Method of Termination. This Agreement constitutes the binding and irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby subject to the terms and conditions contained herein, the consideration for which is the covenants set forth in Sections 2, 3 and 4, and expenditures and obligations incurred and to be incurred by Purchaser, on the one hand, and by Seller, the Company and the Subsidiary, on the other hand, in respect of this Agreement, and this Agreement may be terminated or abandoned only as follows: 12.1.1. By the unanimous written consent of Seller and Purchaser, notwithstanding prior approval (if any) by the board of directors of either Purchaser or Seller; 12.1.2. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Seller may terminate this Agreement by written notice given to Purchaser if Seller has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9; 12.1.3. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Purchaser may terminate this Agreement by written notice given to Seller if Purchaser has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9; or 12.1.4. By either Seller or Purchaser if (a) there shall be any Law that makes consummation of the transactions contemplated herein illegal or otherwise prohibited; or (b) any judgment, injunction, order or decree permanently enjoining any of the parties hereto from consummating the transactions contemplated herein is entered and such judgment, injunction, order or decree shall become final and non-appealable. Notwithstanding anything in this Section 12.1 to the contrary, no party hereto that is in breach of a material obligation under this Agreement shall be entitled to terminate this Agreement except with the prior written consent of the other party hereto.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Energy West Inc), Stock Purchase Agreement (Energy West Inc)
Method of Termination. This Agreement constitutes the binding and irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby subject to the terms and conditions contained herein, the consideration for which is the covenants set forth in Sections 2, 3 and 4, and expenditures and obligations incurred and to be incurred by Purchaser, on the one hand, and by Seller, the Company and the Subsidiary, on the other hand, in respect of this Agreement, and this Agreement may be terminated and the transactions herein contemplated may be abandoned at any time on or abandoned only as followsbefore the Closing:
12.1.1. By the unanimous (a) by mutual written consent of Seller and Purchaser, notwithstanding prior approval the Parties;
(if anyb) by the board of directors of either Purchaser or Seller;
12.1.2. If Purchasers by giving written notice to the Sellers at any condition time prior to the Closing under in the event the Sellers have breached any representation, warranty or covenant contained in this Agreement in any material respect, the Purchasers have notified the Sellers of the breach and the breach has continued without cure for a period of fifteen (15) days after the notice of breach;
(c) by the Sellers by giving written notice to the Purchasers at any time after the Hard Date in the event the Purchasers have breached any representation, warranty, covenant, agreement or undertaking contained in this Agreement (other than those contained in Section 5.2(b)) in any material respect, the Sellers have notified the Purchasers of the breach and the breach has continued without cure for a period of fifteen (15) days after the notice of breach;
(d) by the Purchasers pursuant to Sections 8 and 9 1.8, 4.8(b), 6.8, 6.11, Article VIII or this Article X;
(e) by either Party by giving written notice to the other Party, if a court of competent jurisdiction or other Governmental Authority shall have issued a nonappealable final order, decree or ruling or taken any other action, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the transactions contemplated hereby, unless the Party relying on such order, decree or ruling or other action has not been satisfied complied in all material respects with its obligations under this Agreement;
(f) by the Purchasers after the Hard Date for any reason (or waivedno reason), if the Purchasers deliver notice to the Sellers; provided, that, such termination will not be effective until the Purchasers deliver notice to the Escrow Agent to release and pay the Deposit to the Sellers; each Seller acknowledges and agrees that the Purchasers have no obligation to give the Sellers prior notice, or to negotiate in good faith with the Sellers regarding modifying the terms of this Agreement or the transactions contemplated hereby, before the Purchasers deliver the notice of termination pursuant to this Section 10.1(f); and
(g) by 5:00 p.m. either Party if the Closing shall not have been consummated on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Seller may terminate this Agreement by written notice given to Purchaser if Seller has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9;
12.1.3. If any condition prior to the Closing under Sections 8 Date Deadline; and 9 has not been satisfied (or waived) by 5:00 p.m. on provided, further, that the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Purchaser may terminate this Agreement by written notice given to Seller if Purchaser has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9; or
12.1.4. By either Seller or Purchaser if (a) there shall be any Law that makes consummation of the transactions contemplated herein illegal or otherwise prohibited; or (b) any judgment, injunction, order or decree permanently enjoining any of the parties hereto from consummating the transactions contemplated herein is entered and such judgment, injunction, order or decree shall become final and non-appealable. Notwithstanding anything in this Section 12.1 to the contrary, no party hereto that is in breach of a material obligation under this Agreement shall be entitled right to terminate this Agreement except with under this Section 10.1(g) shall not be available to any Party whose action or failure to act has been the prior written consent primary cause of the other party heretoClosing failing to occur on or before such date and such action or failure to act constitutes a breach of this Agreement by such Party.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Newcastle Investment Corp)
Method of Termination. This Agreement constitutes the binding and irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby subject to the terms and conditions contained herein, the consideration for which is the covenants set forth in Sections 2, 3 and 4, and expenditures and obligations incurred and to be incurred by Purchaser, on the one hand, and by Seller, the Company and the Subsidiary, on the other hand, in respect of this Agreement, and this Agreement may be terminated or abandoned only as followsat any time prior to Closing:
12.1.1. (a) By the unanimous mutual written consent of Seller Sellers and Purchaser, notwithstanding prior approval (if any) by the board of directors of either Purchaser or Seller;
12.1.2. If (b) By Purchaser if a material breach of any condition to the Closing under Sections 8 representation, warranty, covenant, agreement or provision of this Agreement has been committed by any of Sellers and 9 such breach has not been satisfied waived by Purchaser;
(c) By any of Sellers if a material breach of any representation, warranty, covenant, agreement or waived) by 5:00 p.m. on the one (1) year anniversary provision of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Seller may terminate this Agreement has been committed by written notice given to Purchaser and such breach has not been waived by Sellers.
(d) By Purchaser on or after the sixtieth day after the date hereof, if Seller has neither (a) proximately contributed to the occurrence any of the failure to satisfy the conditions set forth in Sections 8 and 9 Article 7 hereof, to which the obligations of Purchaser are subject, have not been fulfilled, or if satisfaction of such a condition by such date is or becomes impossible (other than through the failure of Purchaser to comply with its obligations under this Agreement), and Purchaser has not waived such condition on or before such date;
(e) By Sellers on or after the sixtieth day after the date hereof, nor (b) failed to use its commercially reasonable efforts to satisfy if any of the conditions set forth in Sections Article 8 hereof, to which the obligations of Sellers are subject, have not been fulfilled, or if satisfaction of such a condition by such date is or becomes impossible (other than through the failure of Sellers to comply with their obligations under this Agreement), and 9Sellers have not waived such condition on or before such date;
12.1.3. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waivedf) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Purchaser may terminate this Agreement by written notice given to Seller if Purchaser has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9; or
12.1.4. By either Seller Sellers or Purchaser if (a) there shall be any Law that makes consummation of the transactions contemplated herein illegal Closing has not occurred on or otherwise prohibited; or (b) any judgment, injunction, order or decree permanently enjoining any of the parties hereto from consummating the transactions contemplated herein is entered and such judgment, injunction, order or decree shall become final and non-appealable. Notwithstanding anything in this Section 12.1 prior to the contrarysixtieth day after the date hereof, no party hereto provided, however, that is in breach of a material obligation under this Agreement neither Sellers nor the Purchaser shall be entitled to terminate this Agreement except with pursuant to this Section 11.1(f) if such party’s breach of this Agreement has prevented the prior written consent consummation of the other party hereto.transactions contemplated hereby as of or prior to such time; or
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Phibro Animal Health Corp)
Method of Termination. This Agreement constitutes the binding and --------------------- irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby hereby, subject to and in accordance with the terms and conditions contained hereinhereof, the consideration for which is (i) the covenants covenants, representations, warranties and agreements set forth in Sections 2, 3 this Agreement; and 4, and (ii) the expenditures and obligations incurred and to be incurred by Purchaser, Buyer on the one hand, and by Seller, the Company and the Subsidiary, on the other hand, in respect of this Agreement, and this Agreement may be terminated or abandoned only as follows:
12.1.18.1.1. By the unanimous written mutual consent of Seller and Purchaser, notwithstanding prior approval (Buyer; or by Seller or Buyer if any) by the board of directors of either Purchaser or Seller;
12.1.2. If any condition to Closing set forth in Section 6.1.3 or 6.2.3 is not fulfilled and the failure of such condition is not a result of a breach of warranty or nonfulfillment of any covenant or agreement by Buyer or Seller contained in this Agreement; or by Buyer if the condition to Closing under Sections 8 and 9 has set forth in Section 6.1.7 is not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary fulfilled;
