Closing Date and (B) a certificate, except for such failures to be so true dated the Option Closing Date and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not havesigned by an executive officer of the Selling Stockholder, individually in the aggregate, a Material Adverse Effect; the condition confirming that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate certificate delivered on the Closing shall be subject Date pursuant to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be clause 6(b)(ii) above remains true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Option Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor SharesDate;
(2ii) (A) an opinion and negative assurance letter of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, outside counsel for the purchase Company, each dated the Option Closing Date, in connection with the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by the Investor Section 6(c) above and (B) an opinion of W▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Legal Officer of the Investor Company, dated the Option Closing Date, in connection with the Additional Shares shall not (ito be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(d) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or above;
(iii) cause an opinion of Shearman & Sterling LLP, outside counsel for the InvestorSelling Stockholder, together with any other person whose securities of dated the Company would be aggregated Option Closing Date, in connection with the Investor’s securities Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(e) hereof;
(iv) an opinion and negative assurance letter of Cravath, Swaine & M▇▇▇▇ LLP, counsel for the Company Underwriters, each dated the Option Closing Date, in connection with the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(f) hereof;
(v) (A) one or more letters dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte & Touche LLP, independent registered public accountants for purposes of any bank regulation BHI, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to 6(g)(i) hereof and (B) one or lawmore letters dated the Option Closing Date, in form and substance satisfactory to collectively be deemed the Representatives, from KPMG LLP and KPMG S.p.A., independent registered public accountants for the Company, substantially in the same form and substance as the letter furnished to own, control or have the power Underwriters pursuant to vote securities which (assuming, for this purpose only, full conversion and/or exercise of clause 6(g)(ii) hereof; provided that each such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding letter delivered on the date of the Option Closing (after giving effect Date shall use a “cut-off date” not earlier than three business days prior to the purchase of the Investor Shares contemplated hereby)such Option Closing Date; and
(3vi) the conditions set forth in Section 10 of the Branch Purchase Agreement, such other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement documents as you may reasonably request with respect to the Company’s acceptance good standing of the proceeds Company, the due authorization and issuance of the Acceptable Financing (as defined in Additional Shares to be sold on such Option Closing Date and other matters related to the Branch Purchase Agreement), shall have been satisfied or waivedissuance of such Additional Shares.
Appears in 1 contract
Conditions. (a) The obligation the Time of Delivery under such Terms Agreement, as the Investor to consummate case may be, and at and as of such Solicitation Time, the Closing shall be subject to date of such purchase or such Time of Delivery, as the case may be, the condition that all representations and warranties and other statements of at or prior to such time the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder (or under any applicable Terms Agreement) theretofore to be performed.
(c) The obligation of each of the Investor , and the Company to consummate the Closing shall be subject to the following additional conditions:
(1i) no provision of any The Prospectus as then amended or supplemented (including the Pricing Supplement) with respect to such Securities shall have been filed with the Commission pursuant to Rule 424(b) under the Act (if and to the extent such filing is required) within the applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase time period prescribed for such filing by the Investor of the Investor Shares shall not (iRules and Regulations and in accordance with Section 4(a) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulatorhereof; (ii) require no stop order suspending the Investor effectiveness of the Registration Statement shall have been issued and shall remain in effect and no proceeding for that purpose shall have been initiated or any of its affiliates to become a bank holding companythreatened by the Commission; or and (iii) cause all requests for additional information on the Investorpart of the Commission shall have been complied with to the reasonable satisfaction of such Agent;
(b) Counsel to the Agents shall have furnished to such Agent (i) such opinion or opinions, together dated the Commencement Date, with respect to such matters as shall have been reasonably requested by the Agents and (ii) if and to the extent requested by such Agent, on each date (on or prior to such Solicitation Time, the date of such purchase pursuant to an accepted offer or the Time of Delivery under such Terms Agreement, as the case may be) on which (A) the Registration Statement or the Prospectus is amended or supplemented (other than by a Pricing Supplement) or (B) a document is filed under the Act or the Exchange Act and is incorporated by reference into the Prospectus or (C) the Company sells Securities under a Terms Agreement which specifies a condition under this subsection, a letter, dated such applicable date, to the effect that such Agent may rely on the opinion or opinions which were last furnished to such Agent pursuant to this Section 6(b) to the same extent as though it or they were dated the date of such letter authorizing reliance (except that the statements in such letter shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such date) or, in any case, in lieu of such a letter, an opinion or opinions of the same tenor as the opinion or opinions referred to in clause (i) but modified to relate to the Registration Statement and the Prospectus as amended and supplemented to such date; and in each case such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) General Counsel for the Company, or other person whose securities counsel for the Company satisfactory to such Agent, shall have furnished to such Agent his written opinions, dated the Commencement Date and each applicable date referred to in subsection (b) above, in form and substance satisfactory to such Agent and the Company to the effect set forth in Annex III hereto;
(d) The independent certified public accountants who have certified the financial statements of the Company would and its subsidiaries included or incorporated by reference in the Registration Statement shall have furnished to such Agent a letter, dated the 13 -13- Commencement Date and each applicable date referred to in subsection (b) above, in form and substance satisfactory to such Agent to the effect set forth in Annex IV hereto;
(e) The Company shall have furnished or caused to be aggregated with the Investor’s securities furnished to such Agent certificates of officers of the Company dated the Commencement Date and each applicable date referred to in subsection (b) above (read to refer to this subsection) in such form and executed by such officers of the Company as shall be satisfactory to such Agent, as to the accuracy of the representations and warranties of the Company herein at and as of the Commencement Date or such applicable date, as the case may be, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Commencement Date or such applicable date, as the case may be, as to the matters set forth in subsections (a), (f) and (g) of this Section 6, and as to such other matters as such Agent may reasonably request.
(f) Since the respective dates as of which information in the Prospectus as amended or supplemented to such Solicitation Time, the date of such acceptance or the date of such Terms Agreement, as the case may be, is given, and except as set forth therein or contemplated thereby, there shall not have been any change in, or any development which affects, the business, properties, financial condition, results of operations or business prospects of the Company and its consolidated subsidiaries, taken as a whole, which, in the reasonable judgment of such Agent, is material and adverse and which, in the reasonable judgment of such Agent, makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase the Securities or to proceed with the purchase of Securities pursuant to such accepted offer or such Terms Agreement.
(g) Unless known to such Agent prior to such Solicitation Time, the date of such acceptance or the date of such Terms Agreement, as the case may be, there shall not have occurred:
(ii) downgrading in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of any bank regulation or law, to collectively be deemed to own, control or have Rule 436(g)(2) under the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedSecurities Act.
Appears in 1 contract
Conditions. (a) Section 6.1 Conditions to Each Party's Obligation to Effect the Merger. The respective obligation of each party to effect the Investor to consummate the Closing Merger shall be subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) this Agreement shall have been adopted by the requisite vote of the holders of Company Stock, if required by applicable law and the Certificate of Incorporation (provided that Parent shall comply with its obligations in respect of the voting of Shares set forth in Section 1.8(b));
(b) any waiting period applicable to the Merger under the HSR Act and other applicable antitrust or competition laws shall have expired or been terminated, as applicable;
(c) no judgment, statute, rule, regulation, order, decree or injunction shall have been enacted, promulgated or issued by any Governmental Entity or court which prohibits or restrains the consummation of the Merger; and
(d) Parent, the Purchaser or their affiliates shall have purchased shares of Company Stock pursuant to the Offer; provided that neither Parent nor the Purchaser may invoke this condition that all if Purchaser shall have failed to purchase shares of Company Stock so tendered and not withdrawn in violation of the terms of this Agreement or the Offer.
Section 6.2 Conditions to the Obligations of the Company to Effect the Merger. The obligation of the Company to effect the Merger shall be further subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the representations and warranties of Parent and other statements the Purchaser shall be true and accurate in all material respects as of the Effective Time as if made at and as of such time (except for those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which need only be true and accurate as of such date or with respect to such period); and
(b) each of Parent and the Purchaser shall have performed in all material respects all of the respective obligations hereunder required to be performed by Parent or the Purchaser, as the case may be, at or prior to the Effective Time.
Section 6.3 Conditions to the Obligations of Parent and the Purchaser to Effect the Merger. The obligations of Parent and the Purchaser to effect the Merger shall be further subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the representations and warranties of the Company shall be true and correct accurate in all material respects as of the date Effective Time as if made at and as of this Agreement and the date of the Closing such time (except for those representations and warranties that by their terms speak specifically address matters only as of the a particular date or only with respect to a specific period of this Agreement or some other date shall time which need only be true and correct accurate as of such datedate or with respect to such period), except for such failures to be so true and correct ; and
(without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinb) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its the respective obligations hereunder theretofore required to be performed (without giving effect to any qualification as to materiality by the Company, at or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect prior to the transactions contemplated by the Branch Purchase AgreementEffective Time.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 1 contract
Sources: Merger Agreement (Muse John R)
Conditions. (a) 7.1 Conditions to Each Party's Obligations to Effect the Merger. The obligation respective obligations of the Investor Company, Purchaser and Merger Sub to consummate the Closing Merger shall be subject to the condition fulfillment at or prior to the Effective Time, of the following conditions (any of which may be waived, to the extent permitted by law, in writing, in whole or in part, by Company or Purchaser):
(a) This Agreement and the Merger contemplated hereby shall have been approved and adopted by the requisite affirmative vote of Stockholders of Company in accordance with the DGCL and Company's Certificate of Incorporation;
(b) No judgment, order, decree, statute, law, ordinance, rule or regulation, entered, enacted, promulgated, enforced or issued by any court or other Governmental Entity of competent jurisdiction or other legal restraint or prohibition (collectively, "Restraints") will be in effect (i) preventing the consummation of the Merger; or (ii) that all otherwise is reasonably likely to have a Material Adverse Effect following consummation of the Merger; provided, however, that each of Company and Purchaser will have used commercially reasonable efforts to prevent the entry of any such Restraints and to appeal as promptly as possible any such Restraints that may be entered.
7.2 Conditions to the Obligations of Purchaser and Merger Sub. The obligations of Purchaser to consummate the Merger are subject to the satisfaction or waiver by Purchaser or Merger Sub (where permissible) of the following additional conditions:
(a) Each of the representations and warranties and other statements of the Company contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement Effective Time, as though made at and the date as of the Closing (Effective Time, except that those representations and warranties that by their terms speak specifically address matters only as of the date of this Agreement or some other a particular date shall be remain true and correct as of such date), except for such failures and Purchaser shall have received a certificate of the Chief Executive Officer or Chief Financial Officer of Company to that effect. With respect to representations and warranties that cease to be so true and correct (without giving effect due to any qualification actions taken by Company as permitted by Section 6.1 or otherwise consented to materiality or Material Adverse Effect contained therein) as would not haveby Purchaser, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore be entitled to be performed (without giving effect attach to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementsuch officer's certificate updated Schedules reflecting such changes.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed or complied in all of its obligations hereunder theretofore material respects with all agreements and covenants required by this Agreement to be performedperformed or complied with by them on or prior to the Effective Time, and Purchaser shall have received a certificate of the Chief Executive Officer or Chief Financial Officer of Company to that effect.
(c) The obligation Since December 31, 2003 there shall not have been any event which constitutes a Material Adverse Effect.
(d) Purchaser shall have received a written opinion of ▇▇▇▇▇▇ Godward LLP, counsel for Company, dated as of the Closing Date addressed to Purchaser in the form attached as Exhibit A-1
(e) Purchaser shall have received a written opinion of ▇▇▇▇ ▇▇▇▇▇ LLP, counsel for Company, dated as of the Closing Date addressed to Purchaser in the form attached as Exhibit A-2.
(f) Purchaser shall have received employment agreements, in the forms of Exhibits ▇-▇, ▇-▇ and B-3 attached, executed by each ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as of the date hereof, which agreements shall become effective at the Effective Time.
(g) Purchaser shall have received general releases, the form of Exhibit C attached, executed by each officer or director of Company and Company Subsidiaries.
(h) Purchaser shall have received non-competition agreements, in the form of ▇▇▇▇▇▇▇▇ ▇-▇, ▇-▇, ▇-▇ and D-4 attached, executed by each of the Investor Principal Stockholders and the Company to consummate the Closing shall be subject to the following additional conditions:▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any The holders of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; not more than five percent (ii5%) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Common Stock shall have been satisfied or waivedexercised appraisal rights under the DGCL.
Appears in 1 contract
Sources: Merger Agreement (Inforte Corp)
Conditions. (a) The obligation This policy , any endorsement hereon and the schedule shall be read together as one contract and any word or expression to which a specific meaning has been attached in any part of this policy or of the Investor schedule shall bear such specific meaning wherever it may appear.
1. In the event of any incident, circumstance which may give rise to consummate a claim for indemnity under this policy, the Closing insured shall give immediate notice in writing to the Insurer. such notice having been given not later than 30 days after the expiration of the policy period , any claim to which that circumstance has given rise , which may be made within 36 months after the expiration of the period specified in the schedule , shall be deemed for the purpose of this policy to have been made during the existence hereof. .ًندملا نوناقلا نم 926 هداملا نوناق بسحو هل
2. The Insured shall not admit liability or settle or make or promise any payment in respect of any claim which may be the subject to of indemnity hereunder , or incur any costs or expenses in connection therewith , without the condition that all representations and warranties and other statements written consent of the Company Insurer , which be entitled to take over and conduct in the name of the insured the defense and / or settlement of any such claim, any such claim , for which purpose the Insured shall be true give all the information and correct as assistance that the Insurer may reasonably require . The Insurers will not settle any claim without the consent of the Insured. if , however, the Insured refuses to consent to any settlement recommended by the Insurer and shall elect to contest or continue any legal proceedings , then the liability of the Insurer shall not exceed the amount for which the claim could have been so settled , plus the costs and expenses incurred with their consent up to the date of such refusal.
3. Where a retroactive date is specified in the schedule , this Agreement insurance does not apply to claims made against the Insured by reason of any negligent act , error or omission which occurred or was committed , or is alleged to have occurred or committed prior to the said retroactive date .
4. The Insured shall at all times
a) maintain accurate descriptive records of all professional services which records shall be available for inspection and use by the Insurer or their duly appointed representatives insofar as they pertain to any claim hereunder.
b) give to the Insurer or their duly appointed representatives such information , assistance and signed statements as the Insurer may require , and
c) assist in the defense of any claim without charge to the Insurer.
5. In the event of any dispute arising between the Insured and the date Insurer, this insurance shall be governed by the law of the Closing (except those representations country specified in the schedule, whose courts only shall have jurisdiction in any dispute arising hereunder.
6. It is hereby agreed that if any payment is made under this insurance in respect of a claim, the insurer is thereupon subrogated to all the Insured’s rights of recovery in relation thereto.
7. If the Insured makes any claim knowing the same to be fraudulent or false , as regards amount or otherwise , this insurance shall become void and warranties that all claims there under shall be forfeited.
8. If any claim covered by their terms speak specifically as this policy is also covered in whole or in part by other insurance, the liability of the date of this Agreement or some other date company shall be true and correct as limited to their ratable proportion of such date), except for such failures claim.
9. The indemnity provided by this policy is restricted to be so true and correct (without giving effect to any qualification as to materiality apply in respect of
a) compensation resulting from judgment rendered by or Material Adverse Effect contained therein) as would not have, individually obtained from a court of competent jurisdiction in the aggregateterritory stated in the schedule
b) Charges, expenses and legal costs incurred and recoverable in the territory stated in the schedule.
10. In the absence of a Material Adverse Effect; local , legal regulation regarding cancellation , this insurance may be cancelled by the condition that Insured at any time by giving written notice to the Company Insurer . this insurance may also be cancelled by or on behalf of the Insurer by registered , certified or other first class mail , to the Insured’s address as shown in the schedule containing written notice about when , not less than 30 days thereafter , the cancellation shall have performed in all material respects all be effective . The mailing of its obligations hereunder theretofore to such notice as aforesaid shall be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); sufficient proof of notice and the condition that since this insurance shall terminate at the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated hour specified in such notice.
11. If this insurance is cancelled by the Branch Purchase Agreement.
(b) The obligation Insured, the Insurer shall refund the customary short rate proportion of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedpremium hereon.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 1 contract
Sources: Professional Indemnity Policy
Conditions. (a) The obligation of the Investor Buyer to consummate the Acquisition on the Closing shall be Date is subject to the condition that satisfaction of the following conditions (any or all of which may be waived by Buyer, in its sole discretion, in whole or in part, to the extent permitted by applicable law):
(i) each of the representations and warranties and other statements of the Company Seller contained herein shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as though the same had been made on and as of the Closing Date;
(ii) Seller shall have performed and complied, in all material respects, with the covenants and provisions of this Agreement required to be performed or complied with by it between the date hereof and the Closing Date;
(iii) since the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement Agreement, no event or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect circumstance shall have occurred and be continuing that has had, or is reasonably likely to have, a material adverse effect on the business, assets, properties, liabilities, financial condition or results of operations of Seller;
(iv) (A) no Legal Proceeding shall have been instituted or threatened or claim or demand made against Seller or Buyer seeking to restrain or prohibit or to obtain damages with respect to either (x) the Company or (y) the Company after giving effect to consummation of the transactions contemplated by this Agreement, or which might, in the Branch Purchase Agreement.
reasonable opinion of Buyer, result in a material adverse change in the business, assets, properties, liabilities, financial condition or results of operations of Seller and (bB) The obligation there shall not be in effect any Order of a Government Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements consummation of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Sharesby this Agreement;
(2v) Buyer and Seller shall have received all third-party consents and approvals required with respect to the purchase by assumption by, and the Investor assignment to, Buyer of the Investor Shares Lease;
(vi) Buyer shall not (i) require have obtained or discovered, in the Investor or any course of its affiliates due diligence review referred to file a prior notice under in Section 5.1 above, information concerning Seller or the Change Assets which, in Bank Control Actthe reasonable judgment of Buyer, could materially adversely affect the business, assets, financial condition or otherwise seek prior approval or non-objection results of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities operations of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation Seller or law, to collectively be deemed to own, control or have the power to vote securities which Buyer (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than provided that the condition set forth in Section 10.3(ethis clause (vi) will lapse on the Closing Date);
(vii) Buyer shall have received a certificate to the effect set forth in clauses (i) and (ii) above, dated the Closing Date and signed by a duly authorized officer of Seller;
(viii) Buyer shall have received a certificate of the Branch Purchase Agreement with respect to Secretary of each Seller, dated the Company’s acceptance Closing Date, setting forth resolutions of the proceeds Board of Directors and of the Acceptable Financing (shareholders or members, as defined in applicable, of Seller authorizing the Branch Purchase Agreement)execution and delivery of this Agreement and each document and instrument required to be executed and delivered by Seller hereunder and the consummation of the transactions contemplated hereby and thereby, shall and certifying that such resolutions were duly adopted and have not been satisfied rescinded or waived.amended as of the Closing Date;
Appears in 1 contract
Conditions. 8.1 The Insured shall give written notice to the Company as soon as reasonably practicable of any claims made against the Insured (aor any specific event or circumstances that may give rise to a claim being made against the Insured) The obligation and which forms the subject of indemnity under this policy and shall give all such additional information as the Company may require. Every claim, writ, summons or process and all documents relating to the event shall be forwarded to the Company immediately they are received by the Insured.
8.2 No admission offer promise or payment shall be made or given by or on behalf of the Investor Insured without the written consent of the Company.
8.3 The Company will have the right but in no case the obligation, to consummate take over and conduct in the Closing name of the insured the defence of any claims and will have full discretion in the conduct of any proceedings and in the settlement of any claim and having taken over the defence of any claim may relinquish the same. All amounts expended by the Company in the defence, settlement or payment of any claim will reduce the limits of indemnity specified in the Schedule of the Policy. In the event that the Company, in its sole discretion chooses to exercise its right pursuant to this condition, no action taken by the company in the exercise of such right will serve to modify or expand in any manner, the company's liability or obligations under this policy beyond what the company's liability or obligations would have been had it not exercised its rights under this condition.
8.4 The Insured shall be subject give all such information and assistance as the Company may reasonably required.
8.5 The Insured shall give notice as soon as reasonably practicable of any fact, event or circumstance which materially changes the information supplied to the condition that all representations Company at the time when this policy was effected and warranties the Company may amend the terms of this policy.
8.6 The Company may at any time pay to the Insured in connection with any claim or series of claims under this policy to which an indemnity limit applies the amount of such limit (after deduction of any sums already paid) or any lesser amount for which such claims can be settled and other statements of upon such payment being made the Company shall relinquish the conduct and control of and be true under no further liability in connection with such claims. <<< 15 >>>
8.7 The Policy and correct the Schedule shall be read together as one contract and any word or expression to which a specific meaning had been attached in any part of this policy or the Schedule shall bear such specific meaning wherever it may appear. The terms and exclusions of this policy (and any phrase or word contained therein) shall be interpreted in accordance with the Indian Law.
8.8 If at the time of happening of any event resulting into a liability under this policy, there be any other liability insurance or insurances effected by the Insured or by any other person covering the same liability, then the Company shall not be liable to pay or contribute more than its rateable proportion of such liability.
8.9 This Policy does not cover liability which at the time of happening of any event resulting into such liability, be insured by or would but for the existence of this policy, be insured by, any other policy (but not a liability policy) or policies, except in respect of any excess beyond the amount which could have been payable under such policy/policies had this insurance not been effected.
8.10 The Company may cancel this Policy by giving thirty days' notice in writing of such cancellation to the Insured's last known address and in such an event the company will return a pro-rata portion of the premium (subject to a minimum retention of 25 per cent of the annual premium) for the unexpired part of the Insurance. This Policy may also be canceled by the Insured by giving thirty days' notice in writing to the Company in which event the Company will retain premium at short period scale provided there is no claim under the Policy during the period of Insurance. In case of any claim under the policy, no refund of premium shall be allowed.
8.11 In the event of Liability arising under the Policy or the payment of a claim under this Policy, the limit of indemnity per any one year under the policy shall get reduced to the extent of quantum of liability to be paid or actual payment of such claim. Under no circumstance it shall be permissible to reinstate the aggregate limit of indemnity to the original level even on payment of extra premium.
8.12 It is also hereby further expressly agreed and declared that if the Company shall disclaim liability to the Insured for any claim hereunder and such claim shall not within 12 calendar months from the date of this Agreement and such disclaimer have been made the date subject matter of suit in a court of Law then the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date claim shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power been abandoned and shall not thereafter be recoverable hereunder. <<< 16 >>>
8.13 The Company shall not be liable to vote securities which (assuming, for make any payment under this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% Policy in respect of any class of voting securities claim if such claim shall be in any manner fraudulent or supported by any statement or device whether by Insured or by any person on behalf of the Company outstanding Insured and/or if the insurance has been continued in consequence of any material mis-statement or the non- disclosure of any material information by or on the date behalf of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedInsured.
Appears in 1 contract
Sources: Professional Indemnity Insurance
Conditions. The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent (the date on which the following conditions are satisfied or waived, the “Amendment No. 2 Effective Date”):
(a) The obligation of the Company and Investor shall have executed and delivered this Amendment.