8.1.2. By Buyer after November 30, 1997, if any of the Effective Date or at such conditions set forth in Section 6.1 hereof to which the obligations of Buyer are subject (other time and date as may be mutually agreed upon by the parties in writing, Seller may terminate this Agreement by written notice given to Purchaser if Seller has neither (a) proximately contributed to the occurrence of the failure to satisfy than the conditions set forth in Sections 8 6.1.3 and 9 6.1.7) have not been fulfilled or waived, and provided that the failure to fulfill such condition is not a result of a breach of warranty or nonfulfillment of any covenant or agreement by such dateBuyer contained in this Agreement; or
8.1.3. By Seller after November 30, nor (b) failed to use its commercially reasonable efforts to satisfy 1997, if any of the conditions set forth in Sections 8 and 9;
12.1.3. If any condition Section 6.2 hereof to which the Closing under Sections 8 and 9 has not been satisfied obligations of Seller are subject (or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Purchaser may terminate this Agreement by written notice given to Seller if Purchaser has neither (a) proximately contributed to the occurrence of the failure to satisfy than the conditions set forth in Sections 8 Section 6.2.3) have not been fulfilled or waived, and 9 provided that the failure to fulfill such condition is not a result of a breach of warranty or nonfulfillment of any covenant or agreement by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9; or
12.1.4. By either Seller or Purchaser if (a) there shall be any Law that makes consummation of the transactions contemplated herein illegal or otherwise prohibited; or (b) any judgment, injunction, order or decree permanently enjoining any of the parties hereto from consummating the transactions contemplated herein is entered and such judgment, injunction, order or decree shall become final and non-appealable. Notwithstanding anything contained in this Section 12.1 to the contrary, no party hereto that is in breach of a material obligation under this Agreement shall be entitled to terminate this Agreement except with the prior written consent of the other party heretoAgreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Mediacom LLC), Asset Purchase Agreement (Mediacom Capital Corp)
Method of Termination. This Agreement constitutes the binding and irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby subject to the terms and conditions contained herein, the consideration for which is the covenants set forth in Sections 2, 3 and 4, and expenditures and obligations incurred and to be incurred by Purchaser, on the one hand, and by Seller, the Company and the Subsidiary, on the other hand, in respect of this Agreement, and this Agreement may be terminated or abandoned only as followsterminated:
12.1.1. By (a) by the unanimous mutual written consent of Seller and Purchaser, notwithstanding prior approval Buyer;
(if anyb) by the board of directors of either Purchaser Buyer by written notice to Seller if:
(i) there has been a breach, inaccuracy in or Seller;
12.1.2. If failure to perform any condition representation, warranty, covenant or agreement made by Seller pursuant to this Agreement that would give rise to the Closing under Sections 8 failure of any of the conditions specified in Section 8.1 and 9 such breach, inaccuracy or failure has not been satisfied (or waived) cured by 5:00 p.m. on Seller within the one (1) year anniversary earlier of the Effective Outside Date or at such other time and date as may be mutually agreed upon by the parties in writing, Seller may terminate this Agreement by ten (10) days of Seller’s receipt of written notice given to Purchaser if Seller has neither of such breach from Buyer; or
(aii) proximately contributed to the occurrence any of the failure to satisfy the conditions set forth in Sections 8 Section 8.1 shall not have been, or if it becomes apparent that any of such conditions will not be, fulfilled by the Outside Date, unless such failure shall be due to the failure of Buyer to perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing;
(c) by Seller by written notice to Buyer if:
(i) there has been a breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Buyer pursuant to this Agreement that would give rise to the failure of any of the conditions specified in Section 8.2 and 9 such breach, inaccuracy or failure has not been cured by Buyer within the earlier of the Outside Date and ten (10) days of Buyer’s receipt of written notice of such date, nor breach from Seller; or
(bii) failed to use its commercially reasonable efforts to satisfy any of the conditions set forth in Sections 8 and 9;
12.1.3. If Section 8.2 shall not have been, or if it becomes apparent that any condition of such conditions will not be, fulfilled by the Outside Date, unless such failure shall be due to the Closing under Sections 8 and 9 has not been satisfied (failure of Seller to perform or waived) by 5:00 p.m. on the one (1) year anniversary comply with any of the Effective Date covenants, agreements or at such other time and date as may conditions hereof to be mutually agreed upon performed or complied with by the parties in writing, Purchaser may terminate this Agreement by written notice given to Seller if Purchaser has neither (a) proximately contributed it prior to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9Closing; or
12.1.4. By either (d) by Buyer or Seller or Purchaser if in the event that (ai) there shall be any Law Legal Requirement that makes consummation of the transactions contemplated herein by this Agreement illegal or otherwise prohibited; prohibited or (bii) any judgment, injunction, order Governmental Authority shall have issued an Order restraining or decree permanently enjoining any of the parties hereto from consummating the transactions contemplated herein is entered by this Agreement, and such judgment, injunction, order or decree Order shall have become final and non-appealable. Notwithstanding anything in this Section 12.1 to the contrary, no party hereto that is in breach of a material obligation under this Agreement shall be entitled to terminate this Agreement except with the prior written consent of the other party hereto.
Appears in 2 contracts
Sources: Asset Purchase Agreement (New Age Beverages Corp), Asset Purchase Agreement (New Age Beverages Corp)
Method of Termination. This Agreement constitutes the binding and irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby subject to the terms and conditions contained herein, the consideration for which is the covenants set forth in Sections 2, 3 and 4, and expenditures and obligations incurred and to be incurred by Purchaser, on the one hand, and by Seller, the Company and the Subsidiary, on the other hand, in respect of this Agreement, and this Agreement may be terminated and the transactions herein contemplated may be abandoned at any time on or abandoned only as followsbefore the Closing:
12.1.1. By the unanimous written consent of Seller and Purchaser, notwithstanding prior approval (if any) by the board of directors of either Purchaser or Seller;
12.1.2. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Seller may terminate this Agreement by written notice given to Purchaser if Seller has neither (a) proximately contributed by either Party in its sole discretion prior to the occurrence expiration of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor Inspection Period;
(b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9;
12.1.3. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Purchaser may terminate this Agreement by written notice given to Seller if Purchaser has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9; or
12.1.4. By either Seller or Purchaser if (a) there shall be any Law that makes consummation of the transactions contemplated herein illegal or otherwise prohibited; or (b) any judgment, injunction, order or decree permanently enjoining any of the parties hereto from consummating the transactions contemplated herein is entered and such judgment, injunction, order or decree shall become final and non-appealable. Notwithstanding anything in this Section 12.1 to the contrary, no party hereto that is in breach of a material obligation under this Agreement shall be entitled to terminate this Agreement except with the prior mutual written consent of the Parties;
(c) by the Purchaser giving written notice to the Sellers at any time prior to the Closing in the event the Sellers have breached any representation, warranty or covenant contained in this Agreement in any material respect, provided that the Purchaser has notified the Sellers of the breach and the breach has continued without cure for a period of fifteen (15) days following the notice of breach;
(d) by the Purchaser giving written notice to the Sellers at any time after the later to occur of (i) the Outside Date (regardless of whether the cure period set forth in Section 10.1(c) has expired) and (ii) the date to which the Sellers have postponed the Closing pursuant to and in accordance with Section 4.4(b) hereof, if (i) Purchaser is ready, willing and able to close on the date such notice is provided, which for purposes hereof, shall be based upon the Purchaser’s ability to demonstrate the ability to fund all amounts necessary to consummate the Closing; provided however, the Purchaser shall be able to demonstrate such ability to fund without having to actually fund such required amounts, and (ii) Sellers are unwilling or unable to close on the date of such notice despite all of the conditions to Sellers’ obligation to close being satisfied in full, including, without limitation, the Monetary Lien Condition (other party heretothan those conditions that by their nature cannot be satisfied or waived until the Closing Date);
(e) by the Purchaser giving written notice to the Sellers at any time after the Outside Date if the Sellers are unable or unwilling to close the transaction described herein on the basis that the Monetary Lien Condition has not been and simultaneously with the Closing will not have been, satisfied;
(f) by the Sellers giving written notice to the Purchaser at any time prior to the Closing in the event the Purchaser has breached any representation, warranty or covenant contained in this Agreement in any material respect, provided that the Sellers have notified the Purchaser of the breach and the breach has continued without cure for a period of fifteen (15) days following the notice of breach;
(g) by the Sellers giving written notice to the Purchaser at any time after the Outside Date (regardless of whether the cure period set forth in Section 10.1(f) has expired) if (i) Sellers are is ready, willing and able to close on the date such notice is provided, and (ii) Purchaser is unwilling or unable to close on the date of such notice despite all of the conditions to Purchaser’s obligation to close being satisfied in full (other than those conditions that by their nature cannot be satisfied or waived until the Closing Date);
(h) by the Purchaser or the Sellers pursuant to Sections 4.4(b), 6.2 or 6.3; or
(i) by either Party, by giving written notice to the other Party, if a court of competent jurisdiction or other Governmental Authority shall have issued a non-appealable final order, decree or ruling or taken any other action, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the transactions contemplated hereby, unless the Party relying on such order, decree or ruling or other action has not complied in all material respects with its obligations under this Agreement.