(b) after giving effect to consummate this Amendment, the Closing shall be subject to the condition that all representations and warranties contained in the Note Purchase Agreement and in each other statements of Note Document are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the Company text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of the date hereof to the same extent as though made on and as of this Agreement and such date, except to the date of the Closing (except those extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except that by their terms speak specifically such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as of to “materiality” or “Material Adverse Effect” in the date of this Agreement or some other date text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date), except for such failures to be so true and correct ;
(without c) after giving effect to this Amendment, no event shall have occurred and be continuing or would result from the consummation of the transactions contemplated herein that would constitute an Event of Default or a Default;
(d) each Note Party shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary in connection with the transactions contemplated by this Amendment and each other Note Document and each of the foregoing shall be in full force and effect. All applicable waiting periods shall have expired without any qualification action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the this Amendment and each other Note Document or the financing thereof and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable agency to take action to set aside its consent on its own motion shall have expired;
(e) the Company shall have delivered to the Investor an originally executed closing certificate, certifying as to materiality the conditions set forth in Sections 3(b), (c) and (h) of this Amendment;
(f) on the Amendment No. 2 Effective Date, the Investor shall have received a Solvency Certificate of the chief financial officer or treasurer of the Company substantially in the form of Exhibit G, dated as of the Amendment No. 2 Effective Date;
(g) there shall not exist any action, suit, investigation, litigation or proceeding or other legal or regulatory developments pending or, to the Company’s knowledge, threatened in any court or before any arbitrator or Governmental Authority that, in the reasonable judgment of the Investor, singly or in the aggregate, materially impairs any of the other transactions contemplated by this Amendment and each other Note Document, or that would have a Material Adverse Effect contained thereinEffect;
(h) as would not havesince December 31, individually 2023, no event, circumstance or change shall have occurred that has caused or could reasonably be expected to result in, either in any case or in the aggregate, a Material Adverse Effect; and
(i) all actual and documented reasonable out-of-pocket costs, fees and expenses of Ropes & Gray LLP, as counsel to the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore Investor, as invoiced on or prior to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred in connection with this Amendment and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change documents in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), connection herewith shall have been satisfied or waivedpaid.
Appears in 1 contract
Sources: Senior Secured Note Purchase Agreement (Golden Arrow Merger Corp.)
Conditions. SECTION 7.1. Conditions to the Obligation of Each Party. The respective obligations of Parent, Sub and the Company to effect the Merger are subject to the satisfaction of the following conditions, unless waived in writing by all parties:
(a) The obligation This Agreement and the Plan of Merger shall have been approved and adopted by the Required Vote;
(b) No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Investor to consummate the Closing Merger shall be in effect;
(c) All actions by or in respect of or filings with any Governmental Entity required to permit the consummation of the Merger shall have been obtained or made (including the expiration or termination of any applicable waiting period under the HSR Act and any pre-closing clearance required under the antitrust laws of any applicable jurisdiction); and
(d) No Governmental Entity shall have enacted, issued, promulgated, enforced or entered any Law, executive order, decree or injunction (whether temporary, preliminary or permanent) which is then in effect and has the effect of making illegal, materially restricting or in any way preventing or prohibiting the Merger.
SECTION 7.2. Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger are further subject to satisfaction or waiver at or prior to the condition that all Effective Time of the following conditions:
(a) (i) The representations and warranties and other statements of the Company in this Agreement (without giving effect to any materiality or Company Material Adverse Effect qualifications) shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date Effective Time (except for representations and 36 warranties which are as of this Agreement or some other date a specific date, in which event, they shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality inaccuracies in such representations or Material Adverse Effect contained therein) as would not havewarranties as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect; the condition that (ii) the Company shall have performed in all material respects all of its obligations hereunder theretofore required to be performed by it under this Agreement at or prior to Closing; and (iii) the Company shall have delivered to Parent and Sub a certificate to the effect that each of the conditions specified in clauses (i) and (ii) of this Section 7.2(a) is satisfied in all respects, duly executed by an authorized officer of the Company;
(b) There shall not be overtly threatened, instituted or pending any action, proceeding, application or counterclaim by any Governmental Entity before any court or governmental regulatory or administrative agency, authority or tribunal which challenges or seeks to challenge, restrain or prohibit the consummation of the Merger;
(c) There shall be no Company Stock Awards outstanding as of the Effective Time; and
(d) The Company shall have caused to be delivered to Parent resignations of all the directors of the Company and the Subsidiaries effective as of the Effective Time.
SECTION 7.3. Conditions to Obligations of the Company to Effect the Merger. The obligations of the Company to effect the Merger are further subject to satisfaction or waiver at or prior to the Effective Time of the following conditions:
(a) The representations and warranties of Parent and Sub in this Agreement (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (xmaterial adverse effect qualifications) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date as of the Closing Effective Time (except those for representations and warranties that by their terms speak specifically which are as of the date of this Agreement or some other date a specific date, in which event, they shall be true and correct as of such date); , except for such inaccuracies in such representations or warranties as, individually or in the aggregate, would not reasonably be expected, individually or in the aggregate, to prevent or materially delay the performance by Parent or Sub of any of its obligations under this Agreement, the consummation of the Merger or the other transactions contemplated herein;
(b) Parent and the condition that the Investor Sub shall have performed in all of its material respects all obligations hereunder theretofore required to be performed.performed by them under this Agreement at or prior to Closing; and
(c) The obligation Parent and Sub shall have delivered to the Company a certificate to the effect that each of the conditions specified in Sections 7.3(a) and (b) is satisfied in all respects, duly executed by an authorized officer of each of the Investor Parent and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedSub.
Appears in 1 contract
Conditions. 7.1 Conditions to Each Party’s Obligations. The respective obligations of each Party to consummate the Merger are subject to the satisfaction or waiver by each of the Parties of the following conditions:
(a) The obligation no judgment, order, decree, statute, law, ordinance, rule or regulation, entered, enacted, promulgated, enforced or issued by any court or other Governmental Authority of competent jurisdiction or other legal restraint or prohibition shall be in effect which (i) has the effect of making the consummation of the Investor Merger or the other transactions contemplated hereby illegal, or (ii) prohibits the consummation of the Merger or any of the transactions contemplated hereby (collectively, “Restraints”); and since the date hereof there shall not be pending any suit, action or proceeding by any Governmental Authority which could have any of the foregoing effects; provided, however, that the party asserting that the condition set forth in this Section 7.1(a) has not been satisfied shall have used its best efforts to prevent the entry of such Restraints and to appeal as promptly as possible any such Restraints that may be entered; and
(b) the waiting period(s) under the antitrust or competition laws of any applicable jurisdiction, if applicable, shall have expired.
7.2 Additional Conditions to the Obligations of the Company. The obligations of the Company to consummate the Closing shall be Merger are subject to the condition that fulfillment at or prior to the Effective Time of the following additional conditions, any or all of which may be waived in whole or in part by the Company to the extent permitted by applicable Law:
(a) the representations and warranties and other statements of the Company Parent set forth in Section 5.2 shall be true and correct, except where any such failure to be true and correct would not, individually or in the aggregate, result in a Parent Material Adverse Effect, in each case as of the date of this Agreement;
(b) Parent and its Subsidiaries shall have performed or complied in all material respects with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time;
(c) Parent shall have obtained all consents, approvals, orders, releases or authorizations (“Consents”) from, and Parent shall have made all filings and registrations (“Filings”) to or with, any Person, including without limitation any Governmental Authority, necessary to be obtained or made in order for the Company and Merger Sub to consummate the Merger, unless the failure to obtain such Consents or make such Filings would not, individually or in the aggregate, result in a Parent Material Adverse Effect;
(d) Each of Parent, Merger Sub and the date Escrow and Paying Agent shall have executed and delivered the Escrow Agreement;
(e) Parent shall have delivered or have caused Merger Sub to deliver cash to the Escrow and Paying Agent in an aggregate amount as provided for in Section 4.2(d) of this Agreement; and
(f) The Holders Representatives shall have received an opinion of (i) Winston & S▇▇▇▇▇ LLP, counsel to Parent, and (ii) C▇▇▇▇▇, Halter & G▇▇▇▇▇▇▇ LLP, counsel to Merger Sub, as to the matters set forth in Exhibits E-1 and E-2, respectively.
7.3 Additional Conditions to the Obligations of Parent. The obligations of Parent to consummate the Merger are subject to the fulfillment at or prior to the Effective Time of the Closing following additional conditions, any or all of which may be waived in whole or in part by Parent to the extent permitted by applicable Law:
(except those a) the representations and warranties that by their terms speak specifically of the Company set forth in Section 5.1 shall be true and correct, except where any such failure to be true and correct would not, individually or in the aggregate, result in a Material Adverse Effect, in each case as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct Agreement;
(without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinb) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company and its Subsidiaries shall have performed or complied in all material respects all of with its obligations hereunder theretofore agreements and covenants required to be performed (without giving effect to any qualification or complied with under this Agreement as to materiality of or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect prior to the transactions contemplated by the Branch Purchase Agreement.Effective Time;
(bc) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of from the date of this Agreement to the Effective Time, there shall not have been a Material Adverse Effect;
(d) the Company shall have obtained all Consents from, and the date Company shall have made all Filings to or with, any Person, including without limitation any Governmental Authority, necessary to be obtained or made in order for the Company and Merger Sub to consummate the Merger, unless the failure to obtain such Consents or make such Filings would not, individually or in the aggregate, result in a Material Adverse Effect;
(e) Parent shall have received an opinion of (i) Mayer, Brown, R▇▇▇ & Maw LLP and (ii) S▇▇▇▇▇▇▇, Loop & K▇▇▇▇▇▇▇, LLP, as to the Closing matters set forth on Exhibits F-1 and F-2, respectively;
(except those representations and warranties that by their terms speak specifically as of f) the date requisite stockholder approval of this Agreement or some other date shall be true and correct as of such date); and Agreement, the condition that the Investor Merger shall have performed all of its obligations hereunder theretofore to be performed.been obtained and remain in full force and effect;
(cg) The obligation of each of the Investor Company and the Company to consummate Holder Representatives shall have executed and delivered the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor SharesEscrow Agreement;
(2h) the purchase by the Investor Fully-Diluted Stockholders holding not less than 95% of the Investor Company Common Shares shall not have approved the Merger in accordance with the ORC;
(i) require Parent shall have received copies of all payoff and discharge letters in respect to the Investor or any Funded Indebtedness (including copies of its affiliates all UCC-3 termination statements to file a prior notice under be filed immediately after the Change in Bank Control Act, or otherwise seek prior approval or non-objection Closing);
(j) the Company shall have delivered the Adjustment Certificate pursuant to Section 4.2(b);
(k) Parent shall have been reasonably satisfied with the results of any state or federal banking regulator; (ii) require those certain visits and interviews with the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities customers of the Company would be aggregated identified on Schedule 7.3(k), (the “Specified Customers”) so that, in Parent’s reasonable determination, the prospects of the Company’s business with the Investor’s securities of the Company for purposes of any bank regulation or lawSpecified Customers, to collectively taken as a whole, are not materially impaired; provided, this provision shall be deemed to own, control or have satisfied in the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise event Parent has not delivered written notice of its determination of such securities by material impairment prior to 5:00 (Chicago time) on November 7, 2003;
(l) no Principal Stockholder shall have breached or failed to perform in any material respect its covenants or other agreements in the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)applicable Voting Agreement; and
(3m) the conditions set forth in Section 10 Company shall have delivered (i) a Letter of the Branch Purchase Transmittal and (ii) a Warrant Assignment Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedeach case duly executed by each Warrantholder.
Appears in 1 contract
Conditions. (a) 7.1. Conditions to Each Party's Obligations to Effect the Merger. The obligation respective obligations of each party to effect the Investor to consummate the Closing Merger shall be subject to the condition that all representations and warranties and other statements fulfillment at or prior to the Effective Time of the Company following conditions:
(a) The Merger shall be true have been approved and correct as adopted by the requisite vote of the date holders of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase AgreementTarget Common Stock.
(b) The obligation of Parent Common Stock issuable in the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor Merger shall have performed all been authorized for listing on the New York Stock Exchange, upon official notice of its obligations hereunder theretofore to be performedissuance.
(c) The obligation All authorizations, consents, orders or approvals of, and all expirations of each waiting periods imposed by, any Governmental Entity (including without limitation those required to obtain the Regulatory Approvals) (collectively, "CONSENTS") which are necessary for the consummation of the Investor Merger (other than immaterial Consents, the failure to obtain which would not be materially adverse to the business of the Surviving Corporation) shall have been obtained or shall have occurred and shall be in full force and effect at the Effective Time; provided, however, that none of the preceding Consents shall be deemed obtained if (i) it shall have imposed any condition or requirement which would so materially and adversely impact the economic or business benefits to Parent or Target of the transactions contemplated by this Agreement that, had such condition or requirement been known, such party would not, in its reasonable judgment, have entered into this Agreement or (ii) such Consent causes the ownership of Target and the Company Target Subsidiaries by Parent, after the Effective Time, to consummate impose on Parent or any of its Subsidiaries (including Target or any Target Subsidiary) any limitations or conditions on the Closing businesses and activities engaged in by Parent or any such Subsidiary that would not be applicable in the absence of such ownership (any such condition or limitation described in clause (i) or (ii) being referred to herein as a "Burdensome Condition"); provided, however, that none of those conditions and requirements set forth in Section 7.1 of the Target Disclosure Letter hereto shall be subject to the following additional conditions:constitute a Burdensome Condition for any purpose under this Agreement.
(1d) no provision The Registration Statement shall have become effective in accordance with the provisions of the Securities Act. No stop order suspending the effectiveness of the Registration Statement shall have been issued by the Commission and remain in effect.
(e) No temporary restraining order, preliminary or permanent injunction or other order by any federal or state court in the United States which prevents the consummation of the Merger shall have been issued and remain in effect.
(f) All applicable law waiting periods with respect to any "Notification and Report Form for Certain Mergers and Acquisitions" filed by Parent, Target or regulation and no judgment, injunction, order or decree shall prohibit any of their "ultimate parent entities" in compliance with the HSR Act pursuant to the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Acthave passed, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise early termination of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), waiting periods shall have been satisfied or waivedgranted.
(g) The Net Book Value of Target as of the Calculation Date shall have been determined in accordance with Section 5.22.
Appears in 1 contract
Conditions. (a) The obligation Except as otherwise provided herein, you will have all rights of a shareholder with respect to the Investor Restricted Shares, including, without limitation, the right to consummate vote the Closing Restricted Shares and receive any cash and stock dividends with respect to such Restricted Shares. Any shares issued to you as a stock dividend with respect to the Restricted Shares shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of same restrictions under this Agreement and as the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing Restricted Shares with respect to either (x) which such stock dividends were issued and shall bear the Company or (y) same legends as the Company after giving effect to the transactions contemplated by the Branch Purchase AgreementRestricted Shares.
(b) The obligation In the event that the shares of the Company, as a result of a combination of shares or any other change or exchange for other securities, by reclassification, reorganization or otherwise, is increased or decreased or changed into or exchanged for a different number or kind of shares or other securities of the Company to consummate or of another entity, the Closing number of the Restricted Shares shall be subject appropriately adjusted to the condition that all representations and warranties and other statements of the Investor reflect such change. If any such adjustment shall result in a fractional share, such fraction shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performeddisregarded.
(c) The obligation Restricted Shares, and all rights related thereto, may not be sold, transferred, assigned, pledged, hypothecated or otherwise disposed of each prior to the time that the Restricted Shares vest as provided herein.
(d) If your employment with the Company is terminated for any reason, you shall forfeit your right as to any unvested Restricted Shares as of the Investor date of such termination of employment, and the Company to consummate the Closing unvested Restricted Shares shall be subject canceled. The provisions of this Paragraph 3(d) shall not apply to the following additional conditions:any vested Restricted Shares.
(1e) no provision Any sale, transfer, assignment or other disposition by you of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Restricted Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change be made in Bank Control Act, or otherwise seek prior approval or non-objection of any compliance with all federal and state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities laws. The Compensation Committee of the Company would may from time to time impose any conditions on the Restricted Shares as it deems necessary or advisable to ensure such shares are issued and resold in compliance with all applicable federal and state securities laws.
(f) On or after a vesting date, the Company shall notify you if and when the restrictions on the vested Restricted Shares have lapsed. Within ten (10) business days of a vesting date, the Company shall deliver to you a certificate for the vested shares without any legend or restrictions, except for such restrictions as may be aggregated imposed by the Company, in its sole judgment, under Paragraph 3(e) of this Agreement, provided that no certificates for shares will be delivered to you until appropriate arrangements have been made with the Investor’s Company for the withholding of any taxes which may be due with respect to such shares. The Company may condition the delivery of certificates for shares upon the prior receipt from you of any undertakings which it may determine are required to assure that the certificates are being issued in compliance with federal and state securities laws.
(g) Nothing in this Agreement shall confer on you any right to continue in the employ of the Company for purposes or any subsidiary of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities affiliate of the Company outstanding on or any successor to any of them, or affect the date right of the Closing (after giving effect Company or any such subsidiary, affiliate or successor to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedterminate your employment at any time.
Appears in 1 contract
Sources: Restricted Share Agreement (International Specialty Products Inc /New/)
Conditions. 3.1 This Settlement Agreement shall not be deemed in any respect to constitute an admission by any party that any allegation or contention in this proceeding is true or false. Except as specified in this Settlement Agreement to accomplish the customer benefit intended by this Settlement Agreement, the entry of an order by the Department approving the Settlement Agreement shall not in any respect constitute a determination by the Department as to the merits of any other issue raised in this proceeding.
3.2 The making of this Settlement Agreement establishes no principles and shall not be deemed to foreclose any party from making any contention in any future proceeding or investigation, except as to those issues and proceedings that are stated in this Settlement Agreement as being specifically resolved and terminated by approval of this Settlement Agreement.
3.3 This Settlement Agreement is the product of settlement negotiations. The Settling Parties agree that the content of those negotiations (aincluding any work papers or documents produced in connection with the negotiations) The obligation are confidential, that all offers of settlement are without prejudice to the position of any party or participant presenting an offer or participating in the discussion, and, except to enforce rights related to this Settlement Agreement or defend against claims made under this Settlement Agreement, that they will not use the content of those negotiations in any manner in these or other proceedings involving one or more of the Investor parties to consummate this Settlement Agreement, or otherwise.
3.4 The provisions of this Settlement Agreement are not severable. This Settlement Agreement is conditioned on its approval in full by the Closing Department.
3.5 This Settlement Agreement is also contingent upon, and the Company warrants, the provision of accurate, truthful and updated information by the Company during the settlement negotiation process through the Department’s final order. Notwithstanding any other part of this Settlement Agreement to the contrary, this article 3.5 shall be subject binding on the Settling Parties upon execution of the Settlement Agreement.
3.6 If the Department does not approve the Settlement Agreement in its entirety by December 29, 2006, this filing shall be deemed to be withdrawn and shall not constitute a part of the record in any proceeding or used for any other purpose.
3.7 To the extent permitted by law, the Department shall have its usual jurisdiction to implement the terms of this Settlement Agreement. Nothing in this Settlement Agreement, however, shall be construed to prevent or delay the Attorney General from pursuing any cause of action related to this Settlement Agreement in court under ▇.▇. ▇. 93A or otherwise.
3.8 From time to time during the term of this Settlement Agreement, the Attorney General, orally or in writing, may request that the Company respond to not more than 20 informal information requests, including sub-parts, per calendar month regarding any matter related to this Settlement Agreement, the filing and subsequent compliance filings or any other rates, charges or tariffs, and the Company shall answer these information requests in a reasonably prompt manner, not to exceed 21 calendar days from issuance.
3.9 Under no circumstances shall: (1) any charge under this Settlement Agreement or tariffs promulgated under it recover costs that are collected by the Company more than once, or through some other rate, charge or tariff; or (2) any charge recover costs more than once in any other rate, charge or tariff collected by the Company. The Settling Parties acknowledge that the collection(s) described in this paragraph, unless fully refunded with interest, as soon as reasonably possible, shall constitute a breach of this Settlement Agreement when discovered and generally known, and be deemed to violate the involved tariffs.
3.10 Notwithstanding any provision in this Settlement Agreement to the condition that all representations and warranties and other statements contrary, no part of this Settlement Agreement shall be interpreted to interfere with the Attorney General’s rights to petition the Department under ▇.▇. ▇. 164, § 93, or otherwise under law or regulation, for a review of the Company shall be true and correct as or any reason. The signatories listed below represent that they are authorized on behalf of their principals to enter into this Settlement Agreement. By its attorney, /s/ ▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Senior Counsel Chief, Utilities Division Unitil Service Corp. Office of the date of this Agreement Attorney General ▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ One Ashburton Place Hampton, NH 03842 ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Dated: November 29, 2006 Dated: November 29, 2006 Fitchburg Gas and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinElectric Light Company ) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.D.T.E 06-
Appears in 1 contract
Sources: Settlement Agreement (Unitil Corp)
Conditions. The obligations of the Underwriter to purchase the Shares under this Agreement are subject to the satisfaction of each of the following conditions or waiver thereof by the Underwriter:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company contained in this Agreement shall be true and correct as of the date of this Agreement hereof and the date of at the Closing (except those representations and warranties that by their terms speak specifically as of Date. On or prior to the date of this Agreement or some other date shall be true and correct as of such date)Closing Date, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company and each other party hereto (other than the Underwriter) shall have performed in all material respects or complied with all of its obligations hereunder theretofore the agreements and satisfied all conditions on their respective parts to be performed (without giving effect to any qualification as to materiality performed, complied with or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementsatisfied hereunder.
(b) The obligation Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b) under the Act; all filings required by Rule 433 under the Act shall have been made, and no such filings shall have been made without the consent of the Underwriter (which consent shall not have been unreasonably withheld); and no stop order or notice suspending the effectiveness of or preventing the use of the Registration Statement or preventing or suspending the use of the Final Prospectus of any Issuer Free Writing Prospectus shall have been issued, and no proceedings or examination for such purpose shall have been instituted or threatened. Any request of the Commission for inclusion of additional information in the Registration Statement shall have been complied with. No other injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated hereunder, including the issuance of any stop order suspending the qualification or exemption from qualification of any of the Shares in any jurisdiction, and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company to consummate the Closing shall after due inquiry, be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct pending or contemplated as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) The obligation of each No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Investor Closing Date, prevent the consummation of the Offering or any of the transactions contemplated hereunder. No Proceeding shall be pending or, to the knowledge of the Company after due inquiry, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Shares, and (B) would not, individually or in the aggregate, have a Material Adverse Effect, except as disclosed in the Registration Statement and the Company Final Prospectus.
(d) Except as may be disclosed in the Registration Statement, subsequent to consummate the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof after the date hereof), the Final Prospectus (exclusive of any supplement thereto), or any Issuer Free Writing Prospectus (exclusive of any supplement thereto), there shall not have been any material adverse change having a Material Adverse Effect.