Appears in 1 contract
Method of Termination. This Agreement constitutes the binding and irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby subject to the terms and conditions contained herein, the consideration for which is the covenants set forth in Sections 2, 3 and 4, and expenditures and obligations incurred and to be incurred by PurchaserParent, on the one hand, and by Seller, the Company RMO and the SubsidiaryCompany, on the other hand, in respect of this Agreement, and this Agreement may be terminated or abandoned only as follows:
12.1.1. By the unanimous written consent of Seller RMO and PurchaserParent, notwithstanding prior approval (if any) by the board of directors of either Purchaser Parent or Sellerthe Company;
12.1.2. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Seller RMO may terminate this Agreement by written notice given to Purchaser Parent if Seller RMO has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9;
12.1.3. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Purchaser Parent may terminate this Agreement by written notice given to Seller RMO and the Company if Purchaser Parent has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9; or
12.1.4. By either Seller RMO or Purchaser Parent if (a) there shall be any Law that makes consummation of the transactions contemplated herein illegal or otherwise prohibited; or (b) any judgment, injunction, order or decree permanently enjoining any of the parties hereto from consummating the transactions contemplated herein is entered and such judgment, injunction, order or decree shall become final and non-appealable. Notwithstanding anything in this Section 12.1 to the contrary, no party hereto that is in breach of a material obligation under this Agreement shall be entitled to terminate this Agreement except with the prior written consent of the other party hereto.
Appears in 1 contract
Sources: Merger Agreement (Energy West Inc)
Method of Termination. This Agreement constitutes the binding and irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby subject to the terms and conditions contained herein, the consideration for which is the covenants set forth in Sections 2, 3 and 4, and expenditures and obligations incurred and to be incurred by Purchaser, on the one hand, and by Seller, the Company and the Subsidiary, on the other hand, in respect of this Agreement, and this Agreement may be terminated and the transactions herein contemplated may be abandoned at any time on or abandoned only as followsbefore the Closing:
12.1.1. By the unanimous written consent of Seller and Purchaser, notwithstanding prior approval (if any) by the board of directors of either Purchaser or Seller;
12.1.2. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Seller may terminate this Agreement by written notice given to Purchaser if Seller has neither (a) proximately contributed by either Party in its sole discretion prior to the occurrence expiration of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor Inspection Period;
(b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9;
12.1.3. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Purchaser may terminate this Agreement by written notice given to Seller if Purchaser has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9; or
12.1.4. By either Seller or Purchaser if (a) there shall be any Law that makes consummation of the transactions contemplated herein illegal or otherwise prohibited; or (b) any judgment, injunction, order or decree permanently enjoining any of the parties hereto from consummating the transactions contemplated herein is entered and such judgment, injunction, order or decree shall become final and non-appealable. Notwithstanding anything in this Section 12.1 to the contrary, no party hereto that is in breach of a material obligation under this Agreement shall be entitled to terminate this Agreement except with the prior mutual written consent of the Parties;
(c) by the Purchaser giving written notice to the Sellers at any time prior to the Closing in the event the Sellers have breached any representation, warranty or covenant contained in this Agreement in any material respect, provided that the Purchaser has notified the Sellers of the breach and the breach has continued without cure for a period of fifteen (15) days following the notice of breach;
(d) by the Purchaser giving written notice to the Sellers at any time after the later to occur of (i) the Outside Date (regardless of whether the cure period set forth in Section 10.1(c) has expired) and (ii) the date to which the Sellers have postponed the Closing pursuant to and in accordance with Section 4.4(b) hereof, if (i) Purchaser is ready, willing and able to close on the date such notice is provided, which for purposes hereof, shall be based upon the Purchaser’s ability to demonstrate the ability to fund all amounts necessary to consummate the Closing; provided however, the Purchaser shall be able to demonstrate such ability to fund without having to actually fund such required amounts, and (ii) Sellers are unwilling or unable to close on the date of such notice despite all of the conditions to Sellers’ obligation to close being satisfied in full, including, without limitation, the Monetary Lien Condition (other party heretothan those conditions that by their nature cannot be satisfied or waived until the Closing Date);
(e) by the Purchaser giving written notice to the Sellers at any time after the Outside Date if the Sellers are unable or unwilling to close the transaction described herein on the basis that the Monetary Lien Condition has not been and simultaneously with the Closing will not have been, satisfied;
(f) by the Sellers giving written notice to the Purchaser at any time prior to the Closing in the event the Purchaser has breached any representation, warranty or covenant contained in this Agreement in any material respect, provided that the Sellers have notified the Purchaser of the breach and the breach has continued without cure for a period of fifteen (15) days following the notice of breach;
(g) by the Sellers giving written notice to the Purchaser at any time after the Outside Date (regardless of whether the cure period set forth in Section 10.1(f) has expired) if (i) Sellers are is ready, willing and able to close on the date such notice is provided, and (ii) Purchaser is unwilling or unable to close on the date of such notice despite all of the conditions to Purchaser’s obligation to close being satisfied in full (other than those conditions that by their nature cannot be satisfied or waived until the Closing Date); 886463.02-NYCSR06A - MSW
(h) by the Purchaser or the Sellers pursuant to Sections 4.4(b), 6.2 or 6.3; or
(i) by either Party, by giving written notice to the other Party, if a court of competent jurisdiction or other Governmental Authority shall have issued a non-appealable final order, decree or ruling or taken any other action, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the transactions contemplated hereby, unless the Party relying on such order, decree or ruling or other action has not complied in all material respects with its obligations under this Agreement.