(e) The Underwriter shall have received on the Closing shall be subject to the following additional conditionsDate:
(i) certificates dated the Closing Date, signed by (1) no provision of any applicable law or regulation the Chief Executive Officer and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor principal financial or accounting officer of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActCompany, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities on behalf of the Company would be aggregated with Company, to the Investor’s securities effect that (a) the representations and warranties set forth in Section 4 hereof, are true and correct, as of the date hereof and at the Closing Date, (b) the Company for purposes of any bank regulation has performed or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities complied with all of the Company outstanding agreements and satisfied all conditions on its part to be performed, complied with or satisfied hereunder, (c) at the Closing Date or since the date of the Closing most recent financial statements in or incorporated by reference into the Registration Statement and the Final Prospectus (exclusive of any amendment or supplement thereto after giving effect to the purchase of the Investor Shares contemplated herebydate hereof); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than as disclosed in or incorporated by reference into the Registration Statement and the Final Prospectus or contemplated hereby, no event or events have occurred, no information has become known nor does any condition set forth exist that, individually or in Section 10.3(ethe aggregate, would have a Material Adverse Effect, (d) since the date of the Branch Purchase Agreement most recent financial statements in or incorporated by reference into the Registration Statement and the Final Prospectus (exclusive of any amendment or supplement thereto after the Applicable Time), other than as disclosed in or incorporated by reference into the Registration Statement and the Final Prospectus or contemplated hereby, the Company has not incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are materially adverse to the Company, taken as a whole, or entered into any transactions not in the ordinary course of business that are materially adverse to the business, financial condition or results of operations of the Company, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company other than pursuant to the terms of outstanding debt and equity securities that is materially adverse to the business, financial condition or results of operations of the Company, taken as a whole, (e) the Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto, no stop order or notice suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Final Prospectus or any Issuer Free Writing Prospectus has been issued, and no proceedings or examinations for that purpose have been instituted or, to the knowledge of such officers, threatened; and (f) the sale of the Shares has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company, certifying such matters as the Underwriter may reasonably request.
(iii) the opinion of Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Company, dated the Closing Date, in form reasonably satisfactory to the Underwriter covering such matters as are customarily covered in such opinions.
(iv) the opinions of ▇▇▇▇▇ & Lardner LLP, special intellectual property counsel to the Company and Buc & ▇▇▇▇▇▇▇▇▇, special regulatory counsel to the Company, dated the Closing Date, in form reasonably satisfactory to the Underwriter covering such intellectual property and regulatory matters, respectively, as are customarily covered in such opinions.
(f) The Underwriter shall have received from Ernst & Young LLP, independent auditors, with respect to the Company’s acceptance , (i) a customary comfort letter, as of the proceeds of Applicable Time, in form and substance reasonably satisfactory to the Acceptable Financing (as defined Underwriter and Ernst & Young LLP, with respect to the financial statements and certain financial information contained in the Branch Purchase Agreement)or incorporated by reference into the Registration Statement and the Final Prospectus, and (ii) a customary “bring down” comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter and Ernst & Young LLP, to the effect that Ernst & Young LLP reaffirms the statements made in its letter furnished pursuant to clause (i) above.
(g) The Underwriter shall have been satisfied received copies of all opinions, certificates, letters and other documents delivered under or waivedin connection with the Offering or any transaction contemplated hereunder.
(h) The Underwriter shall have received the Registration Statement and the Final Prospectus.
Appears in 1 contract
Conditions. (a) The obligation Your obligations under this Agreement in respect of the Investor to consummate the Closing each Option shall be subject to the condition that all representations and warranties and other statements of the Company shall be herein are true and correct at and as of the date of this Agreement and the date closing of the Closing (except those representations purchase and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as sale of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse EffectOption; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation performed in respect of each of the Investor such Option; and the Company to consummate the Closing shall be subject to the following additional conditions:
(1a) no provision Counsel for the Company specified in Annex III hereto shall have furnished to you their written opinion, dated the date of such closing, in form and substance reasonably satisfactory to you, to the effect set forth in Annex III hereto.
(b) On the date of such closing, the Company shall have furnished to you such appropriate further information, certificates and documents as you may reasonably request.
(c) Since the respective dates as of which information is given in the Exchange Act Reports (as defined in Annex II hereto) to and including the date of such closing, there shall not have been any applicable law material adverse change in the capital stock or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any long-term debt of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor Company or any of its affiliates to file a prior notice under the Change in Bank Control Actsubsidiaries or any material adverse change, or any development that is known to the Company to involve a prospective material adverse change, in or affecting the business, properties, financial position, shareholders' equity or results of operations of the Company and its subsidiaries, otherwise seek prior approval than as set forth or non-objection contemplated in the Exchange Act Reports.
(d) Up to and including the date of such closing, there shall not have occurred any state of the following: (i) a suspension or federal banking regulatormaterial limitation in trading in securities generally on the New York Stock Exchange or the Nasdaq National Market; (ii) require a suspension or material limitation in trading in the Investor Company's securities on the Nasdaq National Market; (iii) a general moratorium on commercial banking activities declared by either Federal or any of its affiliates to become a bank holding companyNew York State authorities; or (iiiiv) cause the Investoroutbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or wary, together with any other person whose securities of if the Company would be aggregated with the Investor’s securities of the Company for purposes effect of any bank regulation such event specified in this Clause (iv) in your reasonable judgment makes it impracticable or law, inadvisable to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to proceed with the purchase of the Investor Shares contemplated hereby); and
(3) Option on the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined terms and in the Branch Purchase manner contemplated in this Agreement), shall have been satisfied or waived.
Appears in 1 contract
Conditions. (a) The obligation of any Agent, as agent of the Investor Company, at any time ("SOLICITATION TIME") to consummate solicit offers to purchase the Closing Securities, the obligation of any Agent to purchase Securities as principal pursuant to any Terms Agreement or otherwise, and the obligation of any other purchaser to purchase Securities shall in each case be subject (1) to the condition that all representations and warranties and other statements of the Company shall be herein and all statements of officers of the Company made in any certificate furnished pursuant to the provisions hereof are true and correct (i) in the case of an Agent's obligation to solicit offers to purchase Securities, at and as of such Solicitation Time and (ii) in the case of any Agent's or any other purchaser's obligation to purchase Securities, at and as of the date time the Company accepts the offer to purchase such Securities and, as the case may be, at and as of this Agreement the related Time of Delivery or time of purchase; (2) to the condition that at or prior to such Solicitation Time, time of acceptance, Time of Delivery or time of purchase, as the case may be, the Company shall have complied in all material respects with all its agreements and all conditions on its part to be performed or satisfied hereunder; and (3) to the following additional conditions when and as specified:
(a) Prior to such Solicitation Time or corresponding Time of Delivery or time of purchase, as the case may be: (i) the Prospectus as amended or supplemented (including, if applicable, the Pricing Supplement) with respect to such Securities shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act; no stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of such Agent; (ii) there shall not have occurred any downgrading, nor shall any notice have been given of downgrading, any intended or potential downgrading or any review or possible change that does not indicate an improvement, in the rating accorded any securities of or guaranteed by the Company by any "nationally recognized statistical rating organization", as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act; (iii) there shall not have been since the respective dates as to which information is given in the Prospectus, any material change in the capital stock or long-term debt of the Company or any of its significant subsidiaries (as defined in the Commission's Regulation S-X) or any material adverse change or any development involving a material adverse change, in or affecting the general affairs, business, prospects, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, taken as a whole, the effect of which in the judgment of the applicable Agent makes it impracticable or inadvisable to proceed with the solicitation by such Agent of offers to purchase Securities from the Company or the purchase by such Agent of Securities from the Company as principal, as the case may be, on the terms and in the manner contemplated in the Prospectus, as so amended or supplemented; and neither the Company nor any of its subsidiaries has sustained since the date of the Closing latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus; and (except those representations and warranties that by their terms speak specifically iv) trading generally shall not have been suspended or materially limited on or by, as the case may be, any of the date New York Stock Exchange, the American Stock Exchange, the National Association of this Agreement Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile Exchange or some other date shall be true and correct as the Chicago Board of such date)Trade, except for such failures to be so true and correct (without giving effect to B) trading of any qualification as to materiality securities of or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that guaranteed by the Company shall not have performed been suspended on any exchange or in all material respects all of its obligations hereunder theretofore to be performed any over-the-counter market, (without giving effect to any qualification as to materiality C) a general moratorium on commercial banking activities in New York shall not have been declared by either Federal or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect New York State authorities, or (D) there shall not have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis that, in the judgment of such Agent or Agents or of such other purchaser, is material and be continuing adverse and which in the judgment of such Agent or Agents or of other purchaser makes it impracticable to proceed with respect the solicitation by such Agent of offers to either (x) purchase Securities from the Company or (y) the purchase by such Agent of Securities from the Company after giving effect as principal, as the case may be, on the terms and in the manner contemplated in the Prospectus as amended or supplemented at the Solicitation Time or at the time such offer to the transactions contemplated by the Branch Purchase Agreementpurchase was made.
(b) On the Commencement Date, and in the case of a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, the General Counsel of the Company, shall have furnished to the relevant Agent or Agents his written opinion, dated the Commencement Date or Time of Delivery, as the case may be, in form and substance satisfactory to such Agent or Agents, to the effect that: (i) the Company is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; (ii) the Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a material adverse effect on the Company and its subsidiaries taken as a whole; (iii) each of the subsidiaries of the Company which constitute "significant subsidiaries" within the meaning of that term under the Commission's Regulation S-X (the "SUBSIDIARIES") is a partnership, limited liability company or corporation existing and in good standing under the laws of its respective jurisdiction of organization or incorporation. Each Subsidiary is qualified to do business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified and in good standing would not have a material adverse effect on the Company and its subsidiaries taken as a whole; and all of the equity or other ownership interests of each of the Subsidiaries is owned directly or indirectly by the Company, except as specified in such opinion; (iv) the Company and each of the Subsidiaries has the power (corporate, limited liability company or partnership or other) to own and lease its properties and to conduct its business as described in the Prospectus; (v) after due inquiry, such counsel (A) has no knowledge of any legal action or governmental investigation, action, suit or proceeding that is pending or threatened against the Company or any of its subsidiaries that has caused such counsel to conclude that such proceeding is required by Item 103 of Regulation S-K to be described in the Prospectus and is not so described and (B) has no knowledge of any contract, document, or court order to which the Company is a party or to which any of the properties of the Company is subject that has caused such counsel to conclude that such contract, document or court order is required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as required; (vi) the execution and delivery of this Agreement, any applicable Terms Agreement or other agreement pursuant to which an Agent purchases Securities as principal, the Indenture, the supplemental indenture relating to the Securities, if any, and the Securities (collectively, the "TRANSACTION DOCUMENTS") have been duly authorized by all necessary actions by the Company; (vii) neither the Company nor any of its Subsidiaries is, or with the giving of notice or lapse of time or both would be, in violation of or in default under, its Certificate of Incorporation or By-Laws or agreement of limited partnership or limited liability company, as the case may be. The execution and delivery by the Company of this Agreement, any applicable Terms Agreement or other agreement pursuant to which an Agent purchases Securities as principal, the performance of the Company's obligations under the Transaction Documents and the Company's sale of the Securities do not (i) violate the Certificate of Incorporation or By-Laws of the Company or (ii) constitute a violation by the Company of any applicable provision of any law, statute, rule regulation or court order (except that such counsel need express no opinion as to (A) any prohibition against fraud or misrepresentation or (B) whether performance of the indemnification or contribution provisions in this Agreement would be permitted or (C) compliance with any disclosure requirement) or (iii) materially breach, or result in a material default under, any existing obligation of the Company or any of its subsidiaries under any of the agreements with which such counsel is familiar; (viii) the Company was not required to consummate obtain any consent, approval, authorization or order, of any governmental agency for the Closing issuance, delivery and sale of the Securities under this Agreement, any applicable Terms Agreement or other agreement pursuant to which an Agent purchases Securities as principal, except for the order by the Commission declaring the Registration Statement effective and such as may be required under state securities or Blue Sky laws in connection with offers and sales of the Securities from the Company and with purchasers of Securities; (ix) the Registration Statement has been declared effective under the Securities Act and such counsel has no knowledge that any stop order suspending its effectiveness has been issued or that any proceedings for that purpose are pending before, or overtly threatened by, the Commission. Section 309(a) of the Trust Indenture Act provides that the Indenture shall be subject deemed to have been qualified under that Act when the condition Registration Statement became effective under the Securities Act; (x) The statements under Item 3 in the most recently filed Annual Report on Form 10-K incorporated by reference in the Registration Statement and the Prospectus were correct in all material respects on the date that all representations and warranties and other the Annual Report was filed with the Commission. Insofar as the statements constitute a summary of the Investor shall be true legal matters, documents or proceedings referred to therein, such statements adequately present the information called for with respect to such legal matters, documents or proceedings; (xi) Nothing has come to such counsel's attention that has caused such counsel to conclude that the Company or any of its subsidiaries (a) does not own or have the rights under any license, permit, certificate, consent, order, approval or other authorization from or has not made any declaration or filing with, any federal, state, local or other governmental authority (including foreign regulatory agencies) or any court or tribunal, domestic or foreign, necessary to own or lease, as the case may be, and correct to operate its properties and to carry on its business as conducted as of the date hereof; or (b) has received any actual notice of this Agreement and any proceeding relating to revocation or modification of any license, permit, certificate, consent, order, approval or other authorization cited in immediately preceding clause (a); or (c) does not have any material right required to use the date of Intellectual Property employed by it in connection with the Closing (except those representations and warranties that business conducted by their terms speak specifically it as of the date hereof; or (d) is, or with the giving of this Agreement notice or some lapse of time or both would be, in violation of or in default under any material indenture, mortgage, deed of trust, loan agreement or other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore material agreement or instrument known to be performed.
(c) The obligation of each of the Investor and me to which the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates subsidiaries, is a party or by which it or any of them or any of their respective subsidiaries is bound. (xii) such counsel is of the opinion that each document incorporated by reference in the Registration Statement and the Prospectus as amended or supplemented (except for the financial statements and related schedules and other financial and statistical information therein, as to file a prior notice under which such counsel need express no opinion) complied as to form when filed with the Change Commission in Bank Control all material respects with the Exchange Act, and the rules and regulations of the Commission thereunder, (B) nothing has come to the attention of such counsel that has caused such counsel to believe that (except for the financial statements and schedules and other financial and statistical information included therein as to which such counsel need express no belief) each part of the Registration Statement (including the documents incorporated by reference therein) filed with the Commission pursuant to the Securities Act relating to the Securities, when such part became effective contained and, as of the date such opinion is delivered contains, any untrue statement of a material fact or otherwise seek prior approval omitted or non-objection omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (C) such counsel is of the opinion that Registration Statement and the Prospectus and any amendments and supplements thereto (except for the financial statements and schedules and other financial and statistical information included therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the Trust Indenture Act and (D) nothing has come to the attention of such counsel that has caused such counsel to believe that (except for the financial statements and schedules and other financial and statistical information included therein as to which such counsel need express no belief) the Registration Statement and the Prospectus, as amended or supplemented, if applicable, as of the date such opinion is delivered contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; PROVIDED that in the case of an opinion delivered on the Commencement Date or federal banking regulatorpursuant to Section 4(i) , the opinion and belief set forth in clauses 6 (b) (xii) (c) and 6 (b) (xii) (o) above shall be deemed not to cover information concerning an offering of particular Securities to the extent such information will be set forth in a supplement to the Basic Prospectus; (c) On the Commencement Date, and in the case of a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, shall have furnished to the relevant Agent or Agents their written opinion, dated the Commencement Date or Time of Delivery, as the case may be, in form and substance satisfactory to such Agent or Agents, to the effect set forth in clauses (i) , (iv) (as to the Company only), (v), (viii), (ix) and (xii) (B), (C) and (D) of paragraph (b) above and to the further effect that:
(i) this Agreement or the applicable Terms Agreement have been duly authorized, executed and delivered by the Company; (ii) require the Investor Securities have been duly authorized and, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for by any purchaser of Securities sold through an Agent as agent or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (Agent as defined in the Branch Purchase Agreement), shall have been satisfied or waived.principal pursua
Appears in 1 contract
Conditions. On the Effective Date (and after giving effect to the terms hereof), (a) The obligation there shall exist no Event of the Investor to consummate the Closing shall be subject to the condition that Default or Default, (b) all representations and warranties and other statements made by the Issuer herein or in any of the Company Related Documents to which it is a party shall be true and correct with the same effect as though such representations and warranties had been made at and as of such time, (c) except as described in the date Official Statement or any other documents provided by the Issuer to the GSEs and approved by the GSEs prior to the Effective Date, no material adverse change shall have occurred in the condition (financial or otherwise) or operations of this Agreement and the Issuer between the date of the Closing Issuer’s most recent audited financial statements and the Effective Date, and no transactions or obligations having a material adverse effect on the condition (except those representations and warranties that financial or otherwise) or operations of the Issuer, whether or not arising from transactions in the ordinary course of the Issuer’s business, shall have been entered into by their terms speak specifically as of the Issuer subsequent to the date of this Agreement the Issuer’s most recent audited financial statements, (d) and such Official Statement (including any amendments or some other date supplements prepared subsequent to its date) shall be true and correct have been furnished to the GSEs prior to the distribution thereof which does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which made, not misleading, (e) except as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually described in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality Official Statement no 16 transaction or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect event shall have occurred and be continuing with respect to either no change shall have occurred in the condition (xfinancial or otherwise) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation operations of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and Issuer between the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); Issuer’s most recent audited financial statements and the condition that Effective Date which materially adversely affects the Investor shall have performed all issuance of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
Bonds, the security for any of the Bonds, or the Issuer’s ability to repay when due its obligations under this Agreement, any of the Bonds and the Related Documents, and (2f) the purchase except as otherwise expressly agreed by the Investor of GSEs, evidence reasonably satisfactory to the Investor Shares shall not GSEs that all existing liquidity and credit facilities relating to the Bonds have been (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Actwill be, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3applicable CLF Effective Date for Series) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedterminated.
Appears in 1 contract
Sources: Reimbursement Agreement (Federal Home Loan Mortgage Corp)
Conditions. The obligations of the Initial Purchaser to purchase the Units under this Agreement are subject to the satisfaction of each of the following conditions or waiver thereof by the Initial Purchaser:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties of each Obligor and other statements its Subsidiaries contained in this Agreement and in each of the Company Documents shall be true and correct as of the date of this Agreement hereof and at the date Closing Date. On or prior to the Closing Date, each Obligor and each other party to the Documents (other than the Initial Purchaser) shall have performed or complied with all of the Closing (except those representations agreements and warranties that by satisfied all conditions on their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as satisfy would not havenot, individually or in the aggregate, have a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation No injunction, restraining order or order of the Company to consummate the Closing any nature by a Governmental Authority shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct have been issued as of the date Closing Date that would prevent or materially interfere with the consummation of this Agreement the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the date qualification or exemption from qualification of any of the Units in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of any Obligor, be pending or contemplated as of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) The obligation of each No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Investor and Closing Date, prevent the Company to consummate consummation of the Closing shall be subject to the following additional conditions:
(1) no provision Offering or any of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby under the Documents. No Proceeding shall be pending or, to the knowledge of any Obligor, threatened other than Proceedings that (A) if adversely determined would not, individually or prohibit in the Investor from owning aggregate, adversely affect the issuance or voting marketability of the Units, and (B) would not, individually or in the aggregate, have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Final Offering Circular, there shall not have been any Material Adverse Change.
(e) The Units shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL market.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Issuers or any securities of the Issuers (including, without limitation, the placing of any of the Investor Shares;
(2foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) the purchase by the Investor any "nationally recognized statistical rating organization" as such term is defined for purposes of the Investor Shares shall not (iRule 436(g)(2) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the Investor outlook for any rating of the Issuers or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of Issuers by any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); rating organization and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 1 contract
Conditions. (a) The obligation of the Investor to consummate the Closing shall You will complete all necessary further documentation and execution same as may be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated reasonably required by the Branch Purchase AgreementCompany.
(b) The obligation of Company and you agree that the Company to consummate the Closing shall be subject to the condition that all representations terms and warranties and other statements of the Investor shall be true and correct as of the date facts of this Agreement agreement and the date of the Closing (except those representations and warranties that its contents may be disclosed as required by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedlaw.
(c) The obligation You acknowledge that during the term of each of the Investor and your employment you had access to information which is confidential and/or proprietary to the Company and its clients, including but not limited to consummate the Closing shall be subject information of a business, financial or technical nature and all other information relating to the following additional conditions:
(1) no provision of any applicable law or regulation business and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities affairs of the Company would and its clients which is not in the public domain through no fault on your part. You undertake and agree that all such information shall be aggregated with and remain at all times the Investor’s securities exclusive property of the Company Company. You further undertake and agree that you will at all times hereafter maintain such information in confidence and shall not disclose such information to anyone else nor shall you use it for purposes your own benefit or for the benefit of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities others except as expressly directed in writing by the Investor and such other personsCompany.
(d) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect You shall deliver up to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth Company, Company property in Section 10 of the Branch Purchase Agreementyour possession or under your control including, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect without limitation, security passes to the Company’s acceptance premises and all Company documents, plans, financial data, laptop, computer discs, files, memoranda, correspondence and all documentation prepared or obtained by you in the course of your employment with the Company relating to its affairs. You undertake not to retain copies of any Company documentation in your possession or under your control, without the prior written consent of the proceeds Company.
(e) The Parties will not at any time hereafter for a period of two (2) years, in any fashion, form, or manner, criticize, denigrate or otherwise disparage or cause disparagement of any other Party, and will not say or do anything that damages or impairs in any way the goodwill and/or reputation of the Acceptable Financing Parties; provided that you may respond accurately and fully to any request for information if required by legal process or in connection with a government investigation. In addition, nothing in this provision or this Agreement is intended to prohibit or restrain you in any manner from making disclosures protected under the whistleblower provisions of federal, provincial or state law or regulation or other applicable law or regulation.
(f) You agree that for a period of one (1) year after the date of your signing the Form of Acceptance, without the written consent of the Company, you will not contact, solicit or otherwise communicate with any employee of the Company unless requested by Company to do so.
(g) You agree to cooperate fully with the Company in connection with its actual or contemplated defense, prosecution, or investigation of any claims or demands by or against third parties, or other matters arising from events, acts, or failures to act that occurred during the period of your employment by the Company. Such cooperation includes, without limitation, making yourself available to the Company upon reasonable notice, without subpoena, to provide complete, truthful and accurate information in witness interviews, depositions, and trial testimony. The Company will reimburse you for reasonable out-of-pocket expenses you incur in connection with any such cooperation (excluding foregone wages, salary, or other compensation) and will make reasonable efforts to accommodate your scheduling needs.
(h) You agree that the resolution of this matter is dependent on you executing the attached Form of Acceptance. This represents the entirety of our agreement with you in connection with your termination of employment and supersedes all prior agreements or understanding including emails or otherwise. If any portion of this agreement is unenforceable then all other aspects of the agreement shall remain in force to the fullest extent as defined allowed by law. This may be executed in counterparts. Please read this letter and the attached Form of Acceptance carefully and ensure that you fully understand the contents of both. You may wish to consider consulting with a legal advisor prior to signing the Form of Acceptance. If you are satisfied that you understand and agree with the terms set out in this letter and in the Branch Purchase Agreement), shall have been satisfied or waived.Form of Acceptance please sign the Form of Acceptance where indicated and return it to me. Your signature on the Form of Acceptance should be witnessed where indicated. Yours sincerely _/s/ ▇▇▇▇▇ ▇▇▇▇▇▇_________ ▇▇▇▇▇ ▇▇▇▇▇▇
Appears in 1 contract
Sources: Separation Agreement (EBET, Inc.)
Conditions. The obligations of the Underwriters to purchase the Shares under this Agreement are subject to the satisfaction of each of the following conditions:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company contained in this Agreement shall be true and correct as of the date of this Agreement hereof and the date of at the Closing (except those representations and warranties that by their terms speak specifically as of Date. On or prior to the date of this Agreement or some other date shall be true and correct as of such date)Closing Date, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company and each other party hereto (other than the Underwriters) shall have performed in all material respects or complied with all of its obligations hereunder theretofore the agreements and satisfied all conditions on their respective parts to be performed (without giving effect to any qualification as to materiality performed, complied with or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementsatisfied hereunder.
(b) The obligation Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b) under the Act; all filings required by Rule 433 under the Act shall have been made, and no such filings shall have been made without the consent of the Underwriters (which consent shall not have been unreasonably withheld); and no stop order or notice suspending the effectiveness of or preventing the use of the Registration Statement or preventing or suspending the use of the Final Prospectus of any Issuer Free Writing Prospectus shall have been issued, and no proceedings or examination for such purpose shall have been instituted or threatened. Any request of the Commission for inclusion of additional information in the Registration Statement shall have been complied with. No other injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated hereunder, including the issuance of any stop order suspending the qualification or exemption from qualification of any of the Shares in any jurisdiction, and no proceeding for that purpose shall have been commenced or, to the knowledge of the Company to consummate after due inquiry, be pending or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated hereunder. No proceeding shall be pending or, to the knowledge of the Company after due inquiry, threatened other than proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Shares, and (B) would not, individually or in the aggregate, have a Material Adverse Effect, except as disclosed in the Registration Statement and the Final Prospectus.
(d) Except as may be disclosed in the Registration Statement, subsequent to the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof after the date hereof), the Final Prospectus (exclusive of any supplement thereto), or any Issuer Free Writing Prospectus (exclusive of any supplement thereto), there shall not have been any material adverse change having a Material Adverse Effect.
(e) The Underwriters shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, on behalf of the Company, to the effect that (A) the representations and warranties set forth in Section 4 hereof, are true and correct, as of the date hereof and at the Closing Date, (B) the Company has performed or complied with all of the agreements and satisfied all conditions on its part to be performed, complied with or satisfied hereunder, (C) at the Closing Date or since the date of the most recent financial statements in or incorporated by reference into the Registration Statement and the Final Prospectus (exclusive of any amendment or supplement thereto after the date hereof), other than as disclosed in or incorporated by reference into the Registration Statement and the Final Prospectus or contemplated hereby, no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (D) since the date of the most recent financial statements in or incorporated by reference into the Registration Statement and the Final Prospectus (exclusive of any amendment or supplement thereto after the Applicable Time), other than as disclosed in or incorporated by reference into the Registration Statement and the Final Prospectus or contemplated hereby, the Company has not incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are materially adverse to the Company, taken as a whole, or entered into any transactions not in the ordinary course of business that are materially adverse to the business, financial condition or results of operations of the Company, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company other than pursuant to the terms of outstanding debt and equity securities that is materially adverse to the business, financial condition or results of operations of the Company, taken as a whole, (E) the Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto, no stop order or notice suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Final Prospectus or any Issuer Free Writing Prospectus has been issued, and no proceedings or examinations for that purpose have been instituted or, to the knowledge of such officers, threatened; and (f) the sale of the Shares has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company, certifying such matters as the Underwriters may reasonably request.
(iii) an opinion of Winthrop & Weinstine, P.A., outside counsel for the Company, dated the Closing Date, to the effect that:
(A) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Final Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect on the Company, taken as a whole;
(B) the authorized capital stock of the Company conforms as to legal matters to the description thereof contained in or incorporated by reference into the Final Prospectus;
(C) the shares of Common Stock outstanding prior to the issuance of the Shares to be sold by the Company in the Offering have been duly authorized and are validly issued, fully paid and non-assessable;
(D) the Shares to be sold by the Company in the Offering have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and, except as described in the Registration Statement, the issuance of such Shares will not be subject to any preemptive or similar rights;
(E) this Agreement has been duly authorized, executed and delivered by the condition Company;
(F) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of applicable law or the certificate of incorporation or bylaws of the Company or, to such counsel’s knowledge, any agreement or other instrument binding upon the Company that is material to the Company, taken as a whole, or, to such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares;
(G) the statements relating to legal matters, documents or proceedings included in (a) the Final Prospectus under the captions “Description of Capital Stock,” “Description of Warrants” and “Description of Units” and (b) the Registration Statement in Item 15, in each case, fairly summarize in all representations material respects such matters, documents or proceedings;
(H) after due inquiry, to its knowledge, such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company is a party or to which any of the properties of the Company is subject that are required to be described in the Registration Statement or the Final Prospectus and warranties are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(I) the Company is not, and after giving effect to the Offering and sale of the Shares and the application of the proceeds thereof as described in the Final Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act; and
(J) (a) in the opinion of such counsel (i) each document filed pursuant to the Exchange Act and incorporated by reference in the Registration Statement and the Final Prospectus (except for the financial statements and financial schedules and other statements financial and statistical data included therein, as to which such counsel need not express any opinion) appeared on its face to be appropriately responsive as of its filing date in all material respects to the requirements of the Investor shall Exchange Act and the applicable rules and regulations of the Commission thereunder and (ii) the Registration Statement and the Final Prospectus (except for the financial statements and financial schedules and other financial and statistical data included therein, as to which such counsel need not express any opinion) appear on their face to be true appropriately responsive in all material respects to the requirements of the Securities Act and correct the applicable rules and regulations of the Commission thereunder, and (b) nothing has come to the attention of such counsel that causes such counsel to believe that (i) the Registration Statement (except for the financial statements and financial schedules and other financial and statistical data included therein, as to which such counsel need not express any belief), at the time the Registration Statement became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, (ii) the most recent Preliminary Prospectus (except for the financial statements and financial schedules and other financial and statistical data included therein, as to which such counsel need not express any belief), as of the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Final Prospectus (except for the financial statements and financial schedules and other financial and statistical data included therein, as to which such counsel need not express any belief), as of its date or as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iv) an opinion of (x) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and (y) Stoel Rives LLP, intellectual property counsel for the Company, dated the Closing Date, to the effect that:
(A) the statements included or incorporated by reference in the Registration Statement, the Base Prospectus and the Final Prospectus under the captions “Summary — Our Business;” “Risk Factors — Risks Relating to Our Business - Our ability to compete depends on our ability to protect our intellectual property, which may not be adequately protected;” “Risk Factors — Risks Relating to Our Business -We are at risk of intellectual property infringement claims;” and “Risk Factors — Risks Relating to Our Business - We plan on purchasing intellectual property for the next versions of our FPOA, and we may not be able to obtain the intellectual property we need under terms and conditions that are acceptable to us;” relating to patents, patent applications, copyrights, trademarks, trademark applications, trade secrets, non-disclosure agreements, work-for-hire agreements, or other proprietary rights (collectively, the “Intellectual Property Statements”), insofar as such Intellectual Property Statements constitute summaries of documents or legal proceedings or refer to matters of law or legal conclusions, are accurate and complete in all material respects and present fairly the information purported to be shown;
(B) nothing has come to its attention that causes it to believe that (a) the Intellectual Property Statements in the Registration Statement, at the Effective Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (b) the Intellectual Property Statements in the most recent Preliminary Prospectus, as of the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (c) the Intellectual Property Statements in the Final Prospectus, as of the date of this Agreement and the Final Prospectus or the date hereof, included or include an untrue statement of a material fact or omitted or omit to state a material fact necessary in order to make the statements therein, in the light of the Closing circumstances under which they were made, not misleading;
(except those representations and warranties that by their terms speak specifically as C) to its knowledge, (a) there are no legal or governmental proceedings pending relating to patent rights, trade secrets, trademarks, service marks, copyrights or other proprietary information or materials of the date Company, and (b) no such proceedings are threatened or contemplated by governmental authorities or others;
(D) it does not know of this Agreement any contracts or some other date shall be true and correct as documents relating to the patents, copyrights, trade secrets, trademarks, service marks or other proprietary information or materials of such date); and the condition Company that the Investor shall have performed all are of its obligations hereunder theretofore a character required to be performed.described in the Registration Statement, the Base Prospectus or the Final Prospectus or to be filed as an exhibit to the Registration Statement or any Incorporated Document which have not been so described or filed as required;
(cE) The obligation of each to its knowledge, (a) the Company, and its customers using products of the Investor Company in their intended manner, is not and would not be infringing or otherwise violating, and, upon the Company to consummate commercialization and sale of the Closing shall be subject to products or services described in the following additional conditions:
(1) no provision Registration Statement, the Base Prospectus or the Final Prospectus as under development, neither of them would infringe or otherwise violate, any patents, trade secrets, trademarks, service marks, copyrights or other proprietary information or materials of others, and it is unaware of any applicable law claims, or regulation any facts which would form a reasonable basis for a claim, of any such infringement, and (b) there are no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting infringements by others of any of the Investor Shares;
(2) the purchase by the Investor patents, trade secrets, trademarks, service marks, copyrights or other proprietary information or materials of the Investor Shares shall not (i) require the Investor Company, and it is unaware of any claims, or any facts which would form a reasonable basis for a claim, of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.any
Appears in 1 contract
Conditions. 3.1 The sale and purchase of the Sale Shares is conditional upon:
(a) The obligation the Purchaser having completed legal, business and financial due diligence on LifeMag and the Subcos to its satisfaction and having obtained the Board and/or Shareholders’ approvals on issuing the Consideration Shares herein;
(b) all consents, approvals, authorisations or other orders of all relevant regulatory authorities required for or in connection with the transfer of the Investor to consummate the Closing shall be subject Sale Shares to the condition that Purchaser by the Vendor have been unconditionally obtained and are in full force and effect, and all representations and warranties other actions have been taken by or on behalf of the Vendor to comply with all legal and other statements requirements applicable in Singapore or elsewhere necessary to ensure that the transfer of the Company shall be true Sale Shares is in accordance and correct do not infringe any existing law, regulation or guidelines or the terms of any such consent, approval or authorisation including but not limited to foreign ownership;
(c) the Purchaser and/or the Vendor not having received on or prior to the Completion Date (or such other date as the parties may agree), notice of any directive, injunction or other order, which restrains or prohibits the consummation of the transactions contemplated by the S&P Agreement or there being no action on or prior to the Completion Date (or such other date as the parties may agree), seeking to restrain or prohibit the consummation thereof, or seeking damages in connection therewith, which is pending or any such directive, injunction or other order or action which is threatened;
(d) (if applicable) the delivery by the Vendor to the Purchaser of the Memorandum of Disclosure, in a form reasonably satisfactory to the Purchaser;
(e) the Vendor Warranties and the Purchaser Warranties contained herein not being untrue or misleading at Completion, as if repeated at Completion and at all times between the date of this Agreement and Completion;
(f) the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed Vendor having fulfilled in all material respects all of its their obligations hereunder theretofore under this Agreement required to be performed (without giving effect to any qualification as to materiality fulfilled on or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect prior to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Completion Date; and
(3g) the Purchaser and/or the Vendor having fulfilled in all material respects all of their obligations under this Agreement to be fulfilled on or prior to the Completion Date.
3.2 In the event that the conditions set forth in Section 10 Clause 3.1 are not fulfilled by 31 June 2006 (or any other date as the Purchaser and the Vendor may agree in writing from time to time), this Agreement shall lapse and be of no further effect and no party to this Agreement shall have any claim against the other for costs, damages, compensation or otherwise or liability to the other party, save for (i) any claim by the Purchaser against the Vendor arising from antecedent breach of the Branch Purchase Agreement, other than terms hereof including the condition set forth undertaking contained in Section 10.3(ethis Clause 3.2 and (ii) any claim by the Vendor against the Purchaser arising from antecedent breach of the Branch Purchase terms hereof including the undertaking contained in this Clause 3.2 and (iii) the parties’ rights and obligations of Confidentiality under Clauses 10 and 12 which shall survive notwithstanding the determination of this Agreement with respect pursuant to this Clause 3.2.
3.3 Each party must promptly notify the Company’s acceptance of the proceeds of the Acceptable Financing (as defined other parties if it becomes aware that any condition specified in the Branch Purchase Agreement), shall have been Clause 3.1 is satisfied or waivedbecomes incapable of being satisfied.
Appears in 1 contract
Conditions. (a) 5.1 Conditions to Each Party's Obligations to Effect the Sale. The obligation respective obligations of each party to effect the Investor to consummate the Closing Sale shall be subject to the condition that all representations Company obtaining Shareholder Approval.
5.2 Conditions to Obligations of the Purchaser to Effect the Sale. The obligations of the Purchaser to effect the Sale shall be subject to the fulfillment or waiver at or prior to the Closing of the additional following conditions:
(a) Each representation and warranties and other statements warranty of the Company set forth in Article 2 shall be true and correct in all material respects as of the date of this Agreement and the date of the Closing Closing.
(except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinb) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the The Company shall have performed in all material respects all of its obligations hereunder theretofore each covenant or other obligation required to be performed by it pursuant to the Transaction Documents prior to the Closing.
(without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (xc) the Company or (y) the Company after giving effect to The consummation of the transactions contemplated by the Branch Purchase AgreementTransaction Documents shall not be prohibited by any Legal Requirement or subject the Purchaser to any penalty or liability arising under any Legal Requirement or imposed by any Government Entity.
(d) No action, suit or proceeding shall be pending or threatened before any Government Entity the result of which could prevent or prohibit the consummation of any transaction pursuant to the Transaction Documents, cause any such transaction to be rescinded following such consummation or adversely affect the Company's performance of its obligations pursuant to the Transaction Documents, and no judgment, order, decree, stipulation, injunction or charge having any such effect shall exist.
(e) All filings, notices, licenses, consents, authorizations, accreditation, waivers, approvals and the like of, to or with any Government Entity or any other Person that are required for the Company to effect the Sale or any other transaction contemplated by the Transaction Documents shall have been duly made or obtained and the Company shall have delivered copies thereof to the Purchaser.
(f) The Company shall have delivered to the Purchaser a certificate dated the Closing Date, signed by the President of the Company stating that the conditions set forth in Section 5.2 (a) through (e) have been satisfied.
(g) The Company shall have delivered to the Purchaser a copy of the resolutions duly adopted by the Company's board of directors authorizing the Company's execution, delivery and performance of the Transaction Documents to which the Company is a party, the Sale, and all other transactions contemplated by the Transaction Documents, as in effect as of the Closing, certified by an officer of the Company.
(h) The Company shall have delivered to the Purchaser a certificate (dated not less than five business days prior to the Closing) of the Treasurer of the State of New Jersey as to the good standing of the Company in New Jersey.
(i) The Company shall have delivered to the Purchaser (i) a certificate representing the Shares, and (ii) the Warrant.
(j) The Shares and the Warrant Shares shall have been listed, or approved for listing subject to issuance, on the Nasdaq SmallCap (or such other market or exchange on which the Common Stock is then listed).
(k) The Purchaser shall have received an opinion of counsel for the Company as to the valid existence of the Company, the Company's corporate power and authority to enter into the Transaction Documents, the due execution of the Transaction Documents, the enforceability of the Transaction Documents in accordance with their respective terms (as may be limited by bankruptcy), and the valid issuance of the Shares and the Warrant, in form and substance reasonably satisfactory to the Purchaser.
(l) The Company shall have filed a registration statement pursuant to Section 4.10(b), or shall have delivered written notice to the Purchaser that the SEC prohibited the Company from filing such registration statement prior to the Closing Date.
5.3 Conditions to Obligations of the Company to Effect the Sale. The obligations of the Company to effect the Sale shall be subject to the fulfillment or waiver at or prior to the Closing of the additional following conditions:
(a) Each representation and warranty by the Purchaser (including those relating to equity holders of the Purchaser) set forth in Article 3 shall be true and correct in all material respects as of the Closing.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor Purchaser shall have performed in all of its obligations hereunder theretofore material respects each covenant or other obligation required to be performedperformed by it pursuant to the Transaction Documents prior to the Closing.
(c) The obligation of each consummation of the Investor and transactions contemplated by the Transaction Documents shall not be prohibited by any Legal Requirement or subject the Company or any of its assets to consummate the Closing any penalty or liability arising under any Legal Requirement or imposed by any Government Entity.
(d) No action, suit or proceeding shall be subject pending or threatened before any Government Entity the result of which could prevent or prohibit the consummation of any transaction pursuant to the Transaction Documents, cause any such transaction to be rescinded following additional conditions:
(1) no provision such consummation or adversely affect the Company's performance of any applicable law or regulation its obligations pursuant to the Transaction Documents, and no judgment, injunctionorder, order decree, stipulation, injunction or decree charge having any such effect shall prohibit exist.
(e) All filings, notices, licenses, consents, authorizations, accreditation, waivers, approvals and the transactions like of, to or with any Government Entity or any other Person that are required for the Purchaser to effect the Sale or any other transaction contemplated hereby by the Transaction Documents shall have been duly made or prohibit obtained and the Investor from owning or voting any Purchaser shall have delivered copies thereof to the Company.
(f) The Purchaser shall have delivered to the Company a certificate, dated the Closing Date, signed by the Managing Member of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) Purchaser stating that the conditions set forth in Section 10 Sections 5.3(a) through (e) have been satisfied.
(g) The Purchaser shall have delivered to the Company a copy of the Branch Purchase Agreementresolutions duly adopted by the Managing Member of the Purchaser authorizing the Purchaser's execution, delivery and performance of the Transaction Documents to which the Purchaser is a party, the Sale, and all other transactions contemplated by the Transaction Documents, as in effect as of the Closing, certified by an officer of the Purchaser.
(h) The Purchaser shall have delivered to the Company a certificate (dated not less than five business days prior to the condition set forth in Section 10.3(eClosing) of the Branch Purchase Agreement Secretary of State of the State of New York as to the good standing of the Purchaser in New York.
(i) The Purchaser shall have delivered to the Company the Note and the Pledge Agreement.
(j) The Company shall have issued and delivered the Key Employee Warrants.
(k) The Company shall have received an opinion of counsel for the Purchaser as to the valid existence of the Purchaser, the Purchaser's power and authority to enter into the Transaction Documents, the due execution of the Transaction Documents, and the enforceability of the Transaction Documents in accordance with respect their respective terms (as may be limited by bankruptcy), in form and substance reasonably satisfactory to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 1 contract
Sources: Purchase Agreement (Techsys Inc)
Conditions. (a) It shall be a condition to the ESOP's obligation to purchase the Shares hereunder that:
(i) The obligation Trustee obtain from FMV, a valuation opinion, dated as of the Investor Closing Date, to consummate the effect that $7.3333 per share does not exceed the fair market value of the Shares as of the Closing Date and that the terms of the transaction contemplated hereunder are fair to the ESOP from a financial point of view;
(ii) The ESOP obtain from the Company a loan in the amount of $11,000,000 on terms acceptable to the Company and the Trustee;
(iii) The purchase of the Shares occurs simulta- neously with the purchase by the ESOP of the additional
(iv) The Trustee obtain from O'Melveny & Myer▇ ▇ ▇etter permitting the Trustee to rely on the opinion letter to be delivered by O'Melveny & Myer▇ ▇▇ connection with the closing of the loan under the Fleet Loan Agreement and the stock purchase under the Chur▇▇▇▇▇ Agreement;
(v) The Trustee obtain a certificate dated as of the Closing Date, signed by a duly authorized officer of the Company, the truth and accuracy of which shall be subject a condition to the condition ESOP's obligation to purchase the Shares, and to the effect that all (1) the representations and warranties and other statements of the Company shall be set forth in Section 3(c) are to the best of his knowledge, after due inquiry, true and correct as of the date of this Agreement on and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either the Closing Date and (x2) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have has performed all of its obligations hereunder theretofore which are to be performedperformed on or prior to the Closing Date; and
(vi) The Trustee shall have determined that the ESOP's purchase of the Shares does not violate ERISA.
(b) It shall be a condition to the Seller's obligation to sell the Shares hereunder that:
(i) the purchase of the Shares occurs simultaneously with the purchase by the ESOP of the additional shares of Series B Stock being sold by other Company shareholders, and the contemporaneous redemption of the Series A stock, as described in Section 1(d); and
(ii) the Trustee obtain from FMV the valuation opinion described in Section 5(a)(1).
(c) The obligation of each of the Investor and the Company to consummate the Closing It shall be subject a condition to the following additional conditionsCompany's obliga- tions hereunder that:
(1i) no provision the Company obtain a term loan in the amount of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit $9,500,000 pursuant to the transactions contemplated hereby or prohibit the Investor from owning or voting any terms of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Fleet Loan Agree- ment; and
(3ii) the conditions set forth in Section 10 Company obtain $6 million from the sale of preferred stock pursuant to the terms of the Branch Purchase Agreement, other than the Chur▇▇▇▇▇ ▇▇▇eement.
(d) It shall be a condition set forth in Section 10.3(e) to each party's obligations hereunder that as of the Branch Purchase Agreement with respect Closing Date, each other party's representations and warranties made under Section 3 are true and correct in all material respects. Any violation of this condition not known prior to the Company’s acceptance of date the proceeds of ESOP purchases the Acceptable Financing (as defined in the Branch Purchase Agreement), Shares shall have been satisfied or waivedconstitute grounds for rescission.
Appears in 1 contract
Conditions. (a) Section VIII.1 Conditions to Each Party's Obligation to Effect the Merger. The obligation respective obligations of each party to effect the Investor to consummate the Closing Merger shall be subject to the condition that all satisfaction or waiver, where permissible, at or prior to the Effective Time, of each of the following conditions:
(a) No statute, law, rule or regulation shall be in effect or have been enacted or promulgated by any Governmental Entity which prohibits the consummation of the Merger, and there shall be no order or injunction of a court of competent jurisdiction in effect prohibiting consummation of the Merger; and
(b) The applicable waiting period (and any extension thereof) under the HSR Act shall have expired or been terminated.
Section VIII.2 Conditions to the Company's Obligation to Effect the Merger. The obligation of the Company to effect the Merger is subject to satisfaction or waiver (to the extent permitted by applicable law) at or prior to the Effective Time of each of the following conditions:
(a) The representations and warranties of Parent and other statements of the Company Merger Sub set forth herein (i) that are qualified as to materiality shall be true and correct both when made and at and as of the Effective Time, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), and (ii) that are not qualified as to materiality shall be true and correct both when made and at and as of the Effective Time, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date) in all material respects.
(b) Parent and Merger Sub shall have performed in all material respects all obligations required to be performed by them at or prior to the Effective Time under this Agreement.