Appears in 1 contract
Method of Termination. This Agreement constitutes the binding Subject to Section 8.2 and irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby subject to the terms and conditions contained hereinSection 8.3, the consideration for which is the covenants set forth in Sections 2, 3 and 4, and expenditures and obligations incurred and to be incurred by Purchaser, on the one hand, and by Seller, the Company and the Subsidiary, on the other hand, in respect of this Agreement, and this Agreement may be terminated or abandoned prior to the Closing only as follows:
12.1.1. 8.1.1 By the unanimous mutual written consent of Seller Buyer and Purchaser, notwithstanding prior approval (if any) by the board of directors of either Purchaser or Seller;
12.1.2. If 8.1.2 by Buyer, at any condition time, provided that Buyer is not then in default or breach in any material respect of its representations, warranties, covenants or agreements contained in this Agreement, if Seller breaches or fails to perform in any respect any of its representations, warranties, covenants or agreements contained in this Agreement and such breach or failure to perform (a) would give rise to the failure of a condition set forth in Section 6.1.1 or 6.1.2 if such breach or failure to perform had occurred at the time scheduled for Closing under Sections 8 and 9 (b) such breach has not been satisfied substantially cured within thirty (30) days following Seller’s receipt of written notice thereof from Buyer or waived) waived by 5:00 p.m. on the one (1) year anniversary Buyer;
8.1.3 by Seller, at any time, provided that Seller is not then in default or breach in any material respect of the Effective Date its representations, warranties, covenants or at such other time and date as may be mutually agreed upon by the parties agreements contained in writingthis Agreement, Seller may terminate if Buyer breaches or fails to perform in any respect any of its representations, warranties, covenants or agreements contained in this Agreement by written notice given and such breach or failure to Purchaser if Seller has neither perform (a) proximately contributed would give rise to the occurrence failure of the a condition set forth in Section 6.2.1 or 6.2.2 if such breach or failure to satisfy perform had occurred at the time scheduled for Closing, and (b) other than with respect to a breach by Buyer of its obligation to deliver the Purchase Price at the time scheduled for Closing (as determined in accordance with Section 7.1.1), for which there shall be no cure period, such breach has not been substantially cured within thirty (30) days following Buyer’s receipt of written notice thereof from Seller or waived by Seller;
8.1.4 By Buyer on or after the date that is six (6) months after the date hereof (the “Upset Date”), if any of the conditions set forth in Sections 8 and 9 by such date, nor Section 6.1 to which the obligations of Buyer are subject (b) failed to use its commercially reasonable efforts to satisfy other than the conditions set forth in Sections 8 and 9;
12.1.3. If any condition Section 6.1 that by their nature are to be fulfilled at the Closing under Sections 8 and 9 has Closing) have not been satisfied (fulfilled or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time , and date as may be mutually agreed upon by the parties in writing, Purchaser may terminate this Agreement by written notice given to Seller if Purchaser has neither (a) proximately contributed to the occurrence of provided that the failure to satisfy fulfill such condition is not a result of a breach of warranty or representation or non-fulfillment of any covenant or agreement by Buyer contained in this Agreement; or
8.1.5 By Seller on or after the Upset Date, if any of the conditions set forth in Sections 8 and 9 by such date, nor Section 6.2 to which the obligations of Seller are subject (b) failed to use its commercially reasonable efforts to satisfy other than the conditions set forth in Sections 8 Section 6.2 that by their nature are to be fulfilled at the Closing) have not been fulfilled or waived, and 9; or
12.1.4. By either Seller provided that the failure to fulfill such condition is not a result of a breach of warranty or Purchaser if (a) there shall be any Law that makes consummation of the transactions contemplated herein illegal representation or otherwise prohibited; or (b) any judgment, injunction, order or decree permanently enjoining any of the parties hereto from consummating the transactions contemplated herein is entered and such judgment, injunction, order or decree shall become final and non-appealable. Notwithstanding anything fulfillment of any covenant or agreement by Seller contained in this Section 12.1 to the contrary, no Agreement. The party hereto that is in breach of a material obligation under this Agreement shall be entitled seeking to terminate this Agreement except with pursuant to this Section 8.1 (other than Section 8.1.1) shall give prompt written notice of such termination to the prior written consent of other party. Each party shall give the other party heretoprompt written notice upon learning of any breach or default by the other party under this Agreement or any other event that would reasonably be expected to lead to a condition to the Closing not being satisfied.
Appears in 1 contract
Method of Termination. This Agreement constitutes the binding Subject to Section 8.2 and irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby subject to the terms and conditions contained hereinSection 8.3, the consideration for which is the covenants set forth in Sections 2, 3 and 4, and expenditures and obligations incurred and to be incurred by Purchaser, on the one hand, and by Seller, the Company and the Subsidiary, on the other hand, in respect of this Agreement, and this Agreement may be terminated or abandoned prior to the Closing only as follows:
12.1.1. By 8.1.1 by the unanimous mutual written consent of Seller Buyer and Purchaser, notwithstanding prior approval (if any) by the board of directors of either Purchaser or Seller;
12.1.2. If 8.1.2 by Buyer, at any condition time, provided that Buyer is not then in default or breach in any material respect of its representations, warranties, covenants or agreements contained in this Agreement, if Seller breaches or fails to perform in any respect any of its representations, warranties, covenants or agreements contained in this Agreement and such breach or failure to perform (a) would give rise to the failure of a condition set forth in Section 6.1.1 or 6.1.2 if such breach or failure to perform had occurred at the time scheduled for Closing under Sections 8 and 9 (b) such breach has not been satisfied substantially cured within thirty (30) days following Seller’s receipt of written notice thereof from Buyer or waived) waived by 5:00 p.m. on the one (1) year anniversary Buyer;
8.1.3 by Seller, at any time, provided that Seller is not then in default or breach in any material respect of the Effective Date its representations, warranties, covenants or at such other time and date as may be mutually agreed upon by the parties agreements contained in writingthis Agreement, Seller may terminate if Buyer breaches or fails to perform in any respect any of its representations, warranties, covenants or agreements contained in this Agreement by written notice given and such breach or failure to Purchaser if Seller has neither perform (a) proximately contributed would give rise to the occurrence failure of the a condition set forth in Section 6.2.1 or 6.2.2 if such breach or failure to satisfy perform had occurred at the time scheduled for Closing, and (b) other than with respect to a breach by Buyer of its obligation to deliver the Estimated Purchase Price at the time scheduled for Closing (as determined in accordance with Section 7.1.1), for which there shall be no cure period, such breach has not been substantially cured within thirty (30) days following Buyer’s receipt of written notice thereof from Seller or waived by Seller;
8.1.4 by Buyer on or after the date that is three (3) months after the date hereof (the “Upset Date”), if any of the conditions set forth in Sections 8 and 9 by such date, nor Section 6.1 to which the obligations of Buyer are subject (b) failed to use its commercially reasonable efforts to satisfy other than the conditions set forth in Sections 8 and 9;
12.1.3. If any condition Section 6.1 that by their nature are to be fulfilled at the Closing under Sections 8 and 9 has Closing) have not been satisfied (fulfilled or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time , and date as may be mutually agreed upon by the parties in writing, Purchaser may terminate this Agreement by written notice given to Seller if Purchaser has neither (a) proximately contributed to the occurrence of provided that the failure to satisfy fulfill such condition is not a result of a breach of warranty or representation or non-fulfillment of any covenant or agreement by Buyer contained in this Agreement; provided that if any of the conditions set forth in Sections 8 Section 6.1.4 or 6.1.6 are not satisfied as of the fifth Business Day prior to the Upset Date, and 9 each other condition to the Closing set forth in Section 6.1 is or would be on such date satisfied, then the Upset Date shall be extended day-by-day for each day until such conditions set forth in Section 6.1.4 and 6.1.6 are satisfied, provided further, however, that the Upset Date shall not extend past the date which is six (6) months after the date hereof; or
8.1.5 by such dateSeller on or after the Upset Date, nor (b) failed to use its commercially reasonable efforts to satisfy if any of the conditions set forth in Sections 8 Section 6.2 to which the obligations of Seller are subject (other than the conditions set forth in Section 6.2 that by their nature are to be fulfilled at the Closing) have not been fulfilled or waived, and 9provided that the failure to fulfill such condition is not a result of a breach of warranty or representation or non-fulfillment of any covenant or agreement by Seller contained in this Agreement; or
12.1.4. By either Seller provided that if the condition set forth in Section 6.2.4 is not satisfied as of the fifth Business Day prior to the Upset Date, and each other condition to the Closing set forth in Section 6.2 is or Purchaser if (a) there would be on such date satisfied, then the Upset Date shall be any Law extended day-by-day for each day until such condition set forth in Section 6.2.4 is satisfied, provided further, however, that makes consummation of the transactions contemplated herein illegal or otherwise prohibited; or Upset Date shall not extend past the date which is six (b6) any judgment, injunction, order or decree permanently enjoining any of months after the parties hereto from consummating the transactions contemplated herein is entered and such judgment, injunction, order or decree shall become final and non-appealabledate hereof. Notwithstanding anything in this Section 12.1 to the contrary, no The party hereto that is in breach of a material obligation under this Agreement shall be entitled seeking to terminate this Agreement except with pursuant to this Section 8.1 (other than Section 8.1.1) shall give prompt written notice of such termination to the prior written consent of other party. Each party shall give the other party heretoprompt written notice upon learning of any breach or default by such party under this Agreement or any other event that would reasonably be expected to lead to a condition to the Closing not being satisfied.