(c) The Company shall have received a certificate, dated as of the Effective Time, signed by the president of Parent, to the effect that the conditions set forth in Section 8.2(a) and Section 8.2(b) have been satisfied.
(d) Parent shall have executed and delivered the Retention Escrow Agreement.
Section VIII.3 Conditions to Parent's and Merger Sub's Obligations to Effect the Merger. The obligation of each of Parent and Merger Sub to effect the Merger is subject to satisfaction or waiver (to the extent permitted by applicable law) at or prior to the Effective Time of each of the following conditions:
(a) The representations and warranties of the Company set forth herein (i) that are qualified as to materiality shall be true and correct both when made and at and as of the Effective Time, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), and (ii) that are not qualified as to materiality shall be true and correct both when made and at and as of the Effective Time, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date) in all material respects; provided, however, that, for purposes of this Section 8.3 as it relates to the representations and warranties set forth in Section 4.21, (A) neither the Company nor any Company subsidiary shall be deemed to have knowledge of any matter to the extent identified in any environmental site assessment of any facility of the Company or Company Subsidiary conducted by Parent's representatives prior to the Effective Time unless such matter was known to the Company or any Company Subsidiary as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of B) any events occurring after the date of this Agreement and prior to the Effective Time of which the Company or some other date any Company Subsidiary has knowledge shall not constitute a breach or inaccuracy of such representations and warranties unless the aggregate amount of all costs of remediation associated with all such events could reasonably be expected to exceed $1 million, in which case, this condition shall be true and correct deemed to have not been satisfied. If this condition is deemed to have not been satisfied as a result of such datethe foregoing clause (B), except for such failures to Parent's sole remedy shall be so true and correct as provided in this Section 8.3.
(without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinb) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the The Company shall have performed in all material respects all of its obligations hereunder theretofore required to be performed (without giving effect to any qualification as to materiality by it at or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect prior to the transactions contemplated by the Branch Purchase Effective Time under this Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each Parent shall have received a certificate, dated as of the Investor and Effective Time, signed by the Company to consummate chief executive officer or chief financial officer of the Closing shall be subject Company, to the following additional conditions:effect that the conditions set forth in Section 8.3(a) and Section 8.3(b) have been satisfied.
(1d) no provision There shall not be pending any action or proceeding by any Governmental Entity or any action or proceeding by any other Person before any court or Governmental Entity seeking (i) to make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the consummation of the Merger or the other transactions contemplated by this Agreement or to obtain any applicable law damages or regulation and no judgment, injunction, order other remedy in connection with the Merger or decree shall prohibit the transactions contemplated hereby by this Agreement, (ii) to restrain or prohibit the Investor from owning Parent's (including its affiliates') ownership or voting operation of all or any portion of the Investor Shares;
(2) the purchase by the Investor business or assets of the Investor Shares shall not (i) require Surviving Corporation or the Investor Company, or to compel Parent or any of its affiliates to file a prior notice under dispose of or hold separate all or any portion of the Change in Bank Control Act, business or otherwise seek prior approval assets of the Surviving Corporation or non-objection the Company or (iii) to impose or confirm limitations on the ability of any state or federal banking regulator; (ii) require the Investor Parent or any of its affiliates to become a bank holding company; effectively control the business or operations of the Surviving Corporation or the Company, and no court, arbitrator or Governmental Entity shall have issued any judgment, order, decree or injunction, and there shall not be any statute, rule or regulation, that is likely, directly or indirectly, to result in any of the consequences referred to in the preceding clauses (i) through (iii); provided, however, that Parent and the Company shall use their reasonable best efforts to have any such judgment, order, decree or injunction vacated.
(i) cause the InvestorCompany shall have mailed or caused to be mailed, together in accordance with any other person whose securities the requirements of the Company would be aggregated with Senior Secured Notes Indenture, a notice of redemption to the Investor’s securities holders of the Company for purposes of any bank regulation or law, Senior Secured Notes stating that the Senior Secured Notes are being redeemed pursuant to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e3.07(a) of the Branch Purchase Agreement Senior Secured Notes Indenture, the Senior Secured Notes Indenture shall have been satisfied and discharged in accordance with respect the requirements of Article 12 of the Senior Secured Notes Indenture (including the deposit with the trustee under the Senior Secured Notes Indenture of cash in U.S. dollars and/or noncallable government securities in an amount sufficient to pay the redemption price and interest on the Senior Secured Notes through the redemption date provided by Parent), and the Senior Secured Notes shall not have been revived or reinstated, and (ii) the Company shall have mailed or caused to be mailed, in accordance with the requirements of the 2007 Notes Indenture, a notice of redemption to the Company’s acceptance holders of the proceeds 2007 Notes stating that the 2007 Notes are being redeemed pursuant to Section 3.07(a) of the Acceptable Financing 2007 Notes Indenture, the 2007 Notes shall have been defeased in accordance with the requirements for "Covenant Defeasance" (as defined in the Branch Purchase Agreement), 2007 Notes Indenture) set forth in Section 8.03 and Article VIII of the 2007 Notes Indenture or the 2007 Notes Indenture shall have been satisfied and discharged on terms and conditions satisfactory to Parent in its sole and absolute discretion (including the deposit with the trustee under the 2007 Notes Indenture of cash in U.S. dollars and/or noncallable government securities in an amount sufficient to pay the redemption price and interest on the 2007 Notes through the redemption date provided by Parent), and the 2007 Notes shall not have been revived or waivedreinstated.
(f) All the Newcup Notes shall have been repurchased or redeemed by Newcup with funds provided to the Company by Parent, Newcup shall not own any 2008 Notes, Newcup and Sweetheart Holdings, Inc. shall each be wholly-owned subsidiaries of the Company, and the Company and each Company Subsidiary shall have been released from their obligations under the Newcup Arrangements as provided in Section 7.10.
(g) The Subordinated Note shall have been repurchased or redeemed by the Company with funds provided by Parent, and the Subordinated Note shall not be outstanding.
(h) Since the date of this Agreement, there shall not have occurred any change, event, occurrence, development or circumstance which, individually or in the aggregate, has had, or could reasonably be expected to have, a Company Material Adverse Effect; provided, however, that the loss of, or decrease in business with, any vendors or customers of the Company or any Company Subsidiary resulting from the public announcement of the transactions contemplated hereby shall be excluded from the determination of Company Material Adverse Effect for purposes of this Section 8.3(h).
(i) The time period for exercising appraisal rights under the DGCL shall have expired, and the Dissenting Shares shall not represent more than 3% of the total number of outstanding shares of Common Stock.
(j) Parent shall have obtained on terms and conditions satisfactory to Parent in its sole and absolute discretion all debt and equity financing necessary in order to consummate the transactions contemplated hereby and to refinance all of the Indebtedness of Parent and its Subsidiaries and all of the Indebtedness of the Company and the Company Subsidiaries.
(k) All authorizations, consents, notifications and approvals required to be made or obtained prior to the Effective Time by each party hereto from any Governmental Entity or other Person in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been made or obtained except for those, the failure of which to obtain could not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(l) All loans or other financing arrangements set forth on Section 8.3(l) of the Company Disclosure Schedule shall have been repaid in full (or shall be repaid concurrently with the Closing), all agreements and arrangements set forth on Section 8.3(l) of the Company Disclosure Schedule shall have been terminated, and the Company and Company Subsidiaries shall have been released in full from any further obligations under any such loans, agreements or arrangements.
(m) The Company shall have delivered to Parent (i) the opinion of Kramer Levin Naftalis & Frankel LLP, special counsel to Seller a▇▇ (▇▇) ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ th▇ ▇▇▇▇▇ny's general counsel, in each case, dated as of the Closing Date, in a form and substance reasonably satisfactory to Parent and its counsel and Parent's financing sources and setting forth such matters as Parent and Parent's financing sources may reasonably request (such opinions to provide that Parent's financing sources may rely on such opinions as if the opinions were addressed to them).
(n) The Stockholders' Representative shall have executed and delivered the Retention Escrow Agreement.
(o) The Company shall have provided (or caused to be provided) to Parent a duly executed certificate, substantially in the form of Exhibit 8.3 (o) attached hereto, to the effect that Parent and Merger Sub are not required to withhold under Section 1445 of the Code from any of the consideration to be paid hereunder (a "FIRPTA Certificate"). Notwithstanding any provision of this Agreement to the contrary, if the Parent does not receive a FIRPTA Certificate prior to Closing, Parent may waive the condition to Closing set forth in this Section 8.3(o) and withhold from consideration payable hereunder in accordance with the requirements of Section 1445 of the Code.
(p) No registration statement filed by the Company or any Company Subsidiary under the Securities Act shall have been declared effective after the date hereof.
(q) The Company shall have delivered to Parent the audited financial statements contemplated in Section 7.13(g) together with an unqualified report of the Company's independent auditors thereon, and such financial statements shall not differ in any material respect from the Financial Statements.
(r) All of the equity interests in Emerald Lady shall have been transferred to Parent or a Subsidiary of Parent free and clear of all Encumbrances, any third-party guarantor of the Emerald Loan Agreement shall have been fully released from any such obligations, the representations and warranties set forth in Section 4.9(c) shall be true and correct in all respects both when made and at and as of the Effective Time, evidence that Emerald Lady has been fully released from all obligations except for those set forth on Section 4.9(c)(iii) of the Company Disclosure Schedule shall have been delivered to Parent, and none of Parent, any Subsidiary of Parent, the Company or any Company Subsidiary shall have incurred any liability or obligation in connection with such transfer (other than Parent's or a Subsidiary of Parent's assumption of any third party guarantee of the Emerald Lady Loan Agreement), in each case, on terms and conditions satisfactory to Parent.
Appears in 1 contract
Conditions. The several obligations of the Selling Stockholder to sell the Shares, to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the conditions that the Registration Statement shall have become effective prior to the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) The obligation Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the Investor possible change, in the rating accorded any of the securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its Subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to consummate market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing shall be subject Date (i) a certificate, dated the Closing Date and signed by an executive officer of the Company, to the condition effect set forth in Section 6(a)(i) above and to the effect that all the representations and warranties and other statements of the Company shall be contained in this Agreement are true and correct as of the date Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date and (ii) a certificate, dated the Closing Date and signed by an executive officer of GE, to the effect that the representations and warranties of GE contained in this Agreement are true and the date correct as of the Closing Date and that GE has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. Each officer signing and delivering each such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, outside counsel for the Company, each dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(d) The Underwriters shall have received on the Closing Date an opinion of ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for GE, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(e) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, each dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. With respect to the negative assurance letter referenced in Section 6(c) above, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may state that their opinions and beliefs in such letter are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except those as specified. With respect to Section 6(d) above, ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely upon an opinion or opinions of counsel for the Selling Stockholder and, with respect to factual matters and to the extent such counsel deems appropriate, upon the representations of the Selling Stockholder contained herein and warranties in other documents and instruments; provided that by (A) each such counsel for the Selling Stockholder is satisfactory to your counsel, (B) a copy of each opinion so relied upon is delivered to you and is in form and substance satisfactory to your counsel, (C) copies of any such other documents and instruments shall be delivered to you and shall be in form and substance satisfactory to your counsel and (D) ▇▇▇▇, ▇▇▇▇▇, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall state in their terms speak specifically opinion that they are justified in relying on each such other opinion. The opinions and negative assurance letters, as applicable, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP described in Sections 6(c) and 6(d) above (and any opinions of counsel for the Selling Stockholder referred to in the immediately preceding paragraph) shall be rendered to the Underwriters at the request of the Company or the Selling Stockholder, as the case may be, and shall so state therein.
(i) The Underwriters shall have received, on each of the date hereof and the Closing Date, from KPMG LLP, independent registered public accountants for the Company, one or more letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Representatives, containing statements and information of this Agreement the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the audited and unaudited financial statements and certain financial information of the Company contained or some incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus, and (ii) the Underwriters shall have received, on each of the date hereof and the Closing Date, from Deloitte & Touche LLP, independent registered public accountants for the Company, one or more letters dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the audited and unaudited financial statements and certain financial information of the Company contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that each such letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(g) The “lock-up” agreements, each substantially in the forms attached as Exhibit A hereto, between (i) you and GE and (ii) you and certain officers and directors of the Company each listed in Schedule III hereto, relating to sales and certain other dispositions of shares of Common Stock and/or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(h) The Underwriters shall have received such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Firm Shares and other matters related to the issuance of such Firm Shares.
(i) The Debt-for-Equity Exchange shall have been consummated (i) in accordance with the terms and conditions of the Exchange Agreement and (ii) consistent with the description thereof set forth in the Time of Sale Prospectus and the Prospectus.
(j) The Financial Industry Regulatory Authority, Inc. has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.
(k) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) (A) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to clause 6(b)(i) above remains true and correct as of such date)Option Closing Date and (B) a certificate, except for such failures to be so true dated the Option Closing Date and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not havesigned by an executive officer of GE, individually in the aggregate, a Material Adverse Effect; the condition confirming that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate certificate delivered on the Closing shall be subject Date pursuant to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be clause 6(b)(ii) above remains true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Option Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor SharesDate;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require an opinion and negative assurance letter of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, outside counsel for the Investor or any of its affiliates Company, each dated the Option Closing Date, in connection with the Additional Shares to become a bank holding company; or be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) above;
(iii) cause an opinion of ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, outside counsel for GE, dated the InvestorOption Closing Date, together with any other person whose securities of the Company would be aggregated in connection with the Investor’s securities Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(d) hereof;
(iv) an opinion and negative assurance letter of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company Underwriters, each dated the Option Closing Date, in connection with the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(e) hereof;
(v) one or more letters dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG LLP, independent registered public accountants for purposes of any bank regulation or lawthe Company, substantially in the same form and substance as the letter furnished to collectively be deemed the Underwriters pursuant to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of clause 6(f)(i) hereof; provided that each such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding letter delivered on the date of Option Closing Date shall use a “cut-off date” not earlier than two business days prior to such Option Closing Date; and one or more letters dated the Option Closing (after giving effect Date, in form and substance satisfactory to the purchase of Representatives, from Deloitte & Touche LLP, independent registered public accountants for the Investor Shares contemplated hereby)Company, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to clause 6(f)(ii) hereof; provided that each such letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business days prior to such Option Closing Date; and
(3vi) the conditions set forth in Section 10 of the Branch Purchase Agreement, such other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement documents as you may reasonably request with respect to the Company’s acceptance good standing of the proceeds Company, the due authorization and issuance of the Acceptable Financing (as defined in Additional Shares to be sold on such Option Closing Date and other matters related to the Branch Purchase Agreement)issuance of such Additional Shares. In addition to the above, the obligations of the Underwriters to purchase and pay for the Shares pursuant to this Agreement are subject to the Selling Stockholder having received a counterpart of the Exchange Agreement that shall have been satisfied or waivedexecuted and delivered by a duly authorized officer of GE, and GE having delivered the Shares to the Selling Stockholder in accordance with the Exchange Agreement.
Appears in 1 contract
Sources: Underwriting Agreement (GE HealthCare Technologies Inc.)
Conditions. The several obligations of the Initial Purchasers to purchase the Notes under this Agreement are subject to the performance by the Company of its covenants and obligations hereunder and the satisfaction of each of the following conditions:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company contained in this Agreement and in each of the Documents shall be true and correct as of the date of this Agreement hereof and the date of at the Closing (except those representations and warranties that by their terms speak specifically as of Date. On or prior to the date of this Agreement or some other date shall be true and correct as of such date)Closing Date, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects or complied with all of the agreements and satisfied all conditions on its obligations hereunder theretofore part to be performed (without giving effect to any qualification as to materiality performed, complied with or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company satisfied on or (y) the Company after giving effect prior to the transactions contemplated by the Branch Purchase Closing Date pursuant to this Agreement.
(b) The obligation No injunction, restraining order or order of the Company to consummate the Closing any nature by a Governmental Authority shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct have been issued as of the date Closing Date that would prevent or materially interfere with the consummation of this Agreement the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the date qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or, to the knowledge of the Company, be pending or contemplated as of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) The obligation of each No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Investor Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Documents. No proceeding shall be pending or, to the knowledge of the Company, threatened other than proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would not, individually or in the aggregate, have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Time of Sale Document and the Final Offering Circular, there shall not have been any Material Adverse Effect.
(e) The Notes shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL market.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to consummate the Notes than that on which the Notes were marketed.
(g) The Initial Purchasers shall have received on the Closing shall be subject to the following additional conditionsDate:
(i) certificates dated the Closing Date, signed by (1) no provision of any applicable law or regulation the Chief Executive Officer and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor principal financial or accounting officer of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActCompany, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities on behalf of the Company would be aggregated Company, to the effect that (a) the representations and warranties set forth in Section 4 hereof are true and correct in all material respects with the Investor’s securities same force and effect as though expressly made at and as of the Company for purposes of any bank regulation or lawClosing Date, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other personsb) would represent more than 9.9% of any class of voting securities of the Company outstanding has performed and complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date hereof or since the date of the Closing most recent financial statements in the Time of Sale Document and the Final Offering Circular (exclusive of any amendment or supplement thereto after giving effect to the purchase date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (d) since the date of the Investor Shares contemplated herebymost recent financial statements in the Time of Sale Document and the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than as described in the Time of Sale Document and the Final Offering Circular or contemplated thereby, the Company has not incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company, or entered into any transactions not in the ordinary course of business that are material to the business, condition set forth in Section 10.3(e(financial or otherwise) or results of operations or prospects of the Branch Purchase Agreement Company, and there has not been any change in the capital stock or long-term indebtedness of the Company that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company, and (e) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company and each Guarantor (or other officer, director or manager acceptable to the Initial Purchasers), certifying such matters as the Initial Purchasers may reasonably request.
(iii) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in the form previously approved by the Initial Purchasers or their counsel.
(iv) the opinion of H▇▇▇▇▇ & B▇▇▇▇, LLP, special counsel to the Company, dated the Closing Date and the opinion of L▇▇▇▇, C▇▇▇▇▇▇▇ & A▇▇▇▇, P.C., counsel to the Company, dated the Closing Date, in the form of Exhibit A attached hereto.
(v) an opinion, dated the Closing Date, of V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., counsel to the Initial Purchasers, in form satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(h) The Initial Purchasers shall have received from BDO S▇▇▇▇▇▇, LLP, independent auditors, with respect to the Company’s acceptance , (A) a customary comfort letter, dated the date hereof, in form and substance satisfactory to the Initial Purchasers and its counsel, with respect to the financial statements and certain financial information contained in the Time of Sale Document, and (B) a customary comfort letter, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers and its counsel, to the effect that BDO S▇▇▇▇▇▇, LLP reaffirms the statements made in its letter furnished pursuant to clause (A) with respect to the financial statements and certain financial information contained in the Time of Sale Document and the Final Offering Circular.
(i) Each of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Documents shall have been satisfied executed and delivered by all parties thereto, and the Initial Purchasers shall have received a fully executed original of each Document.
(j) The Initial Purchasers shall have received copies of all opinions, certificates, letters and other documents delivered under or waivedin connection with the Offering or any transaction contemplated in the Documents.
(k) The terms of each Document shall conform in all material respects to the description thereof in the Time of Sale Document and the Final Offering Circular.
(l) The Initial Purchasers shall have received from C▇▇▇▇▇, G▇▇▇▇▇▇▇▇ & Associates, Inc., independent petroleum engineers, (A) a letter, dated the date hereof, in form and substance satisfactory to the Initial Purchasers and its counsel to the effect that with respect to the Company they are independent petroleum engineers and confirming certain reserve information included in the Time of Sale Document and the Final Offering Circular and (B) a letter, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers and its counsel to the effect that they reaffirm the statements made in the letter furnished pursuant to clause (A).
Appears in 1 contract
Conditions. (a) The obligation increased or new Commitments shall become effective as of the Investor to consummate Increase Effective Date; provided that:
(i) the Closing shall be subject to the condition that all representations and warranties of each Loan Party set forth in Article V and in each other statements of the Company Loan Document shall be true and correct in all material respects on and as of the date Increase Effective Date with the same effect as though made on and as of this Agreement and such date, except to the date of the Closing (except those extent such representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date), except for such failures ; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be so true and correct (without after giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would in all respects on such respective dates; provided, further, that, with respect to any Increase Amendment incurred for purposes of financing a Limited Condition Transaction, only the Specified Representations (and not have, individually any other representations or warranties in Article V or any of the aggregate, a Material Adverse Effect; the condition that the Company other Loan Documents or otherwise) shall have performed be required to be true and correct in all material respects on and as of the Increase Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of its obligations hereunder theretofore such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be performed true and correct (without after giving effect to any qualification as to materiality therein) in all respects on such respective dates;
(ii) no Default or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect Event of Default shall have occurred and be continuing with respect or would result from the Borrowing to either be made on the Increase Effective Date (x) in the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision case of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company Increase Amendment incurred for purposes of any bank regulation or lawfinancing a Limited Condition Transaction, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing execution and delivery of the applicable definitive purchase agreement in connection with such Limited Condition Transaction and (y) in the case of any other Increase Amendment, on the date of the Increase Effective Date;
(iii) after giving effect to such Incremental Term Loan Commitments, Incremental Revolving Commitments and Incremental Loans and the purchase application of the Investor Shares contemplated herebyproceeds thereof, and assuming that all Incremental Revolving Commitments are borrowed in full, the Borrower shall be in compliance on a Pro Forma Basis with a Total Leverage Ratio equal to the lesser of (x) the financial covenant contained in Section 7.15 for the Test Period then most recently ended for which financial statements have been delivered or are required to have been delivered to the Administrative Agent pursuant to Section 6.01(a) or (b), as the case may be and (y) […***…] (assuming, for purposes of such calculations, that all commitments under any Incremental Facility are fully drawn);
(iv) the Borrower shall deliver or cause to be delivered a certificate of a Responsible Officer certifying compliance with the foregoing conditions; and
(3v) to the conditions set forth in Section 10 extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (A) customary legal opinions, board resolutions and officers’ certificates (including solvency certificates) consistent with those delivered on the Branch Purchase Agreement, Closing Date (conformed as appropriate) other than the condition set forth changes to such legal opinions resulting from a change in Section 10.3(e) law, change in fact or change to counsel’s form of the Branch Purchase Agreement with respect opinion reasonably satisfactory to the Company’s acceptance of Administrative Agent and (B) reaffirmation agreements and/or such amendments to the proceeds of Guaranty and the Acceptable Financing (Collateral Documents as defined in may be reasonably requested by the Branch Purchase Agreement), shall have been satisfied or waivedAdministrative Agent.