Appears in 1 contract
Method of Termination. This Agreement constitutes the binding and irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby subject to the terms and conditions contained herein, the consideration for which is the covenants set forth in Sections 2, 3 and 4, and expenditures and obligations incurred and to be incurred by PurchaserParent, on the one hand, and by Seller, the Company and the SubsidiaryCompany, on the other hand, in respect of this Agreement, and this Agreement may be terminated or abandoned only as follows:
12.1.1. By the unanimous written consent of Seller the Company and PurchaserParent, notwithstanding prior approval (if any) by Parent or the board of directors of either Purchaser or SellerCompany;
12.1.2. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Seller the Company may terminate this Agreement by written notice given to Purchaser Parent if Seller the Company has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9;
12.1.3. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Purchaser Parent may terminate this Agreement by written notice given to Seller the Company if Purchaser Parent has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9; or
12.1.4. By either Seller the Company or Purchaser Parent if (a) there shall be any Law that makes consummation of the transactions contemplated herein illegal or otherwise prohibited; or (b) any judgment, injunction, order or decree permanently enjoining any of the parties hereto from consummating the transactions contemplated herein is entered and such judgment, injunction, order or decree shall become final and non-appealable.
12.1.5. Notwithstanding anything in this Section 12.1 to the contrary, no party hereto that is in breach of a material obligation under this Agreement shall be entitled to terminate this Agreement except with the prior written consent of the other party hereto.
Appears in 1 contract
Method of Termination. This Agreement constitutes the binding and irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby subject to the terms and conditions contained herein, the consideration for which is the covenants set forth in Sections 2, 3 and 4, and expenditures and obligations incurred and to be incurred by Purchaser, on the one hand, and by Seller, the Company and the Subsidiary, on the other hand, in respect of this Agreement, and this Agreement may be terminated with respect to any and all Acquired Subsidiaries not theretofore transferred and the transactions herein contemplated may be abandoned with respect to any and all Acquired Subsidiaries not theretofore transferred at any time on or abandoned only as followsbefore the Closing:
12.1.1. By the unanimous (a) by mutual written consent of each of the parties hereto;
(b) by Seller and or Purchaser, notwithstanding if the Closing with respect to all Acquired Subsidiaries shall not have occurred prior approval (if any) by the board of directors of either Purchaser or Seller;
12.1.2. If any condition to the Closing under Sections 8 and 9 has not been satisfied close of business on August 1, 2004 (or waived) by 5:00 p.m. on "Termination Date'"), provided, however, that the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Seller may right to terminate this Agreement by written notice given under this Section 12.1(b) shall not be available to Purchaser any party whose failure (or whose permitted assignee's failure) to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing with respect to any Acquired Subsidiaries; and, provided further, that (i) if Seller has neither (a) proximately contributed as of the Termination Date, all of the conditions to the occurrence of the failure parties' obligations to satisfy close set forth in Article IX and Article X (other than the conditions set forth in Sections 8 9.2, 9.4, 10.3 or 10.4) have been satisfied (except for those conditions that by their nature are to be satisfied at the Closing), the Termination Date may be extended by either party upon written notice to the other party for a period of thirty (30) days, and 9 by (ii) if upon the expiration of such dateinitial thirty (30) day period, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 9.2, 9.4, 10.3 and 9;
12.1.3. If any condition 10.4 still have not been satisfied, the Termination Date may be extended by either party upon written notice to the Closing under Sections 8 and 9 has not been satisfied (or waived) by 5:00 p.m. on the other party for one (1) year anniversary additional thirty (30) day period, and (iii) if upon the expiration of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writingsecond thirty (30) day period, Purchaser may terminate this Agreement by written notice given to Seller if Purchaser has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 9.2 and 9 10.4 have not been satisfied with respect to one or both of the Selected Properties, the Termination Date may be extended by Seller at Seller's sole option (exercisable in Seller's sole discretion) with respect to either or both of the Selected Properties upon written notice to Purchaser for up to three (3) additional consecutive thirty (30) day periods;
(c) by Purchaser, provided Purchaser (or Purchaser's permitted assignee) is not then in material breach of this Agreement, if Seller has breached in any material respect any representation, warranty, covenant or agreement contained in this Agreement which breach would render unsatisfied any condition contained in Article IX, and such datebreach remains uncured for more than ten (10) days after Seller's receipt of written notice thereof from Purchaser specifying in reasonable detail the nature of such breach;
(d) by Seller, nor provided Seller is not then in material breach of this Agreement, if Purchaser has breached or, in the case of any provisions of this Agreement assigned to Highmark Healthcare, LLC in accordance with Section 13.5, Highmark Healthcare, LLC has breached, in any material respect any representation, warranty, covenant or agreement contained in this Agreement which breach would render unsatisfied any condition contained in Article X, and such breach remains uncured for more than ten (b10) failed days after Purchaser's receipt of written notice thereof from Seller specifying in reasonable detail the nature of such breach;
(e) by Purchaser, upon written notice delivered to use Seller no later than 5:00 P.M on June 3, 2004, that (i) Purchaser is not satisfied in its commercially reasonable efforts sole discretion with the results of its due diligence investigation of the Acquired Subsidiaries and the respective assets and operations of the Acquired Subsidiaries or (ii) the Board of Directors of Medical Properties Trust, Inc. has not approved and ratified the transactions contemplated under this Agreement;
(f) by Seller, if for any reason Purchaser shall not have made or caused to satisfy be made, on or prior to May 27, 2004, any filings pursuant to the conditions set forth in Sections 8 and 9HSR Act required to be made by Purchaser under this Agreement; or
12.1.4. By either Seller or Purchaser if (ag) there shall be any Law that makes consummation by Seller, pursuant to clause (ii) of the transactions contemplated herein illegal or otherwise prohibited; or (b) any judgment, injunction, order or decree permanently enjoining any of the parties hereto from consummating the transactions contemplated herein is entered and such judgment, injunction, order or decree shall become final and non-appealable. Notwithstanding anything in this Section 12.1 to the contrary, no party hereto that is in breach of a material obligation under this Agreement shall be entitled to terminate this Agreement except with the prior written consent of the other party hereto10.4.
Appears in 1 contract
Method of Termination. This Agreement constitutes the binding and irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby subject to the terms and conditions contained herein, the consideration for which is the covenants set forth in Sections 2, 3 and 4, and expenditures and obligations incurred and to be incurred by PurchaserParent, on the one hand, and by SellerShareholders, the Company Companies, and the SubsidiarySubsidiaries, on the other hand, in respect of this Agreement, and this Agreement may be terminated or abandoned only as follows:
12.1.1. By the unanimous written consent of Seller Shareholders and PurchaserParent, notwithstanding prior approval (if any) by the board of directors of either Purchaser Parent or Sellerthe Companies;
12.1.2. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Seller Shareholders may terminate this Agreement by written notice given to Purchaser Parent if Seller Shareholders has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9;
12.1.3. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Purchaser Parent may terminate this Agreement by written notice given to Seller Shareholders and the Companies if Purchaser Parent has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9; or
12.1.4. By either Seller Shareholders or Purchaser Parent if (a) there shall be any Law that makes consummation of the transactions contemplated herein illegal or otherwise prohibited; or (b) any judgment, injunction, order or decree permanently enjoining any of the parties hereto from consummating the transactions contemplated herein is entered and such judgment, injunction, order or decree shall become final and non-appealable.
12.1.5. By Shareholders at any time during the five (5) day period ending two (2) calendar days before the Closing Date, if:
(i) the Average Closing Price is less than $9.49; and
(ii) (A) the number obtained by dividing the Average Closing Price by $9.49 shall be less than (B) the number obtained by dividing the Index Price on the Walkaway Determination Date by the Index Price on the Starting Date and subtracting 0.20 from such quotient. If Shareholders elect to exercise this termination right, RMO shall give written notice to be received by Parent no later than one day following the Walkaway Determination Date; provided that, such notice of termination may be withdrawn by Shareholders at any time prior to two calendar days before the Closing Date. For five days after receipt of such a notice, Parent shall have the irrevocable right to increase the number of shares of Parent Common Stock being issued to Shareholders hereunder so that the Share Consideration Value is equal to the Merger Consideration less the Assumed Debt. If Parent makes this election, it shall give written notice to Shareholders of such election and the revised number of shares of Parent Common stock being issued hereunder. In such event, no termination will occur pursuant to this Section 12.1.5, and this Agreement shall remain in effect in accordance with its terms (except that the number of shares of Parent Common Stock being issued to Shareholders hereunder shall have been so modified), and any reference in this Agreement to the issuance of shares of Parent Common Stock to Shareholders shall be deemed to refer to the share issuance after giving effect to the adjustment made pursuant to this Section. If Parent declares or affects a stock dividend, reclassification, recapitalization, split-up, combination or similar transaction between the Starting Date and the Walkaway Determination Date (or establishes a record date in respect thereof), the price of Parent Common Stock shall be appropriately adjusted for the purposes of applying this Section. Notwithstanding anything in this Section 12.1 to the contrary, no party hereto that is in breach of a material obligation under this Agreement shall be entitled to terminate this Agreement except with the prior written consent of the other party hereto. In the event the Shareholders exercise their right to terminate this Agreement pursuant to this Section 12.1.5 then RMO shall pay Parent One Hundred Thousand Dollars ($100,000) as consideration for such termination.
Appears in 1 contract
Sources: Merger Agreement (Energy West Inc)
Method of Termination. This Agreement constitutes the binding and irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby hereby, subject to and in accordance with the terms and conditions contained hereinhereof, the consideration for which is (a) the covenants covenants, representations, warranties and agreements set forth in Sections 2, 3 this Agreement; and 4, and (b) the expenditures and obligations incurred and to be incurred by Purchaser, Buyer on the one hand, and by Seller, the Company and the Subsidiary, on the other hand, in respect of this Agreement, and this Agreement may be terminated or abandoned only as follows:
12.1.1. (a) By the unanimous mutual written consent of Seller and Purchaser, notwithstanding prior approval (if any) by the board of directors of either Purchaser or SellerBuyer;
12.1.2. If any condition (b) By either Buyer or Seller if the conditions to the Closing under Sections 8 and 9 has have not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon waived by the parties in writingparty entitled to do so, Seller may terminate the day that is one hundred and forty (140) days after the date of this Agreement by written notice given to Purchaser if Seller has neither (a) proximately contributed to the occurrence of Agreement, so long as the failure to satisfy close is not attributable to a breach hereunder or any other action or inaction by the conditions set forth in Sections 8 and 9 by such date, nor (b) failed party seeking to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9terminate;
12.1.3. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waivedc) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Purchaser may terminate this Agreement by written notice given to Seller if Purchaser has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9; or
12.1.4. By either Seller or Purchaser Buyer in accordance with the provisions of Section 6.6 or 7.4;
(d) By written notice delivered by Buyer on the one hand, or Seller on the other, if (ai) there shall be any Law a representation or warranty was not true and correct in all material respects when made by the non-terminating party, (ii) the non-terminating party has failed to perform, satisfy, or comply with all of its respective covenants and agreements in all material respects, or (iii) the non-terminating party has failed to satisfy all of its respective obligations and conditions in all material respects, provided that makes consummation in the case of (ii), (iii), such non-terminating party has received thirty (30) days prior written notice of such failure and such failure has not been cured within such thirty (30) day period;
(e) By Seller (i) if the transactions contemplated herein illegal Purchase Price adjustment mechanism in Section 1.5(c) or otherwise prohibited1.5(e) would result in a purchase price less than the Floor; or (bii) any judgmentif Buyer elects to assume less than all the Business Contracts pursuant to Section 5.4 and Seller is unable to cause the termination of such unassumed contracts without material cost, injunction, order penalty or decree permanently enjoining any of the parties hereto from consummating the transactions contemplated herein is entered and such judgment, injunction, order or decree shall become final and non-appealable. Notwithstanding anything other liability; or
(f) By Buyer in this Section 12.1 to the contrary, no party hereto that is in breach of a material obligation under this Agreement shall be entitled to terminate this Agreement except accordance with the prior written consent provisions of the other party heretoSection 5.11.
Appears in 1 contract
Sources: Asset Purchase Agreement (Northland Cable Properties Seven Limited Partnership)
Method of Termination. This Agreement constitutes the binding and irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby subject to the terms and conditions contained herein, the consideration for which is the covenants set forth in Sections 2, 3 and 4, and expenditures and obligations incurred and to be incurred by Purchaser, on the one hand, and by Seller, the Company and the Subsidiary, on the other hand, in respect of this Agreement, and this Agreement may be terminated or abandoned only as followsat any time prior to Closing:
12.1.1. (a) By the unanimous mutual written consent of Seller and Purchaser, notwithstanding prior approval (if any) by the board of directors of either Purchaser or Seller;
12.1.2. If (b) By Purchaser if any condition to the Closing under Sections 8 material breach of any representation, warranty, covenant, agreement or provision of this Agreement or any other Transaction Document has been committed by Seller and 9 such breach has not been satisfied waived by Purchaser or cured by Seller in thirty (30) days after any written notice of breach from Purchaser delivered to Seller or waived(ii) Purchaser terminates the Collaboration Agreement or License Agreement based on a material and uncured default by 5:00 p.m. on or any other cause attributable to Seller thereunder pursuant to the one terms and conditions thereof;
(1c) year anniversary By Seller if (i) any material breach of the Effective Date any representation, warranty, covenant, agreement or at such other time and date as may be mutually agreed upon by the parties in writing, Seller may terminate provision of this Agreement has been committed by Purchaser and such breach has not been waived by Seller or cured by Purchaser in thirty (30) days after any written notice given of breach from Seller delivered to Purchaser, or (ii) Seller terminates the Collaboration Agreement or License Agreement based on a material and uncured default by or any other cause attributable to Purchaser if Seller has neither (a) proximately contributed thereunder pursuant to the occurrence terms and conditions thereof
(d) By Purchaser on or after, June 30, 2021, if any of the failure to satisfy the conditions set forth in Sections 8 and 9 Article 7 hereof, to which the obligations of Purchaser are subject, have not been fulfilled, or if satisfaction of such a condition by such date is or becomes impossible (other than through the failure of Purchaser to comply with its obligations under this Agreement), and Purchaser has not waived such condition on or before such date;
(e) By Seller on or after, nor (b) failed to use its commercially reasonable efforts to satisfy June 30, 2021, if any of the conditions set forth in Sections Article 8 hereof, to which the obligations of Seller are subject, have not been fulfilled, or if satisfaction of such a condition by such date is or becomes impossible (other than through the failure of Seller to comply with their obligations under this Agreement), and 9;
12.1.3. If any condition to the Closing under Sections 8 and 9 Seller has not been satisfied (waived such condition on or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Purchaser may terminate this Agreement by written notice given to Seller if Purchaser has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by before such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9; or
12.1.4. (f) By either Purchaser in the event any claim or action for infringement, misappropriation or other violation of any intellectual property rights of any Person is brought or threatened against Purchaser or Seller or Purchaser if (a) there shall be any Law that makes consummation of the transactions contemplated herein illegal or otherwise prohibited; or (b) any judgment, injunction, order or decree permanently enjoining its shareholders relating to any of the parties hereto Purchased Assets, whereby (i) there is a reasonable possibility of success, and (ii) if successful, the result would materially affect the right of Purchaser to own the Purchased Assets and/or operate the Business such that ten percent (10%) or more of the anticipated revenues from consummating Royalty Products
(g) for the transactions contemplated herein is entered and next twelve (12) months would be adversely impacted; provided that any such judgment, injunction, order or decree shall become final and non-appealable. Notwithstanding anything in termination by Purchaser pursuant to this Section 12.1 to the contrary, no party hereto that is in breach of a material obligation under this Agreement 11.1(f) shall be entitled to terminate this Agreement except with the prior written consent of the other party heretoPurchaser’s sole remedy in such instance.