Appears in 1 contract
Conditions. The effectiveness of Article 2 of this Amendment is subject to the satisfaction of the following conditions precedent:
(a) The obligation Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of the Investor to consummate the Closing shall be subject this Amendment signed on behalf of such party or (ii) written evidence satisfactory to the condition Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that all such party has signed a counterpart of this Amendment;
(b) The Administrative Agent shall have received such additional documentation and information as the Administrative Agent or its legal counsel may request;
(c) The representations and warranties of each Loan Party set forth herein and in all other statements of the Company Loan Documents shall be true and correct as in all material respects or, in the case of the date of this Agreement and the date of the Closing (except those such representations and warranties that by their terms speak specifically as of the date of this Agreement which are subject to a materiality or some other date Material Adverse Effect qualifier, such representations and warranties shall be true and correct in all respects, in each case on and as of the date hereof, except to the extent such representations and warranties specifically relate to any earlier date in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date), except for or, in the case of such failures representations and warranties which are subject to be so true and correct (without giving effect to any qualification as to a materiality or Material Adverse Effect contained therein) as would not havequalifier, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all such representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct in all respects as of such earlier date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2d) No Default shall exist;
(e) The Administrative Agent shall have received all fees and other amounts due and payable pursuant to this Amendment, the purchase Agreement or any other Loan Document on or prior to the date hereof, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice Borrower hereunder, under the Change in Bank Control Act, Agreement or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with under any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)Loan Document; and
(3f) All proceedings taken in connection with the conditions set forth in Section 10 of the Branch Purchase Agreement, transactions contemplated by this Amendment and all documentation and other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect legal matters incident thereto shall be satisfactory to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedAdministrative Agent and its legal counsel.
Appears in 1 contract
Sources: Credit Facility Agreement (Lennox International Inc)
Conditions. (a) The obligation obligations of the Investor to consummate the Closing parties hereto shall be subject to the condition that all satisfaction or waiver in writing of the following conditions between the date hereof and the Closing:
(i) Prior to Closing, this Agreement shall have been ratified by the Board of Directors of Seller.
(ii) The transactions contemplated by the Equity Exchange Agreement, of even date herewith, by and among Seller, B▇▇▇▇▇▇ O’▇▇▇▇▇▇ LLC and the members of B▇▇▇▇▇▇ O’▇▇▇▇▇▇ LLC shall have been consummated.
(iii) No statute, rule, regulation, executive order, decree or injunction shall have been enacted, entered, promulgated or enforced by any court or governmental authority which prohibits the consummation of the Closing and shall be in effect.
(b) The obligations of the Buyers shall be subject to the satisfaction or waiver in writing of the following further conditions between the date hereof and the Closing:
(i) The representations and warranties and other statements of the Company Seller set forth in this Agreement shall be true and correct as of the date of this Agreement Agreement, and shall also be true in all material respects (except for such changes as are contemplated by the date terms of this Agreement) on and as of the Closing (except those representations with the same force and warranties that by their terms speak specifically effect as though made on and as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct Closing.
(without giving effect to any qualification as to materiality or Material Adverse Effect contained thereinii) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company Seller shall have performed in all material respects all of its obligations hereunder theretofore required to be performed (without giving effect to any qualification as to materiality by it under this Agreement at or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect prior to the transactions contemplated by the Branch Purchase AgreementClosing.
(bc) The obligation obligations of the Company to consummate the Closing Seller shall be subject to the condition that all satisfaction or waiver in writing of the following further conditions between the date hereof and the Closing:
(i) The representations and warranties and other statements of the Investor Buyers set forth in this Agreement shall be true and correct as of the date of this Agreement Agreement, and shall also be true in all material respects (except for such changes as are contemplated by the date terms of this Agreement) on and as of the Closing (except those representations with the same force and warranties that by their terms speak specifically effect as though made on and as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor Closing.
(ii) Each Buyer shall have performed in all of its material respects all obligations hereunder theretofore required to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject performed by it under this Agreement at or prior to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedClosing.
Appears in 1 contract
Conditions. The obligations of the Underwriters to purchase the Notes under this Agreement are subject to the performance by each of the Partnership and each of the Guarantors of their respective covenants and obligations hereunder and the satisfaction of each of the following conditions:
(a) The obligation All of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company Partnership and the Guarantors contained in this Agreement shall be true and correct as of the date hereof and at the Closing Date. On or prior to the Closing Date, the Partnership and each other party to the Documents (other than the Underwriters) shall have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures than conditions to be satisfied by such other parties, which the failure to so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as satisfy would not havenot, individually or in the aggregate, have a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation No injunction, restraining order or order of the Company to consummate the Closing any nature by a Governmental Authority shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct have been issued as of the date Closing Date that would prevent or materially interfere with the consummation of this Agreement the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the date qualification or exemption from qualification of any of the Notes (including the Guarantees) in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Partnership or any of the Guarantors, be pending or contemplated as of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) The obligation of each No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued by any Governmental Authority that would, as of the Investor Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding shall be pending or, to the knowledge of the Partnership or any of the Guarantors, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes (including the Guarantees), and (B) would not, individually or in the aggregate, have a Material Adverse Effect.
(d) Subsequent to the date of this Agreement, there shall not have been any Material Adverse Change that would make it impracticable or inadvisable, in the judgment of the Underwriters, to proceed with the offering or delivery of the Notes on the terms and in the manner contemplated in the Time of Sale Document and the Company Prospectus.
(e) On or after the date hereof, neither S&P nor ▇▇▇▇▇’▇ shall have given notice that it has assigned (or is considering assigning) a lower rating to consummate the Notes than the ratings assigned on June 2, 2015 and June 4, 2015, respectively.
(f) The Underwriters shall have received on the Closing shall be subject to the following additional conditionsDate:
(i) certificates dated the Closing Date, signed by (1) no provision of any applicable law or regulation the Chief Executive Officer and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor principal financial or accounting officer of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActParent, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities on behalf of the Company would be aggregated Partnership and each Guarantor, to the effect that (a) the representations and warranties set forth in Section 4 hereof are true and correct in all material respects with the Investor’s securities same force and effect as though expressly made at and as of the Company for purposes of any bank regulation or lawClosing Date, to collectively be deemed to own, control or have (b) the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor Partnership and such other persons) would represent more than 9.9% of any class of voting securities each of the Company outstanding Guarantors has each performed and complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied pursuant to this Agreement at or prior to the Closing Date, (c) at the Closing Date, since the date hereof and since the date of the Closing most recent financial statements in the Time of Sale Document and the Prospectus (exclusive of any amendment or supplement thereto after giving effect to the purchase of the Investor Shares contemplated herebydate hereof); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, there has been no Material Adverse Effect, other than as described in the condition set forth in Section 10.3(eTime of Sale Document and the Prospectus (exclusive of any amendment or supplement thereto after the date hereof) and (d) the sale of the Branch Purchase Agreement Notes has not been enjoined (temporarily or permanently) by any Governmental Authority.
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Parent, on behalf of the Partnership and each Guarantor, certifying such matters as the Underwriters may reasonably request.
(iii) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Parent, on behalf of the Partnership and each Guarantor, substantially in the form previously approved by the Underwriters or their counsel.
(iv) the opinion of ▇▇▇▇▇ Lovells US LLP, counsel to the Partnership, dated the Closing Date, in the form of Exhibit A attached hereto.
(v) an opinion, dated the Closing Date, of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, in form satisfactory to the Underwriters covering such matters as are customarily covered in such opinions.
(g) The Underwriters shall have received from Ernst & Young LLP, an independent registered public accounting firm, with respect to the Company’s acceptance Parent and the Subsidiaries, (A) a customary comfort letter, dated the date hereof, in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to the financial statements and certain financial information contained in or incorporated by reference in the Time of Sale Document, and (B) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and their counsel, to the effect that Ernst & Young LLP reaffirms the statements made in its letter furnished pursuant to clause (A) with respect to the financial statements and certain financial information of the proceeds Parent and the Subsidiaries.
(h) Each of the Acceptable Financing Documents shall have been executed and delivered by all parties thereto, and the Underwriters shall have received a fully executed original of each Document.
(as defined in the Branch Purchase Agreement)i) The Underwriters, or their counsel, shall have been satisfied received copies of all opinions, certificates, letters and other documents delivered under or waivedin connection with the Offering or any transaction contemplated in the Documents as they may reasonably request.
(j) The terms of each Document shall conform in all material respects to the description thereof in the Time of Sale Document and the Prospectus.
Appears in 1 contract
Sources: Underwriting Agreement (Dupont Fabros Technology, Inc.)
Conditions. 5.1 The obligations of Purchaser to consummate the transaction contemplated hereby are subject to the following conditions which, if not fulfilled by Closing or as otherwise provided herein, shall entitle Purchaser, at its option, to terminate the Agreement and receive a refund of the Deposit:
(a) The obligation transactions contemplated under this Agreement to be effected on the Closing Date shall not be restrained or prohibited by any injunction or order or judgment rendered by any court or other governmental agency of competent jurisdiction and no proceeding shall have been instituted and be pending in which any creditor of Seller or any other person seeks to restrain such transactions or otherwise to attach any of the Investor to consummate the Closing shall be subject to the condition Property, provided that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement any such proceeding or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions action contemplated by the Branch Purchase Agreement.this Section 5.1(a) shall not be brought by, through or under Purchaser;
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of Seller has timely complied with its obligations hereunder theretofore to be performed.hereunder;
(c) The obligation of each All warranties and representations made by Seller herein are and remain truthful in all material respects; and
(d) At Closing, Purchaser’s title company shall be committed, pursuant to the terms of the Investor Title Commitment and subject to the Company payment of the required premium and satisfaction of all other requirements and conditions set forth in the Title Commitment, to issue an ALTA Owner’s Policy of Title Insurance with liability in an amount equal to the Purchase Price showing the Property vested in Purchaser free and clear of any third party rights of possession, other than residential tenants pursuant to unrecorded leases, and other Permitted Exceptions.
5.2 The obligations of Seller to consummate the Closing shall be transaction contemplated hereby are subject to the following additional conditionsconditions which, if not fulfilled by Closing or as otherwise provided herein, shall entitle Seller, at its option, to terminate the Agreement:
(1a) no provision The transactions contemplated under this Agreement to be effected on the Closing Date shall not be restrained or prohibited by any injunction or order or judgment rendered by any court or other governmental agency of any applicable law or regulation competent jurisdiction and no judgment, injunction, order proceeding shall have been instituted and be pending in which any creditor of Seller or decree shall prohibit the any other person seeks to restrain such transactions contemplated hereby or prohibit the Investor from owning or voting otherwise to attach any of the Investor SharesProperty, provided that any such proceeding or action contemplated by this Section 5.2(a) shall not be brought by, through or under Seller;
(2b) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of Purchaser has timely complied with its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)obligations hereunder; and
(3c) All warranties and representations made by Purchaser herein are and remain truthful in all material respects. If any of the conditions set forth above are not satisfied by the party from whom performance is required (the “Non-Performing Party”), or if such performance is not waived by the other party (the “Performing Party”) on or before the Closing Date, and such other party is not in Section 10 breach of the Branch Purchase its obligations under this Agreement, other than then the condition Performing Party, at its option, may terminate this Agreement by giving written notice to the Non-Performing Party, whereupon the Escrow Agent shall immediately deliver the ▇▇▇▇▇▇▇ Money to Purchaser. However, nothing set forth in this Section 10.3(e) 5.2 shall be construed, nor is anything herein intended, to limit rights and remedies of any party otherwise set forth in this Agreement in connection with the Branch Purchase Agreement with respect to the Company’s acceptance default of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedany party.
Appears in 1 contract
Sources: Purchase and Sale Agreement (CNL Growth Properties, Inc.)
Conditions. Purchaser’s and Seller’s respective obligations to consummate the transactions described herein shall be contingent upon:
(a) The obligation representations, warranties, and covenants of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be party set forth in this Agreement being true and correct in all material respects on and as of the date of this Agreement Closing in the same manner and with the date same effect as though such representations, warranties and covenants had been made on and as of the Closing;
(b) As of the Closing Date, the other party shall have performed its obligations hereunder in all material respects and all deliveries to be made at Closing shall have been tendered; and
(c) Lender’s consent to Purchaser’s acquisition of the Property and assumption of the Loan, such consent to be obtained by Seller and Purchaser during the Inspection Period. In the event that a condition precedent to the obligations of a party shall not occur by the Closing and the occurrence of such condition is not waived by such party, then this Agreement shall terminate, the Deposit (less $50,000.00 which shall be paid to Seller) shall be paid to the Purchaser (except those representations in the event Purchaser’s representation and warranties that are not true in all material respects, in which event the entire Deposit will be paid over to Seller) and neither party shall have any further obligation to the other except for such obligation which by their its terms speak specifically as is stated to survive the termination of this Agreement. Provided, however, the failure of any of the date conditions in this paragraph 6 to occur that is a result of a default by a party under this Agreement shall remain subject to the rights and remedies of the non-defaulting party under paragraph 13, but providedfurther, however, with respect to subsection 6(a) above, a change in circumstances occurring after the Effective Date and prior to the Closing Date (as hereinafter defined) which shall make a representation or warranty no longer true and correct, shall not be a default hereunder (unless such change in circumstance was caused by the party making the representation) but shall give rise to a failure of the condition precedent to the other party’s obligation to close on the Project under Paragraph 6(a) and the rights of the parties hereto shall be limited to those set forth in the first sentence of this Agreement paragraph, and except that the failure of a representation or some other date shall warranty to be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company when made shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for be default under this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 1 contract
Sources: Purchase and Sale Agreement (NTS Realty Holdings Lp)
Conditions. The obligations of the Initial Purchaser to purchase the Notes under this Agreement are subject to the performance by each of the Company and each of the Guarantors of their respective covenants and obligations hereunder and the satisfaction of each of the following conditions:
(a) The obligation All of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company Company, the Subsidiaries and the Direct Parent contained in this Agreement and in each of the Transaction Documents shall be true and correct as of the date of this Agreement hereof and at the date Closing Date. On or prior to the Closing Date, the Company and each other party to the Transaction Documents (other than the Initial Purchaser) shall have performed or complied with all of the Closing (except those representations agreements and warranties that by satisfied all conditions on their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures respective parts to be performed, complied with or satisfied pursuant to the Transaction Documents (other than conditions to be satisfied by such other parties, which the failure to so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as satisfy would not havenot, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation No injunction, restraining order or order of the Company to consummate the Closing any nature by a Governmental Authority shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct have been issued as of the date Closing Date that would prevent or materially interfere with the consummation of this Agreement the Offering or any of the transactions contemplated under the Transaction Documents; and no stop order suspending the date qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company, be pending or contemplated as of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) The obligation of each No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Investor Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Transaction Documents. No Proceeding shall be pending or, to the knowledge of the Company, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Offering Circular, there shall not have been any Material Adverse Change.
(e) The Notes shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the Financial Industry Regulatory Authority relating to trading in The PORTAL Market.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to consummate the Notes than that on which the Notes were marketed.
(g) The Initial Purchaser shall have received on the Closing shall be subject to the following additional conditionsDate:
i. certificates dated the Closing Date, signed by (1) no provision of any applicable law or regulation the Chief Executive Officer and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor Chief Financial Officer of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActCompany, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities on behalf of the Company would be aggregated Company, to the effect that (a) the representations and warranties set forth in Section 4 hereof, in each of the Transaction Documents and the Perfection Certificate are true and correct in all material respects with the Investor’s securities same force and effect as though expressly made at and as of the Company for purposes of any bank regulation or lawClosing Date, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other personsb) would represent more than 9.9% of any class of voting securities of the Company outstanding has performed and complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date hereof or since the date of the Closing most recent financial statements in the Offering Circular (exclusive of any amendment or supplement thereto after giving effect the date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), other than as described in the Offering Circular or contemplated hereby, none of the Company, any Subsidiary or the Direct Parent has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the purchase Company, the Subsidiaries and the Direct Parent, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations or prospects of the Investor Shares contemplated herebyCompany, the Subsidiaries and the Direct Parent, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company, any Subsidiary or the Direct Parent that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company, the Subsidiaries and the Direct Parent, taken as a whole, and (e) the sale of the Notes has not been enjoined (temporarily or permanently);
ii. certificates, dated the Closing Date, executed by the Secretary of the Company and each Guarantor, certifying such matters as the Initial Purchaser may reasonably request;
iii. a certificate of solvency, dated the Closing Date, executed by the Chief Financial Officer of the Company substantially in the form previously approved by the Initial Purchaser or its counsel;
iv. the opinion of Schulte Roth & Zabel LLP, counsel t▇ ▇▇▇ Company, dated the Closing Date, in the form of Exhibit A attached hereto; and
v. the opinion of Geiger & Merritt, LLP, California c▇▇▇▇▇▇ to the Company, dated the Closing Date, in a form reasonably acceptable to the Initial Purchaser;
vi. an opinion, dated the Closing Date, of Proskauer Rose LLP, counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(3h) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement The Initial Purchaser shall have received with respect to the Company’s acceptance , from each of (a) Deloitte & Touche LLP, independent registered public accounting firm, for the fiscal years ended December 31, 2007 and 2006 and (b) from Ernst & Young LLP, independent registered public accounting firm, for the fiscal year ended December 25, 2005, a customary comfort letter, dated the date of the proceeds Offering Circular, in form and substance reasonably satisfactory to the Initial Purchaser and its counsel, with respect to the financial statements and certain financial information reviewed by such auditor contained in the Offering Circular.
(i) Each of the Acceptable Financing Transaction Documents shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of each Transaction Document.
(j) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any transaction contemplated in the Transaction Documents.
(k) The terms of each Transaction Document shall conform in all material respects to the description thereof in the Offering Circular.
(l) On or prior to the Closing Date, each of Parent and Parent Loan Guarantor shall have delivered, and performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to, the Parent Loan and Parent Loan Guarantee (other than the completion of the Offering).
(m) On or prior to the Closing Date, Parent shall have made the Equity Contribution.
(n) The Collateral Agent shall have received (with a copy for the Initial Purchaser) on the Closing Date:
i. appropriately completed copies of Uniform Commercial Code financing statements naming the Company and each Guarantor as a debtor and the Collateral Agent as the secured party identified in Schedule III hereto opposite the name of the Guarantor;
ii. appropriately completed copies of Uniform Commercial Code Form UCC 3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any Security Agreement previously granted by any Person;
iii. certified copies of a search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company or any Guarantor as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Agreement, other than such financing statements that evidence Permitted Liens); and
iv. the Collateral Agent and its counsel shall be satisfied that (i) the Lien granted to the Collateral Agent, for the benefit of the Secured Parties (as defined in the Branch Purchase Collateral Agreements) in the collateral described above is of the priority described in the Offering Circular; and (ii) no Lien exists on any of the collateral described above other than the Lien created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement), in each case subject to the Permitted Liens.
(o) The Initial Purchaser shall have been satisfied or waivedreceived substantially contemporaneously with the Closing a copy of the receipt of a payoff letter from each of the institutions listed on Schedule II attached hereto.
Appears in 1 contract
Sources: Purchase Agreement (Perkins & Marie Callender's Inc)
Conditions. The effectiveness of Article 2 of this Amendment is subject to the satisfaction of the following conditions precedent:
(a) The obligation Administrative Agent (or its counsel, ▇▇▇▇▇▇▇▇ PC) shall have received (i) from each party hereto either (A) a counterpart of this Amendment signed on behalf of such party or (B) written evidence satisfactory to the Administrative Agent (which may include fax or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment and (ii) duly executed copies of the Investor to consummate other Loan Documents and such other certificates, documents, instruments and agreements as the Closing Administrative Agent shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually reasonably request in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing connection with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementthis Amendment.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement Lenders and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor Administrative Agent shall have performed received all of its obligations hereunder theretofore fees required to be performedpaid, and all expenses required to be reimbursed for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the First Amendment Effective Date.
(c) The obligation of each Administrative Agent shall have received such other documents as the Administrative Agent, the Issuing Bank or their respective counsel may have reasonably requested.
(d) The representations and warranties of the Investor Loan Parties set forth in this Amendment and the Company to consummate the Closing other Loan Documents shall be true and correct in all material respects with the same effect as though made on and as of the First Amendment Effective Date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to the following additional conditions:any materiality qualifier shall be required to be true and correct in all respects).
(1e) no provision of any applicable law or regulation No Default shall have occurred and no judgment, injunction, order or decree shall prohibit be continuing.
(f) All proceedings taken in connection with the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares this Amendment and all documentation and other legal matters incident thereto shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect satisfactory to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase AgreementAdministrative Agent and its legal counsel, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived▇▇▇▇▇▇▇▇ PC.
Appears in 1 contract
Conditions. (a) The obligation obligations of the Investor Company to consummate sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing shall be Date are subject to the condition that all representations the Prospectus, as amended or supplemented, in relation to the Shares, shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period described for such filing by the rules and warranties regulations under the Securities Act, and other statements as of the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall be in effect or shall be pending or, to the knowledge of the Company, threatened by the Commission; and no notice objecting to its use pursuant to Rule 401(g)(2) shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall have been instituted or threatened. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 3(a)(62) under the Exchange Act; and
(ii) there shall be true not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and correct its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the date of Shares on the Closing (except those representations terms and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; manner contemplated in the condition that the Company shall have performed in all material respects all Time of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase AgreementSale Prospectus.
(b) The obligation Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be contained in this Agreement are true and correct as of the date of this Agreement Closing Date and that the date Company has complied with all of the Closing (except those representations agreements and warranties that by their terms speak specifically as satisfied all of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of conditions on its obligations hereunder theretofore part to be performedperformed or satisfied hereunder on or before the Closing Date. Any officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The obligation Underwriters shall have received on the Closing Date an opinion, including an opinion with regard to the Company’s qualification and taxation as a REIT, and a negative assurance letter of Cravath, Swaine & ▇▇▇▇▇ LLP, outside counsel for the Company, each dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(d) The Underwriters shall have received on the Closing Date an opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, tax counsel for the Company, with regard to the Company’s qualification and taxation as a REIT, dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of the General Counsel or Associate General Counsel to the Company, dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion and a negative assurance letter of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, each dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(g) The Underwriters shall have received, on each of the Investor date hereof and the Company to consummate Closing Date, a letter dated the date hereof or the Closing shall be subject Date, as the case may be, in form and substance satisfactory to the following additional conditions:
(1) no provision of any applicable law or regulation Underwriters, from PricewaterhouseCoopers LLP, independent public accountants, containing statements and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any information of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates type ordinarily included in accountants’ “comfort letters” to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement underwriters with respect to the Company’s acceptance historical and pro forma financial statements and certain financial information of the proceeds Company contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than three business days prior to the Closing Date.
(h) The Underwriters shall have received, on each of the Acceptable Financing (date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as defined the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants to LTS, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the consolidated financial statements and certain financial information of LTS contained in the Branch Purchase Agreement)Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that each letter shall use a “cut-off date” not earlier than October 31, 2017.
(i) The Shares shall have been satisfied approved for listing on the New York Stock Exchange (“NYSE”), subject only to official notice of issuance.
(j) On or waivedprior to the Closing Date, the Company shall have furnished to the Underwriters such further certificates and documents as the Underwriters may reasonably request.