Appears in 1 contract
Sources: Intellectual Property Purchase Agreement (Phibro Animal Health Corp)
Method of Termination. This Agreement constitutes the binding and irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby subject to the terms and conditions contained herein, the consideration for which is the covenants set forth in Sections 2, 3 and 4, and expenditures and obligations incurred and to be incurred by Purchaser, on the one hand, and by Seller, the Company and the Subsidiary, on the other hand, in respect of this Agreement, and this Agreement it may be terminated or abandoned only as followsat any time prior to the Closing Date:
12.1.1. (a) By the unanimous written mutual consent of Seller and Purchaser, notwithstanding prior approval Buyer at any time;
(if anyb) By Seller pursuant to Section 1.2;
(c) By Seller in the exercise of fiduciary duties by its board or the board of directors of either Purchaser or SellerAlpine pursuant to Section 5.11;
12.1.2. If (d) By Buyer if Seller or the controlling shareholders of Seller consummate a Business Combination with any condition Person other than Buyer;
(e) By Buyer pursuant to the Closing under Sections 8 and 9 has not been satisfied Section 5.19;
(f) By Buyer pursuant to Section 5.20;
(g) By Buyer pursuant to Section 9.4;
(h) By Seller, upon a breach of or waived) by 5:00 p.m. failure to perform in any Material respect any representation, warranty, covenant or agreement on the one (1) year anniversary part of the Effective Date or at Buyer set forth in this Agreement, such other time and date as may be mutually agreed upon by the parties in writing, Seller may terminate this Agreement by written notice given to Purchaser if Seller has neither (a) proximately contributed to the occurrence of the failure to satisfy that the conditions set forth in Sections 8 Article 7 of this Agreement cannot be satisfied on or prior to November 30, 2005; provided, however, in the case of any such breach or failure to perform by Buyer of any covenant or agreement hereunder which is not a willful breach or failure to perform, if such breach or failure to perform may be cured by Buyer and 9 by Buyer is taking reasonable steps to cure such datebreach or failure to perform, nor then Seller may not terminate this Agreement pursuant to this Section 9.1(h) until February 15, 2006;
(bi) failed By Buyer, upon a breach of or failure to use its commercially reasonable efforts to satisfy perform in any Material respect any representation, warranty, covenant or agreement on the part of Seller set forth in this Agreement, such that the conditions set forth in Sections 8 and 9;
12.1.3. If Article 6 of this Agreement cannot be satisfied on or prior to November 30, 2005; provided, however, in the case of any condition such breach or failure to the Closing under Sections 8 and 9 has perform by Seller of any covenant or agreement hereunder which is not been satisfied (a willful breach or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date failure to perform, if such breach or at such other time and date as failure to perform may be mutually agreed upon cured by the parties in writingSeller and Seller is taking reasonable steps to cure such breach or failure to perform, Purchaser then Buyer may not terminate this Agreement by written notice given pursuant to Seller if Purchaser has neither (athis Section 9.1(i) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such dateuntil February 15, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 92006; or
12.1.4. (j) By either Seller or Purchaser Buyer, if (a) there the Closing shall be any Law that makes consummation of the transactions contemplated herein illegal not have occurred on or otherwise prohibited; or (b) any judgmentprior to February 15, injunction, order or decree permanently enjoining any of the parties hereto from consummating the transactions contemplated herein is entered and such judgment, injunction, order or decree shall become final and non-appealable. Notwithstanding anything in this Section 12.1 to the contrary, no party hereto that is in breach of a material obligation under this Agreement shall be entitled to terminate this Agreement except with the prior written consent of the other party hereto2006.
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Method of Termination. This Agreement constitutes may be terminated and the binding and irrevocable transactions herein contemplated may be abandoned at any time on or before the Closing:
(a) by mutual written consent of all of the parties hereto;
(b) Intentionally omitted;
(c) Intentionally omitted;
(d) automatically, at 11:59 p.m., Eastern Standard Time, on December 1, 2003, unless the Closing has occurred (the "TERMINATION DATE"), unless extended by the mutual written agreement of the parties hereto hereto; provided, however, that the right to consummate the transactions contemplated hereby subject terminate this Agreement under this Section 11.1(d) shall not be available to the terms and conditions contained herein, the consideration for which is the covenants set forth in Sections 2, 3 and 4, and expenditures and obligations incurred and any party whose action or failure to be incurred act constitutes a material breach of this Agreement;
(e) by Purchaser, on the one hand, if Purchaser is not then in material breach of this Agreement and by Seller, the Company and the Subsidiary, on the other hand, Sellers are then in respect material breach of this Agreement, and such breach remains uncured for more than ten (10) days after Sellers' receipt of written notice thereof from Purchaser specifying in reasonable detail the nature of such breach; provided, however, that no opportunity to cure shall extend beyond the Termination Date unless specifically agreed to by the non-breaching party;
(f) by Sellers, if Sellers are not then in material breach of this Agreement may be terminated or abandoned only as follows:and Purchaser is then in material breach of this Agreement, and such breach remains uncured for more than ten (10) days after Purchaser's receipt of written notice thereof from Sellers specifying in reasonable detail the nature of such breach; provided, however, that no opportunity to cure shall extend beyond the Termination Date unless specifically agreed to by the non-breaching party;
12.1.1. By the unanimous written consent of Seller and Purchaser, notwithstanding prior approval (if anyg) by Sellers if (i) the board of directors of either Purchaser Parent Board shall have authorized MHC or Seller;
12.1.2. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary a majority of the Effective Date or Sellers, as appropriate, to enter into an agreement with respect to a Superior Proposal and MHC shall have complied with its obligations under Section 4.18 and (ii) Purchaser shall not have made, within five (5) business days of receipt of MHC's notification of its intention to enter into an agreement with respect to a Superior Proposal, an offer that the Parent Board determines in good faith, is at least as favorable, from a financial point of view, to MHC as such other time and date as may be mutually agreed upon by the parties in writing, Seller may terminate this Agreement by written notice given to Purchaser if Seller has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9;
12.1.3. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Purchaser may terminate this Agreement by written notice given to Seller if Purchaser has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9Superior Proposal; or
12.1.4. By either Seller or Purchaser if (a) there shall be any Law that makes consummation of the transactions contemplated herein illegal or otherwise prohibited; or (b) any judgment, injunction, order or decree permanently enjoining any of the parties hereto from consummating the transactions contemplated herein is entered and such judgment, injunction, order or decree shall become final and non-appealable. Notwithstanding anything in this Section 12.1 to the contrary, no party hereto that is in breach of a material obligation under this Agreement shall be entitled to terminate this Agreement except with the prior written consent of the other party hereto.and
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Method of Termination. This Agreement constitutes the binding and irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby subject to the terms and conditions contained herein, the consideration for which is the covenants set forth in Sections 2, 3 and 4, and expenditures and obligations incurred and to be incurred by Purchaser, on the one hand, and by Seller, the Company Companies, and the SubsidiarySubsidiaries, on the other hand, in respect of this Agreement, and this Agreement may be terminated or abandoned only as follows:
12.1.1. By the unanimous written consent of Seller and Purchaser, notwithstanding prior approval (if any) by the board of directors of either Purchaser or Seller;
12.1.2. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Seller may terminate this Agreement by written notice given to Purchaser if Seller has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9;
12.1.3. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Purchaser may terminate this Agreement by written notice given to Seller if Purchaser has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9; or
12.1.4. By either Seller or Purchaser if (a) there shall be any Law that makes consummation of the transactions contemplated herein illegal or otherwise prohibited; or (b) any judgment, injunction, order or decree permanently enjoining any of the parties hereto from consummating the transactions contemplated herein is entered and such judgment, injunction, order or decree shall become final and non-appealable.
12.1.5. By Seller at any time during the five (5) day period ending two (2) calendar days before the Closing Date, if:
(i) the Average Closing Price is less than $9.49; and
(ii) (A) the number obtained by dividing the Average Closing Price by $9.49 shall be less than (B) the number obtained by dividing the Index Price on the Walkaway Determination Date by the Index Price on the Starting Date and subtracting 0.20 from such quotient. If Seller elects to exercise this termination right, he shall give written notice to be received by Purchaser no later than one day following the Walkaway Determination Date; provided that, such notice of termination may be withdrawn by Seller at any time prior to two calendar days before the Closing Date. For five days after receipt of such a notice, Purchaser shall have the irrevocable right to increase the number of shares of Purchaser’s common stock being issued to Seller hereunder so that the Share Consideration Value is equal to the Purchase Price less the Assumed Debt. If Purchaser makes this election, it shall give written notice to Seller of such election and the revised number of Purchased Shares being issued hereunder. In such event, no termination will occur pursuant to this Section 12.1.5, and this Agreement shall remain in effect in accordance with its terms (except that the number of shares of Purchaser’s common stock being issued to Seller hereunder shall have been so modified), and any reference in this Agreement to the issuance of shares of Purchaser’s common stock to Seller shall be deemed to refer to the share issuance after giving effect to the adjustment made pursuant to this Section. If Purchaser declares or affects a stock dividend, reclassification, recapitalization, split-up, combination or similar transaction between the Starting Date and the Walkaway Determination Date (or establishes a record date in respect thereof), the price of Purchaser’s common stock shall be appropriately adjusted for the purposes of applying this Section. Notwithstanding anything in this Section 12.1 to the contrary, no party hereto that is in breach of a material obligation under this Agreement shall be entitled to terminate this Agreement except with the prior written consent of the other party hereto. In the event Seller exercises its right to terminate this Agreement pursuant to this Section 12.1.5 then Seller shall pay Purchaser One Hundred Thousand Dollars ($100,000) as consideration for such termination.