(k) The representations and warranties of the Company contained herein shall be true and correct on and as of the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Crown Castle International Corp)
Conditions. The obligations of the Initial Purchaser to purchase the Notes under this Agreement are subject to the satisfaction (or waiver by the Initial Purchaser) of each of the following conditions:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company contained in this Agreement and in each of the Documents shall be true and correct as of the date of this Agreement hereof and at the date Closing Date. On or prior to the Closing Date, the Company and each other party to the Documents (other than the Initial Purchaser) shall have performed or complied with all of the Closing (except those representations agreements and warranties that by satisfied all conditions on their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as satisfy would not havenot, individually or in the aggregate, have or result in a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation No injunction, restraining order or order of the Company to consummate the Closing any nature by a Governmental Authority shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct have been issued as of the date Closing Date that would prevent or materially interfere with the consummation of this Agreement the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the date qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company, be pending or contemplated as of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) The obligation of each No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Investor Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding shall be pending or, to the knowledge of the Company, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would not, individually or in the aggregate, have or result in a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Time of Sale Circular and the Final Offering Circular, there shall not have been any Material Adverse Change.
(e) The Notes shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in PORTAL.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to consummate the Notes than that on which the Notes were marketed.
(g) The Initial Purchaser shall have received on the Closing shall be subject to the following additional conditionsDate:
(i) certificates dated the Closing Date, signed by (1) no provision of any applicable law or regulation the Chief Executive Officer and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor principal financial or accounting officer of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control ActCompany, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities on behalf of the Company would be aggregated Company, to the effect that (a) the representations and warranties set forth in Section 3 hereof and in each of the Documents and the information in the Perfection Certificate are true and correct in all material respects with the Investor’s securities same force and effect as though expressly made at and as of the Company for purposes of any bank regulation or lawClosing Date, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other personsb) would represent more than 9.9% of any class of voting securities of the Company outstanding has performed and complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date hereof or since the date of the Closing most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after giving effect the date hereof), to the purchase knowledge of such officers, no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have or result in a Material Adverse Effect, (d) since the date of the Investor Shares contemplated herebymost recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than as described in the Final Offering Circular or contemplated hereby, the Company has not incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company and its Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition set forth in Section 10.3(e(financial or otherwise) or results of operations or prospects of the Branch Purchase Agreement Company and its Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and its Subsidiaries, taken as a whole, and (e) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company, certifying such matters as the Initial Purchaser may reasonably request.
(iii) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in the form previously approved by the Initial Purchaser.
(iv) the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Company, dated the Closing Date, in the form of Exhibit A attached hereto.
(v) an opinion, dated the Closing Date, of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(h) The Initial Purchaser shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇ & Company LLC, independent public accountants under the standards established by the American Institute of Certified Public Accountants, with respect to the Company’s acceptance , (A) a customary comfort letter, dated the date of this Agreement, in form and substance reasonably satisfactory to the proceeds of the Acceptable Financing (as defined Initial Purchaser, with respect to certain financial statements and certain financial information contained in the Branch Purchase Time of Sale Circular and the Final Offering Circular, and (B) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that ▇▇▇▇▇ ▇▇▇▇▇▇ & Company LLC reaffirms the statements made in its letter furnished pursuant to clause (A).
(i) The Initial Purchaser shall have received from Deloitte & Touche LLP, independent public accountants under the standards established by the American Institute of Certified Public Accountants, with respect to the Company, (A) a customary comfort letter, dated the date of this Agreement, in form and substance reasonably satisfactory to the Initial Purchaser, with respect to certain financial statements and certain financial information contained in the Time of Sale Circular and the Final Offering Circular, and (B) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that Deloitte & Touche LLP reaffirms the statements made in its letter furnished pursuant to clause (A).
(j) Each of this Agreement, the Indenture, the Collateral Agreements, the Intercreditor Agreement, and the Notes shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of each of the Documents.
(k) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any transaction contemplated in the Documents.
(l) The terms of each Document shall conform in all material respects to the description thereof in the Time of Sale Circular.
(m) The Credit Agreement Amendment shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of such document which shall be in form and substance reasonably satisfactory to the Initial Purchaser.
(n) On the Closing Date, the Company shall have paid or caused to have been paid in cash the reasonable fees and expenses of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel to the Initial Purchaser.
(o) The Collateral Agent shall have received (with a copy for the Initial Purchaser) on the Closing Date:
(i) appropriately completed copies of Uniform Commercial Code financing statements naming the Company as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Security Agreement;
(ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any security agreement previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Agreement, other than such financing statements that evidence Permitted Liens);
(iv) such other approvals, opinions, or documents as the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Collateral Agent; and
(v) the Collateral Agent and its counsel shall be satisfied that (i) the Lien granted to the Collateral Agent, for the benefit of the Secured Parties in the collateral is a valid and enforceable Lien; and (ii) no Lien exists on any of the collateral described above other than the Lien created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement, or waivedPermitted Liens.
(p) All Uniform Commercial Code financing statements or other similar financing statements and Uniform Commercial Code Form UCC-3 termination statements required pursuant to clause (m)(ii) and (iii) above (collectively, the “Filing Statements”) shall have been delivered to CT Corporation System or another similar filing service company acceptable to the Collateral Agent (the “Filing Agent”). The Filing Agent shall have acknowledged in a writing reasonably satisfactory to the Collateral Agent and its counsel (i) the Filing Agent’s receipt of all Filing Statements, (ii) that the Filing Statements have either been submitted for filing in the appropriate filing offices or will be submitted for filing in the appropriate offices within ten days following the Closing Date and (iii) that the Filing Agent will notify the Collateral Agent and its counsel of the results of such submissions within 30 days following the Closing Date.
(q) The Company, CitiSteel and CitiSteel PA, Inc. shall have entered into a Tax Sharing Agreement, and CitiSteel shall have obtained a favorable opinion as to the fairness of the financial terms of the Tax Sharing Agreement from Innovation Capital, LLC in satisfaction of the requirements of Section 4.14(a) of the indenture governing CitiSteel’s senior secured floating rate notes due 2010, which opinion shall be in form and substance reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions. (a) The obligation increased or new Commitments shall become effective as of the Investor to consummate Increase Effective Date; provided that:
(i) the Closing shall be subject to the condition that all representations and warranties of each Loan Party set forth in Article V and in each other statements of the Company Loan Document shall be true and correct in all material respects on and as of the date Increase Effective Date with the same effect as though made on and as of this Agreement and such date, except to the date of the Closing (except those extent such representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date), except for such failures ; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be so true and correct (without after giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would in all respects on such respective dates; provided, further, that, with respect to any Increase Amendment incurred for purposes of financing a Limited Condition Transaction, only the Specified Representations (and not have, individually any other representations or warranties in Article V or any of the aggregate, a Material Adverse Effect; the condition that the Company other Loan Documents or otherwise) shall have performed be required to be true and correct in all material respects on and as of the Increase Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of its obligations hereunder theretofore such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be performed true and correct (without after giving effect to any qualification as to materiality therein) in all respects on such respective dates;
(ii) no Default or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect Event of Default shall have occurred and be continuing with respect or would result from the Borrowing to either be made (x) in the Company or case of any Increase Amendment incurred for purposes of financing a Limited Condition Transaction, on the date of the execution and delivery of the applicable definitive purchase agreement in connection with such Limited Condition Transaction and (y) in the Company case of any other Increase Amendment, on the date of the Increase Effective Date;
(iii) after giving effect to such Incremental Term Loan Commitments, Incremental Revolving Commitments and Incremental Loans and the transactions contemplated by application of the Branch Purchase Agreement.
proceeds thereof, and assuming that all Incremental Revolving Commitments are borrowed in full, the Borrower shall be in compliance on a Pro Forma Basis with the financial covenants contained in Section 7.15 (with respect to Section 7.15(a) only, for the Test Period then most recently ended for which financial statements have been or are required to have been delivered pursuant to Section 6.01(a) or (b) The obligation ), as the case may be); provided, that, with respect to any Increase Amendment incurred for purposes of financing a Limited Condition Transaction, the Company to consummate the Closing Borrower shall be subject to in compliance on a Pro Forma Basis with the condition that all representations and warranties and other statements of the Investor shall be true and correct financial covenants contained in Section 7.15 as of the date of this Agreement the execution and the date delivery of the Closing applicable definitive purchase agreement in connection with such Limited Condition Transaction (except those representations and warranties that by their terms speak specifically with respect to Section 7.15(a) only, for the Test Period then most recently ended for which financial statements have been or are required to have been delivered pursuant to Section 6.01(a) or (b), as of the date of this Agreement or some other date shall be true and correct as of such datecase may be); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2iv) the purchase by the Investor Borrower shall deliver or cause to be delivered a certificate of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated Responsible Officer certifying compliance with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby)foregoing conditions; and
(3v) to the conditions set forth in Section 10 extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (A) customary legal opinions, board resolutions and officers’ certificates (including solvency certificates) consistent with those delivered on the Branch Purchase Agreement, Closing Date (conformed as appropriate) other than the condition set forth changes to such legal opinions resulting from a change in Section 10.3(e) law, change in fact or change to counsel’s form of the Branch Purchase Agreement with respect opinion reasonably satisfactory to the Company’s acceptance of Administrative Agent and (B) reaffirmation agreements and/or such amendments to the proceeds of Guaranty and the Acceptable Financing (Collateral Documents as defined in may be reasonably requested by the Branch Purchase Agreement), shall have been satisfied or waivedAdministrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Teladoc, Inc.)
Conditions. Notwithstanding any other provision, as a condition precedent to each Closing (a) The obligation defined below), all of the Investor to consummate the Closing shall following conditions must be subject to the condition that all representations and warranties satisfied:
1. All documents, instruments and other statements of the writings required to be delivered by Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date to Purchaser pursuant to any provision of this Agreement or some other date shall be in order to implement and effect the transactions contemplated herein have been fully executed and delivered, including without limitation those enumerated in Section II.B above;
2. The Common Stock is listed for and currently trading on the Trading Market, Company is in compliance with all requirements to maintain listing on the Trading Market, and there is no notice of any suspension or delisting with respect to the trading of the shares of Common Stock on such Trading Market;
3. The representations and warranties of Company set forth in this Agreement are true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all as if made on such date;
4. No material breach or default has occurred under any Transaction Document or any other agreement with Purchaser; 5. Company has the number of its obligations hereunder theretofore duly authorized shares of Common Stock reserved for issuance as required pursuant to be performed (without giving the terms of this Agreement;
6. There is not then in effect to any qualification as to materiality law, rule or Material Adverse Effect contained therein); and regulation prohibiting or restricting the condition that since transactions contemplated in any Transaction Document, or requiring any consent or approval which will not have been obtained, nor is there any pending or threatened proceeding or investigation which may have the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company effect of prohibiting or (y) the Company after giving effect to adversely affecting any of the transactions contemplated by this Agreement; no statute, rule, regulation, executive order, decree, ruling or injunction will have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits the Branch Purchase transactions contemplated by this Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation , and no judgmentactions, injunctionsuits or proceedings will be in progress, order pending or, to Company’s knowledge threatened, by any person other than Purchaser or decree shall any Affiliate of Purchaser, that seek to enjoin or prohibit the transactions contemplated hereby or prohibit by this Agreement; and
7. Prior to the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Actfirst Closing, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the InvestorCompany’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company accounts payable outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), Effective Date shall have been satisfied or waivedbe reduced by at least $250,000.00.
Appears in 1 contract
Conditions. The obligations of the Initial Purchasers to purchase the Notes under this Agreement are subject to the satisfaction of each of the following conditions or waiver thereof by the Initial Purchasers:
(a) The obligation of All the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company and its Subsidiaries contained in this Agreement and in each of the Documents shall be true and correct as of the date of this Agreement hereof and at the date Closing Date. On or prior to the Closing Date, the Company and each other party to the Documents (other than the Initial Purchasers) shall have performed or complied with all of the Closing (except those representations agreements and warranties that by satisfied all conditions on their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as satisfy would not havenot, individually or in the aggregate, have a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company to consummate after due inquiry, be pending or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding shall be pending or, to the knowledge of the Company after due inquiry, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would not, individually or in the aggregate, have a Material Adverse Effect, except as disclosed in the Final Offering Circular.
(d) Subsequent to the respective dates as of which data and information is given in the Final Offering Circular, there shall not have been any Material Adverse Change.
(e) The Notes shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL market.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(g) The Initial Purchasers shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (1) the Chief Executive Officer and (2) the principal financial or accounting officer of the Company, on behalf of the Company, to the effect that (a) the representations and warranties set forth in Section 4 hereof and in each of the Documents, are true and correct in all respects, as of the date hereof and at the Closing Date, (b) the Company and each other party to the Documents (other than the Initial Purchasers) have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which failure to satisfy would not, individually or in the aggregate, have a Material Adverse Effect), (c) at the Closing Date or since the date of the most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), other than as disclosed in the Final Offering Circular or contemplated hereby, no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), other than as disclosed in the Final Offering Circular or contemplated hereby, neither the Company nor any Subsidiary of the Company has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company and its Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and its Subsidiaries, taken as a whole, and there has not been any change in the Capital Stock or long-term indebtedness of the Company or any Subsidiary of the Company that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and its Subsidiaries, taken as a whole, and (e) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company and the Guarantors, certifying such matters as the Initial Purchasers may reasonably request.
(iii) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in a form satisfactory to the Initial Purchasers.
(iv) the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Company, and local counsel for the Company and the Guarantors, dated the Closing Date, in form reasonably satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(v) an opinion, dated the Closing Date, of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel to the Initial Purchasers, in form satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(h) The Initial Purchasers shall have received from E&Y, independent auditors, with respect to the Company, (A) a customary comfort letter, dated the date of the Final Offering Circular, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to the financial statements and certain financial information contained in the Final Offering Circular, and (B) a customary "bring down" comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect that E&Y reaffirms the statements made in its letter furnished pursuant to clause (A) above.
(i) Each of the Documents shall have been executed and delivered by all parties thereto, and the Initial Purchasers shall have received a fully executed original of each Document.
(j) The Initial Purchasers shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any transaction contemplated in the Documents.
(k) The Initial Purchasers shall have received the Final Offering Circular, and the terms of each Document shall conform in all material respects to the description thereof in the Final Offering Circular.
(l) None of the parties to any of the Documents are in breach or default in any material respect under their respective obligations thereunder.
(m) The Collateral Agent shall have received on the Closing Date:
(i) appropriately completed copies of Uniform Commercial Code financing statements naming the Company and the Guarantors as debtors and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Security Agreement;
(ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any Security Agreement previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Agreement, other than such financing statements that evidence Permitted Liens);
(iv) such other approvals, opinions, or documents as the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Collateral Agent; and
(v) the Collateral Agent and its counsel shall be satisfied that, concurrent with the purchase of the Notes hereunder by the Initial Purchasers, (i) the Lien granted to the Collateral Agent, for the benefit of the Secured Parties in the collateral described above is of the priority described in the Final Offering Circular; and (ii) no Lien exists on any of the collateral described above other than the Lien created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement, in each case subject to the condition that all representations and warranties and other statements Permitted Liens.
(n) The Initial Purchasers shall have received prior to or contemporaneously with the Closing a payoff letter from the administrative agent under the Company's existing credit agreement (the "Existing Credit Agreement").
(o) All information certified to by an officer of the Investor Company in the Perfection Certificate, to be dated as of the Closing shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performedDate.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
Appears in 1 contract
Conditions. (a) The obligation of any Agent, as agent of the Investor Company, at any time ("Solicitation Time") to consummate solicit offers to purchase the Closing ----------------- Securities, the obligation of any Agent to purchase Securities as principal pursuant to any Terms Agreement or otherwise, and the obligation of any other purchaser to purchase Securities shall in each case be subject to (1) the condition that all representations and warranties and other statements of the Company shall be herein and all statements of officers of the Company made in any certificate furnished pursuant to the provisions hereof are true and correct (i) in the case of an Agent's obligation to solicit offers to purchase Securities, at and as of such Solicitation Time and (ii) in the case of any Agent's or any other purchaser's obligation to purchase Securities, at and as of the time the Company accepts the offer to purchase such Securities and, as the case may be, at and as of the related Time of Delivery or time of purchase; (2) the condition that at or prior to such Solicitation Time, time of acceptance, Time of Delivery or time of purchase, as the case may be, the Company shall have complied with all its agreements and all conditions on its part to be performed or satisfied hereunder prior to such relevant time; and (3) the following additional conditions when and as specified:
(a) Prior to such Solicitation Time or corresponding Time of Delivery or time of purchase, as the case may be:
(i) and subsequent to the date of this Agreement Agreement, there shall not have occurred any downgrading, nor shall any notice have been given of (A) any intended or potential downgrading or (B) any review or possible change that indicates a downgrading or possible downgrading in the rating accorded any securities of or guaranteed by the Company by any Rating Organization;
(ii) and the date of the Closing (except those representations and warranties that by their terms speak specifically as of subsequent to the date of this Agreement or some other date Agreement, there shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to not have been any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually material adverse change in the aggregate, a Material Adverse Effect; the financial condition that or results of operations of the Company shall have performed and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in all material respects all the Final Memorandum, the effect of its obligations hereunder theretofore which in the judgment of the applicable Agent makes it impracticable or inadvisable to be performed market the Securities on the terms and in the manner contemplated in the Final Memorandum; and
(without giving effect iii) and subsequent to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect of this Agreement, there shall not have occurred and be continuing with respect to either (xa) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (b) any banking moratorium declared by U.S. Federal or New York authorities; or (yc) any outbreak or escalation of major hostilities in which the Company after giving United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the applicable Agent, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the transactions contemplated by sale of and payment for the Branch Purchase AgreementSecurities.
(b) The In the case of a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, Dechert, counsel for the Company, shall have furnished to the relevant Agent or Agents their written opinion, dated the Time of Delivery, in form and substance satisfactory to such Agent or Agents, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with corporate power and authority to own its properties and conduct its business as described in the Offering Memorandum;
(ii) the Indenture has been duly authorized, executed and delivered by the Company, has been qualified under the Trust Indenture Act and constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject, as to consummate enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights, to public policy considerations and to general equity principles; the Closing shall Indenture complies as to form in all material respects with the requirements of the Trust Indenture Act; the Securities, the Exchange Securities and the Private Exchange Securities have been duly authorized by the Company and, when the terms thereof have been established and when they have been executed, authenticated, issued and delivered in the manner provided in the Indenture and, in the case of the Securities, sold through an Agent as agent or to any Agent as principal pursuant to a Terms Agreement, will constitute, valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights, and to general equity principles (it being understood that such counsel may assume that (a) at the time of such issuance, sale and delivery of each Security, the authorization of the Securities will not have been modified or rescinded and there will not have occurred any change in law affecting the validity, legally binding character or enforceability of such Security, and (b) neither the issuance, sale and delivery of any Security, nor any of the terms of such Security, nor compliance by the Company with such terms, will violate any applicable law, any agreement or instrument then binding upon the Company or any restriction imposed by any court or governmental body having jurisdiction over the Company, in each case to the extent not in effect on the date of such opinion);
(iii) no consent, approval, authorization or order, license, registration or qualification of or with any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement and any applicable Terms Agreement, the Registration Rights Agreement or the Indenture in connection with the issuance or sale of the Securities by the Company, except such as may be required under state securities or Blue Sky laws (it being understood that such counsel may assume with respect to each particular Security that the inclusion of any alternative or additional terms in such Security that are not currently specified in the form of Securities approved by the actions of the authorized officers would not require the Company to obtain any regulatory consent, authorization or approval or make any regulatory filing in order for the Company to issue sell and deliver such Security);
(iv) the execution, delivery and performance of the Indenture, this Agreement and any applicable Terms Agreement, the Registration Rights Agreement and the issuance and sale of the Securities and compliance with the terms and provisions of the Indenture, this Agreement and any applicable Terms Agreement, the Registration Rights Agreement and the terms of the Securities described in the Offering Memorandum will not conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any material statute, rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Company, any subsidiary incorporated in the United States of America or any of their respective properties known to such counsel, or the charter or by-laws of the Company or any "significant subsidiary" (as defined in Regulation S-X under the Securities Act) of the Company; and the Company has full power and authority to authorize, issue and, in the case of the Securities, sell, the Securities, the Exchange Securities and the Private Exchange Securities as contemplated by this Agreement and any applicable Terms Agreement and the Registration Rights Agreement (it being understood that such counsel may assume with respect to each particular Security that the inclusion of any alternative or additional terms in such Security that are not currently specified in the form of Securities approved by the actions of the authorized officers will not cause the issuance, sale or delivery of such Security, the terms of such Security, or the compliance by the Company with such terms, to violate any of the statutes, rules, regulations or orders, or to result in a default under or a breach of any of the agreements, specified in this paragraph);
(v) such counsel have no reason to believe the Offering Memorandum relating to the Securities, as of its date, or any amendment thereto, as of its date, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial and statistical data contained in the Offering Memorandum;
(vi) this Agreement has been duly authorized, executed and delivered by the Company; the Registration Rights Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except that (i) the enforceability thereof may be subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights, to public policy considerations and to general equity principles, (ii) any rights to indemnity and contribution thereunder may be limited by federal and state securities laws and public policy considerations and (iii) the condition that enforceability of provisions imposing liquidated damages, penalties or an increase in interest rate upon the occurrence of certain events may be limited in certain circumstances;
(vii) each document filed pursuant to the Exchange Act (other than the financial statements, schedules and other financial and statistical data included therein, as to which such counsel need express no opinion) and incorporated or deemed to be incorporated by reference in the Offering Memorandum complied as to form in all material respects with the applicable requirements of the Exchange Act when so filed;
(viii) the Securities satisfy the requirements set forth in Rule 144A(d)(3) under the Securities Act; and
(ix) in reliance upon the representations and warranties made by the Company and other statements the Agents in this Agreement and any applicable Terms Agreement, the offer and sale of the Investor shall be true Securities by the Company and correct as the initial resale of such Securities by the date Agents in accordance with the provisions of this Agreement and any applicable Terms Agreement are exempt from the date registration requirements of the Closing Securities Act, assuming (except those i) that the purchasers who buy the Securities in the initial resales are qualified institutional buyers (as defined in Rule 144A under the Securities Act) or non-U.S. Persons (as defined in Rule 902 under the Securities Act) and (ii) the accuracy of the Agents' representations and warranties that by their terms speak specifically as agreements and those of the date of Company contained in this Agreement or some other date shall be true and correct as of such date); and the condition Terms Agreement regarding the absence of a general solicitation in connection with the sale of the Securities to the Agents and the initial resales thereof (it being understood that such counsel need express no opinion as to any subsequent resale of any Securities). Such counsel in rendering such opinion may rely as to certain matters of fact on certificates of officers of the Investor Company and of public officials; provided, however, that such certificates shall have performed all been delivered to the Agents on or prior to the Time of its obligations hereunder theretofore to be performedDelivery.