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Method of Termination. This Agreement constitutes the binding and irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby subject to the terms and conditions contained herein, the consideration for which is the covenants set forth in Sections 2, 3 and 4, and expenditures and obligations incurred and to be incurred by Purchaser, on the one hand, and by Seller, the Company and the Subsidiary, on the other hand, in respect of this Agreement, and this Agreement may be terminated or abandoned only as follows:
12.1.1. 8.1.1 By the unanimous mutual written consent agreement of Seller Buyer, on the one hand and PurchaserSellers, notwithstanding prior approval (if any) by on the board of directors of either Purchaser or Sellerother hand;
12.1.2. If 8.1.2 by Buyer, at any condition time, provided that Buyer is not then in default or breach in any material respect of its representations, warranties, covenants or agreements contained in this Agreement, if any Seller breaches or fails to perform in any respect any of its representations, warranties, covenants or agreements contained in this Agreement and such breach or failure to perform (i) would give rise to the Closing under Sections 8 failure of a condition set forth in Section 6.1.1 or Section 6.1.2 if such breach or failure to perform had occurred at the time scheduled for Closing, and 9 (ii) if such breach relates to a representation or warranty of the Sellers, such breach has not been satisfied cured by thirty (30) days following the Sellers’ receipt of written notice thereof (such 30-day period, “Sellers’ Cure Period”) or waivedwaived by Buyer;
8.1.3 by Sellers, at any time, provided that no Seller is then in default or breach in any material respect of its representations, warranties, covenants or agreements contained in this Agreement, if the Buyer breaches or fails to perform in any respect any of its representations, warranties, covenants or agreements contained in this Agreement and such breach or failure to perform (i) by 5:00 p.m. on would give rise to the one failure of a condition set forth in Section 6.2.1 or Section 6.2.2 if such breach or failure to perform had occurred at the time scheduled for Closing, and (1ii) year anniversary if such breach relates to a representation or warranty of the Effective Date or at Buyer, such other time and date as may be mutually agreed upon breach has not been substantially cured by the parties in writing, Seller may terminate this Agreement by thirty (30) days following Buyer’s receipt of written notice given to Purchaser thereof (such 30-day period, “Buyer’s Cure Period”) or waived by Sellers;
8.1.4 By Buyer after six (6) months from the date of this Agreement, plus the unexpired Seller’s Cure Period plus one day if Seller has neither (a) proximately contributed to the occurrence any of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor Section 6.1 hereof to which the obligations of Buyer are subject (b) failed to use its commercially reasonable efforts to satisfy other than the conditions set forth in Sections 8 and 9;
12.1.3. If any condition to the Closing under Sections 8 and 9 has Section 6.1.6) have not been satisfied (fulfilled or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time , and date as may be mutually agreed upon by the parties in writing, Purchaser may terminate this Agreement by written notice given to Seller if Purchaser has neither (a) proximately contributed to the occurrence of provided that the failure to satisfy fulfill such condition is not a result of a breach of warranty or representation or nonfulfillment of any covenant or agreement by Buyer contained in this Agreement; or
8.1.5 By the Sellers after six (6) months from the date of this agreement plus the unexpired Buyer’s Cure Period plus one day, if any of the conditions set forth in Sections 8 and 9 by such date, nor Section 6.2 hereof to which the obligations of the Sellers are subject (b) failed to use its commercially reasonable efforts to satisfy other than the conditions set forth in Sections 8 Section 6.2.5) have not been fulfilled or waived, and 9; or
12.1.4. By either Seller provided that the failure to fulfill such condition is not a result of a breach of warranty or Purchaser if (a) there shall be representation or nonfulfillment of any Law that makes consummation of the transactions contemplated herein illegal covenant or otherwise prohibited; or (b) any judgment, injunction, order or decree permanently enjoining any of the parties hereto from consummating the transactions contemplated herein is entered and such judgment, injunction, order or decree shall become final and non-appealable. Notwithstanding anything agreement by Sellers contained in this Section 12.1 to the contrary, no party hereto that is in breach of a material obligation under this Agreement shall be entitled to terminate this Agreement except with the prior written consent of the other party heretoAgreement.
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Sources: Asset Purchase Agreement (Shenandoah Telecommunications Co/Va/)
Method of Termination. This Agreement constitutes the binding and irrevocable agreement of the parties hereto to consummate the transactions contemplated hereby subject to the terms and conditions contained herein, the consideration for which is the covenants set forth in Sections 2, 3 and 4, and expenditures and obligations incurred and to be incurred by Purchaser, on the one hand, and by Seller, the Company and the Subsidiary, on the other hand, in respect of this Agreement, and this Agreement may be terminated or abandoned only as follows:
12.1.1. By the unanimous written consent of Seller and Purchaser, notwithstanding prior approval (if any) 8.1.1 by the board mutual written agreement of directors Buyer, on the one hand and Seller, on the other hand;
8.1.2 by Buyer, at any time, provided that Buyer is not then in default or breach in any material respect of either Purchaser its representations, warranties, covenants or agreements contained in this Agreement, if Seller breaches or fails to perform in any respect any of its representations, warranties, covenants or agreements contained in this Agreement and such breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.1.1 or Section 6.1.2 if such breach or failure to perform had occurred at the time scheduled for Closing, and (ii) if such breach relates to a representation or warranty of the Seller, such breach has not been cured by thirty (30) days following the Seller’s receipt of written notice thereof (such 30-day period, “Seller’s Cure Period”) or waived by Buyer;
8.1.3 by Seller, at any time, provided that Seller is not then in default or breach in any material respect of its representations, warranties, covenants or agreements contained in this Agreement, if the Buyer breaches or fails to perform in any respect any of its representations, warranties, covenants or agreements contained in this Agreement and such breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.2.1 or Section 6.2.2 if such breach or failure to perform had occurred at the time scheduled for Closing, and (ii) if such breach relates to a representation or warranty of the Buyer, such breach has not been substantially cured by thirty (30) days following Buyer’s receipt of written notice thereof (such 30-day period, “Buyer’s Cure Period”) or waived by Seller;
12.1.2. If 8.1.4 by Buyer or Seller, (i) if any condition to the Closing under Sections 8 and 9 has not been satisfied Governmental Authority of competent jurisdiction shall have issued an injunction or taken any other action (which injunction or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by action the parties in writing, Seller may terminate this Agreement by written notice given to Purchaser if Seller has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to hereto shall use its their commercially reasonable efforts (which shall not include any divestiture, commencement of litigation or other extraordinary act) to satisfy lift) that temporarily or permanently restrains, enjoins or otherwise prohibits the conditions set forth in Sections 8 and 9;
12.1.3. If any condition to the Closing under Sections 8 and 9 has not been satisfied (or waived) by 5:00 p.m. on the one (1) year anniversary of the Effective Date or at such other time and date as may be mutually agreed upon by the parties in writing, Purchaser may terminate this Agreement by written notice given to Seller if Purchaser has neither (a) proximately contributed to the occurrence of the failure to satisfy the conditions set forth in Sections 8 and 9 by such date, nor (b) failed to use its commercially reasonable efforts to satisfy the conditions set forth in Sections 8 and 9; or
12.1.4. By either Seller or Purchaser if (a) there shall be any Law that makes consummation of the transactions contemplated herein illegal or otherwise prohibited; or (b) any judgmentby this Agreement, injunction, order or decree permanently enjoining any of the parties hereto from consummating the transactions contemplated herein is entered and such judgment, injunction, order injunction or decree other action shall have become final and non-appealable. Notwithstanding anything ; or (ii) if the Closing shall not have occurred on or before December 15, 2010 or such other date, if any, as Buyer and Seller may agree in writing (the “End Date”); provided, however, that the right to terminate the Agreement under this Section 12.1 8.1.4 shall not be available to the contrary, no party hereto that is in breach any Party whose failure to comply with any provision of a material obligation under this Agreement shall be entitled to terminate this Agreement except with has been the prior written consent cause of, or resulted in, the failure of the other party heretoClosing to occur on or before the End Date;
8.1.5 by Buyer, pursuant to Section 5.23; or
8.1.6 by Buyer or Seller, as the case may be, if the closing conditions described in Section 6.1.11 or Section 6.2.6, respectively, have not been satisfied or such non-satisfaction has not been waived by both Parties prior the End Date.
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