(c) The obligation In the case of a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, ▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, General Counsel and Secretary of the Company, shall have furnished to the relevant Agent or Agents his written opinion, dated the Time of Delivery, in form and substance satisfactory to such Agent or Agents, to the effect that:
(i) no consent, approval or authorization of any third party is required for the consummation of the transactions contemplated by this Agreement and any applicable Terms Agreement, the Registration Rights Agreement or the Indenture in connection with the issuance or sale of the Securities by the Company, except such as have been obtained and made and are in full force and effect and such as may be required under state securities or Blue Sky laws;
(ii) the execution, delivery and performance of the Indenture, the Registration Rights Agreement and the applicable Terms Agreement (including the provisions of this Agreement) and the issuance and, in the case of the Securities, the sale of the Securities, the Exchange Securities and the Private Exchange Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under (including, without limitation, any event or condition which, with notice or lapse of time, or both, would constitute a default under), any material agreement or instrument known to such counsel to which the Company or any subsidiary is a party or by which the Company or any subsidiary is bound or to which any of the properties of the Company or any subsidiary is subject;
(iii) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with corporate power and authority to own its properties and conduct its business as described in the Offering Memorandum;
(iv) the Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect on the Company and its subsidiaries, taken as a whole;
(v) each of the Investor Company's subsidiaries has been duly incorporated and is validly existing as a corporation under the laws of its jurisdiction of incorporation with corporate power and authority to own its properties and conduct its business as described in the Offering Memorandum and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified and in good standing would not have a Material Adverse Effect on the Company to consummate and its subsidiaries taken as a whole; and all of the Closing shall outstanding shares of capital stock of each subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except, in the case of foreign subsidiaries, for directors' qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(vi) this Agreement has been duly authorized, executed and delivered by the Company; the Registration Rights Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except that (i) the enforceability thereof may be subject to the following additional conditions:
(1) no provision bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of any applicable law general applicability relating to or regulation affecting creditors' rights, to public policy considerations and no judgmentto general equity principles, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates rights to become a bank holding company; or indemnity and contribution thereunder may be limited by federal and state securities laws and public policy considerations and (iii) cause the Investor, together with any other person whose securities enforceability of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.provisions imposing liquidate
Appears in 1 contract
Conditions. In addition to being subject to the satisfaction of the conditions precedent contained in Article 5 hereof, the obligation of the Issuing Bank to issue any Letter of Credit is subject to the following conditions precedent having been satisfied in a manner satisfactory to the Issuing Bank and the Agent:
(a) The obligation Borrower shall have delivered to the Issuing Bank at such times and in such manner as the Issuing Bank may prescribe an application in form and substance satisfactory to the Issuing Bank for the issuance of the Investor Letter of Credit and such documents as may be required pursuant to consummate the Closing terms thereof, and the form and terms of the proposed Letter of Credit shall be subject satisfactory to the condition that all representations Agent and warranties and other statements of the Company shall be true and correct Issuing Bank;
(b) as of the date of this Agreement and issuance, no order of any court, arbitrator or public authority having jurisdiction or authority over the date proposed issuer shall purport by its terms to enjoin or restrain money center banks generally from issuing letters of credit of the Closing (except those representations type and warranties that by their terms speak specifically as in the amount of the date proposed Letter of this Agreement Credit and no law, rule or some other date regulation applicable to money center banks generally and no request or directive (whether or not having the force of law) from any public authority with jurisdiction over money center banks generally shall be true and correct as prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the issuance of such date)Letter of Credit, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effectcase may be; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.and
(c) The obligation of each of the Investor Borrower shall have appointed the Agent as its attorney, with full power and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not authority: (i) require to sign and/or endorse the Investor Borrower's name upon any warehouse or any other receipts or Letter of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulatorCredit applications; (ii) require to sign the Investor or any Borrower's name on bills of its affiliates to become a bank holding companylading; or (iii) cause to clear inventory through U.S. Customs in the Investor, together with any other person whose securities Borrower's name or the name of the Company would be aggregated with Agent, and to sign and deliver to U.S. Customs officials powers of attorney in the Investor’s securities Borrower's name for such purpose; (iv) to complete in the Borrower's name or Agent's name any order, sale or transaction, obtain the necessary documents in connection therewith and collect the proceeds thereof; and (v) to do such other acts and things as are necessary to carry out the terms of this Agreement in order to enable the Agent to obtain payment of all obligations of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waivedBorrower hereunder.
Appears in 1 contract
Conditions. (aI) The obligation obligations of the Investor Company to consummate sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing shall be Date are subject to the condition that all representations the Prospectus, as amended or supplemented, in relation to the Shares, shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period described for such filing by the rules and warranties regulations under the Securities Act, and other statements as of the Closing Date and each Option Closing Date, no stop order suspending the effectiveness of the Registration Statement shall be in effect or shall be pending or, to the knowledge of the Company, threatened by the Commission; and no notice objecting to its use pursuant to Rule 401(g)(2) shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall have been instituted or threatened. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 3(a)(62) under the Exchange Act; and
(ii) there shall be true not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and correct its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date)that, except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregateUnderwriters’ judgment, a Material Adverse Effect; is material and adverse and that makes it, in the condition that Underwriters’ judgment, impracticable to market the Company shall have performed Shares on the terms and in all material respects all the manner contemplated in the Time of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase AgreementSale Prospectus.
(b) The obligation Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(I)(a)(i) above and to the effect that the representations and warranties of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be contained in this Agreement are true and correct as of the date of this Agreement Closing Date and that the date Company has complied with all of the Closing (except those representations agreements and warranties that by their terms speak specifically as satisfied all of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of conditions on its obligations hereunder theretofore part to be performedperformed or satisfied hereunder on or before the Closing Date. Any officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The obligation Underwriters shall have received on the Closing Date an opinion, including an opinion with regard to the Company’s qualification and taxation as a REIT, and a negative assurance letter of Cravath, Swaine & ▇▇▇▇▇ LLP, outside counsel for the Company, each dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(d) The Underwriters shall have received on the Closing Date an opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, tax counsel for the Company, with regard to the Company’s qualification and taxation as a REIT, dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of the General Counsel or Associate General Counsel to the Company, dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion and a negative assurance letter of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, each dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(g) The Underwriters shall have received, on each of the Investor date hereof and the Company to consummate Closing Date, a letter dated the date hereof or the Closing shall be subject Date, as the case may be, in form and substance satisfactory to the following additional conditions:
(1) no provision of any applicable law or regulation Underwriters, from PricewaterhouseCoopers LLP, independent public accountants, containing statements and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any information of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates type ordinarily included in accountants’ “comfort letters” to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement underwriters with respect to the Company’s acceptance financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than three business days prior to the Closing Date.
(h) The Underwriters shall have received, on each of the proceeds date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants to Target, containing statements and information of the Acceptable Financing (type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the consolidated financial statements of Target as defined of and for the year ended December 31, 2016 contained in the Branch Purchase Agreement)Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than three business days prior to the Closing Date.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company listed in Exhibit B hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Vice President and Chief Financial Officer of the Company, substantially in the form of Exhibit C hereto.
(k) The Shares shall have been satisfied approved for listing on the New York Stock Exchange (“NYSE”), subject only to official notice of issuance.
(l) On or waivedprior to the Closing Date, the Company shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
(m) The representations and warranties of the Company contained herein shall be true and correct on and as of the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Crown Castle International Corp)
Conditions. (a) Section 7.1 Conditions to Each Party's Obligation to Effect the Merger. The obligation respective obligations of each party to effect the Investor to consummate the Closing Merger shall be subject to the condition fulfillment at or prior to the Closing Date of the following conditions:
(a) The Company Requisite Vote shall have been obtained.
(b) The waiting period applicable to the consummation of the Merger shall have expired or been terminated under the HSR Act.
(c) None of the parties hereto shall be subject to any decree, order or injunction of a court of competent jurisdiction, U.S. or foreign, which prohibits the consummation of the Merger; and no statute, rule or regulation shall have been enacted by any governmental authority of competent jurisdiction which prohibits or makes unlawful the consummation of the Merger.
(d) The Registration Statement shall have become effective and no stop order with respect thereto shall be in effect and no proceedings for that purpose shall have been commenced or threatened by the SEC.
(e) The Parent Common Shares to be issued pursuant to the Merger shall have been authorized for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 7.2 Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger shall be subject to the fulfillment or waiver by the Company at or prior to the Closing Date of the following conditions:
(a) (i) Parent shall have performed in all material respects its covenants and agreements contained in this Agreement required to be performed on or prior to the Closing Date and (ii) the representations and warranties of Parent and Sub contained in this Agreement and in any document delivered in connection herewith (A) to the extent qualified by Parent Material Adverse Effect or any other statements of the Company materiality qualification shall be true and correct and (B) to the extent not qualified by Parent Material Adverse Effect or any other materiality qualification shall be true and correct in all material respects, in each case as of the date of this Agreement and the date as of the Closing Date (except those for representations and warranties that by their terms speak specifically made as of the date of this Agreement or some other date shall a specified date, which need be true and correct only as of the specified date) ; provided that the condition set forth in clause (ii) shall be deemed to have been satisfied unless such date), except for such failures to be so true breaches of representations and correct warranties (without giving effect regard to any qualification as to materiality or Parent Material Adverse Effect contained therein) as would not haveor any other materiality qualification or threshold), individually or in the aggregate, would reasonably be expected to have a Parent Material Adverse Effect; and the condition Company shall have received a certificate of Parent, executed on its behalf by its President or a Senior Vice President of Parent, dated the Closing Date, certifying to such effect.
(b) The Company shall have received the opinion of Crowe & ▇▇▇▇evy, ▇▇▇▇▇el to the Company, in form and substance reasonably satisfactory to the Company, on the basis of certain facts, representations and assumptions set forth in such opinion, dated the Closing Date, a copy of which shall be furnished to Parent, to the effect that (i) the Merger will qualify for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code and Parent, Sub and the Company will be "parties" to a reorganization within the meaning of Section 368(b) of the Code, (ii) no gain or loss will be recognized by the Company in connection with the Merger and (iii) a shareholder of the Company that is a United States Person (within the meaning of Section 7701(a)(30) of the Code) and that receives both (A) Parent Common Shares and (B) cash in the Merger in exchange for Company Shares will recognize realized gain only to the extent of the lesser of such realized gain or the cash received in the exchange (but will not recognize any loss). In rendering such opinion, such counsel shall be entitled to receive and rely upon representations of officers of the Company, Sub and Parent as to such matters as such counsel may reasonably request.
Section 7.3 Conditions to Obligation of Parent to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the fulfillment or waiver by Parent at or prior to the Closing Date of the following conditions:
(i) The Company shall have performed in all material respects all of its obligations hereunder theretofore covenants and agreements contained in this Agreement required to be performed on or prior to the Closing Date and (without giving effect ii) the representations and warranties of the Company contained in this Agreement and in any document delivered in connection herewith (A) to any qualification as to materiality or the extent qualified by Company Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and any other statements of the Investor materiality qualification shall be true and correct and (B) to the extent not qualified by Company Material Adverse Effect or any other materiality qualification shall be true and correct in all material respects, in each case as of the date of this Agreement and the date as of the Closing Date (except those for representations and warranties that by their terms speak specifically made as of the date of this Agreement or some other date shall a specified date, which need be true and correct only as of such the specified date); and the condition provided that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in clause (ii) shall be deemed to have been satisfied unless such breaches of representations and warranties (without regard to Company Material Adverse Effect or any other materiality qualification or threshold), individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect; and Parent shall have received a certificate of the Company, executed on its behalf by its President or a Vice President of the Company, dated the Closing Date, certifying to such effect.
(b) Parent shall have received the opinion of McGuireWoods LLP, counsel to Parent, in form and substance reasonably satisfactory to Parent, on the basis of certain facts, representations and assumptions set forth in such opinion, dated the Closing Date, a copy of which will be furnished to the Company, to the effect that (i) the Merger will qualify for United States federal income tax purposes as a reorganization within the meaning of Section 10.3(e368(a) of the Branch Purchase Agreement Code and Parent, Sub and the Company will be "parties" to a reorganization within the meaning of Section 368(b) of the Code and (ii) no gain or loss will be recognized in connection with respect the Merger by any corporation which is a party to the Company’s acceptance reorganization. In rendering such opinion, such counsel shall be entitled to receive and rely upon representations of officers of the proceeds of the Acceptable Financing (Company, Sub and Parent as defined in the Branch Purchase Agreement), shall have been satisfied or waivedto such matters as such counsel may reasonably request.
Appears in 1 contract
Conditions. (a) The obligation This policy any endorsement hereon and the schedule shall be read together as one contract and any word or expression to which a specific meaning has been attached in any part of this policy or of the Investor schedule shall bear such specific meaning wherever it may appear.
1. The Insured shall take all reasonable precautions to consummate prevent or minimize injury, illness, loss or damage which may give rise to a claim under this policy.
2. In the Closing event of any incident or circumstance which may give rise to a claim for indemnity under this policy, the Insured shall give immediate notice in writing to the Insurer. Such notice having been given not later than 30 days after expiry of the policy period, any claim to which that incident or circumstance has given rise, which may be made within 36 months after the expiry of the period specified in the schedule, shall be deemed for the purpose of this policy to have been made during the existence hereof.
3. The Insured shall not admit liability or settle or make or promise any payment in respect of any claim which may be the subject to of indemnity hereunder, or incur any costs or expenses in connection therewith, without the condition that all representations and warranties and other statements written consent of the Company Insurer which shall be true entitled to take over and correct as conduct in the name of the Insured the defence and/or settlement of any such claim, for which purpose the Insured shall give all the information and assistance that the Insurer may reasonably require. The Insurer will not settle any claim without the consent of the Insured. If, however, the Insured refuses to consent to any settlement recommended by the Insurer and shall elect to contest or continue any legal proceedings, then the liability of the Insurer shall not exceed the amount for which the claim could have been so settled plus the costs and expenses incurred with its consent up to the date of such refusal.
4. The Insurer may pay to the Insured the maximum sum payable under this Agreement policy in respect of any occurrence or any lesser sum for which the claim or claims arising from such occurrence can be settled and the date Insurer shall not be under any further liability in respect of that occurrence except for the payment of costs and expenses of litigation incurred prior to such payment.
5. If at the time of any occurrence or claim there is or but for the existence of this policy would be any other policy of indemnity or insurance in favour of or effected by or on behalf of the Closing (Insured applicable to such occurrence or claim the Insurer shall not be liable under this policy to indemnify the Insured in respect of such occurrence or claim except those representations as far as concerns any excess beyond the amount which would be payable under such other indemnity or insurance had this policy not been effected.
6. Where a retroactive date is specified in the schedule, this insurance does not apply to claims made against the Insured by reason of any negligent act, error or omission committed, occurred or alleged to have been committed or occurence prior to the said retroactive date.
7. The Insured shall at all times
a) maintain accurate descriptive records of all professional services which shall be available for inspection and warranties that use by their terms speak specifically the Insurer or its duly appointed representatives insofar as they pertain to any claim hereunder,
b) give to the Insurer or its duly appointed representatives such information, assistance and signed statements as the Insurer may require, and
c) assist in the defence of any claim at its own expense;
8. The due observance and fulfilment of the date terms, provisions and conditions so far as they relate to anything to be done or complied with by the Insured and the truth of the statements in the proposal made by him (which shall be the basis of this Agreement or some other date contract and held to be incorporated herein) shall be true conditions precedent to any liability of the Insurer.
9. In the event of any dispute arising between the Insured and correct the Insurer this insurance shall be governed by the law of the country specified in the schedule whose courts shall be the only ones having jurisdiction in any dispute arising hereunder.
10. It is hereby agreed that if any payment is made under this insurance in respect of a claim, the Insurer is thereupon subrogated to all the Insured's rights of recovery on relation thereto.
11. If the Insured makes any claim knowing the same to be fraudulent or false, as regards the amount or otherwise, this insurance shall become void and all claims thereunder shall be forfeited.
12. This insurance shall not apply in connection with any insurance and shall only pay losses if and so far as they are not recoverable under any other insurance.
13. The indemnity provided by this policy is restricted to apply in respect of a) compensation resulting from judgement rendered by or obtained from a court of competent jurisdiction in the territory stated in the schedule b) charges, expenses and legal costs incurred and recoverable in the territory stated in the schedule.
14. In the absence of a local legal regulations regarding the cancellation this insurance may be cancelled by the Insured at any time by written notice to the Insurer. This insurance may also be cancelled by or on behalf of the Insurer by registered, certified or other first class mail to the Insured's address as shown in the schedule, containing written notice about when, not less than 30 days thereafter, the cancellation shall be effective. The mailing of such date), except for such failures to notice as aforesaid shall be so true sufficient proof of notice and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company this insurance shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since terminate at the date hereof no Material Adverse Effect and hour specified in such notice.
15. If this insurance is cancelled by the Insured, the Insurer shall have occurred and refund the customary short rate proportion of the premium hereon. If this insurance is cancelled by, or on behalf of, the Insurer for any reason other than non-payment of the premium or any breach of contract by the Insured, the Insurer shall refund the pro rata proportion of the premium hereon.
16. Payment or tender of any unearned premium by the Insurer shall not be continuing with respect to either (x) the Company or (y) the Company after giving effect a condition precedent to the transactions contemplated by the Branch Purchase Agreementeffectiveness of cancellation but such payment shall be made as soon as practicable.
(b) The obligation 17. If the period of the Company to consummate the Closing shall be subject limitation relating to the condition that all representations and warranties and other statements giving of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that notice is prohibited or made void by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgmentstatutory provision, injunction, order or decree such period shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power be amended so as to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect be equal to the purchase minimum period of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied notice permitted by such law or waivedstatutory provision.
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Conditions. (a) The obligation of the Investor to consummate purchase and acquire the Closing Shares hereunder shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as on each of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and Date, the condition that the Investor Company shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor , and the Company to consummate the Closing shall be subject to the following additional conditions:
(1a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing, no provision stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, and the Investor shall have received the Prospectus in accordance with the federal securities laws.
(b) Prior to the Closing Date, there shall not have occurred any change, or any development involving a prospective change, which would constitute a Material Adverse Effect, and that makes it impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(c) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Shares or materially and adversely affect or reasonably be believed to materially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any applicable law other nature by any federal or regulation and no judgment, injunction, order or decree state court of competent jurisdiction shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any have been issued as of the Investor Shares;Closing Date which would prevent the issuance or sale of the Shares or materially and adversely affect or reasonably be believed to materially and adversely affect the business or operations of the Company.
(2d) The Investor shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, counsel to the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates Company, such counsel’s written opinion, addressed to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of dated the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions Date, in form and substance as set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(eExhibit B.
(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), The Shares shall have been satisfied or waived.authorized for quotation on the NASDAQ Global Market, Inc.
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Conditions. 10.1 Sun's obligation to consummate the acquisition of the Projects is expressly conditioned upon the following, each of which constitutes a condition precedent to Sun's obligations hereunder which, if not performed or determined to be acceptable to Sun on or before the Contribution Date (unless a different time for performance is expressly provided herein), shall permit Sun, at its sole option, to declare this Agreement null and void and of no further force and effect by written notice to the Contributors, whereupon neither the Contributors nor Sun shall have any further obligations hereunder to the other except for the Contributors' obligation to pay legal fees for the drafting of this Agreement as described in Section 20.1 and reimburse Sun for certain expenses as set forth herein (provided that Sun shall have the right to waive any one or all of said conditions).
(a) The obligation of On the Investor Contribution Date, title to consummate the Closing Projects shall be subject in the condition required herein, and the Title Company shall be in a position to issue the requisite policy of title insurance pursuant to the condition that Commitment.
(b) The Contributors shall have complied with and performed all representations covenants, agreements and conditions on their part to be performed under this Agreement within the time herein provided for such performance.
(c) The Contributors' representations, warranties and other statements of the Company agreements contained herein are and shall be true and correct as of the date of this Agreement hereof and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed Contribution Date in all material respects all of its obligations hereunder theretofore to be performed respects.
(without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); d) From and the condition that since after the date hereof no Material Adverse Effect to the Contribution Date there shall have occurred and be continuing with respect been no material adverse change in or to either (x) any of the Company Projects or (y) the Company after giving effect to the transactions contemplated by the Branch Purchase Agreementbusiness conducted thereon.
(be) The obligation Sun shall have obtained, at its sole cost and expense, prior to the expiration of the Company to consummate Investigation Period, a "Phase 1" environmental audit (the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c"Environmental Audit") The obligation of each of the Investor Projects, including the Land and Improvements included within each such Project, addressed to Sun and its designated lenders, conducted by an independent environmental investigation and testing firm approved by Sun in its sole discretion, reflecting that each Project is free of and does not contain any Hazardous Materials, and otherwise in form and content acceptable to Sun, in its sole discretion. If any Environmental Audit discloses any condition which requires further review or investigation, Sun may obtain, at its sole expense, a "Phase 2" environmental audit of such Project in form and content acceptable to Sun, in its sole discretion, and the Company to consummate the Closing Contribution Date shall be subject extended to the following additional conditions:
(1) no provision of any applicable law or regulation provide Sun with sufficient time to receive, review and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(approve such Phase 2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor or any of its affiliates to file a prior notice under the Change in Bank Control Act, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to the Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), shall have been satisfied or waived.
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Conditions. If with respect to the Borrowed Securities, (ai) The obligation the Company has not performed all of the Investor to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Company shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore required to be performed (without giving effect to any qualification as to materiality by it under this Agreement on or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect prior to the transactions contemplated by the Branch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(2) the purchase by the Investor of the Investor Shares shall not (i) require the Investor Time or any Date of its affiliates to file a prior notice under Delivery, as the Change in Bank Control Actcase may be, or otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Investor or any of its affiliates to become a bank holding company; or (iii) cause the Investor, together with any other person whose securities of the Company would be aggregated with the Investor’s securities of the Company for purposes of any bank regulation or law, to collectively be deemed to own, control or have the power to vote securities which (assuming, for this purpose only, full conversion and/or exercise of such securities by the Investor and such other persons) would represent more than 9.9% of any class of voting securities of the Company outstanding on the date of the Closing (after giving effect to the purchase of the Investor Shares contemplated hereby); and
(3) the conditions set forth in Section 10 5 hereof have not been satisfied on or prior to the Closing Time or any Date of Delivery, as the case may be, or (iii) any of the Branch Purchase Agreement, other than the condition conditions set forth in Section 10.3(ethe applicable Forward Sale Agreement shall not have been satisfied on or prior to the Closing Time or any Date of Delivery, as the case may be, (clauses (i) through (iii), together, the “Conditions”), then the Forward Seller, in its sole discretion, may elect not to borrow and deliver for sale to the Underwriters the Borrowed Securities otherwise deliverable on such date. In addition, in the event the Forward Seller determines that in connection with establishing its commercially reasonable hedge position, in its sole judgment, the Forward Seller (or its affiliate) (x) is unable, after using commercially reasonable efforts, to borrow and deliver for sale the full number of Borrowed Securities to be borrowed and sold pursuant to this Agreement at the Branch Purchase Agreement Closing Time or on such Date of Delivery or (y) would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so with respect to the Company’s acceptance all or any portion of the proceeds such full number of the Acceptable Financing Borrowed Securities, then, in each case and upon notice delivered no later than 9:00 A.M., (as defined in the Branch Purchase AgreementEastern time), at the Closing Time or Date of Delivery, as applicable, the Forward Seller shall have been satisfied only be required to deliver for sale to the Underwriters on the Closing Time or waivedsuch Date of Delivery, as the case may be, the aggregate number of shares of Common Stock that the Forward Seller or its affiliate is able to borrow in connection with establishing its hedge position at or below such cost.
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