Methods of Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time before the Closing: (a) by the mutual written agreement of the Selling Parties and Buyer; (b) by written notice from Selling Parties to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date; (c) by written notice from Selling Parties to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date; (d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date; (e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date; (f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f); (g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing; (h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and (i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event: (i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities; (ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate; (iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate; (iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions); (v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer; (vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and (vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such action.
Appears in 2 contracts
Sources: Purchase Agreement (Denbury Resources Inc), Purchase Agreement (Vanguard Natural Resources, LLC)
Methods of Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time before the Closing:
(a) by a. By the mutual written agreement consent of the Selling Parties DED and BuyerMAMM;
b. By MAMM, on a material breach on the part of the DED Companies or any of the DED Shareholders of any representation, warranty, covenant or agreement set forth in this Agreement, or if any representation or warranty of the DED Companies or any of the DED Shareholders shall become untrue, in either case such that any of the conditions set forth in Article VII hereof would not be satisfied (ba "DED Breach"), and such breach, if capable of cure, has not been cured within ten (10) days after receipt by the DED Companies and the DED Shareholders of a written notice from MAMM setting forth in detail the nature of such DED Breach;
c. By DED, upon a material breach on the part of MAMM of any representation, warranty, covenant or agreement set forth in this Agreement, or, if any representation or warranty of MAMM shall become untrue, in either case such that any of the conditions set forth in Article VI hereof would not be satisfied (a "MAMM Breach"), and such breach, if capable of cure, has not been cured within ten (10) days after receipt by MAMM of a written notice from DED setting forth in detail the nature of such MAMM Breach;
d. By either MAMM or DED, if the Closing shall not have consummated before March 11, 2011; provided, however, that this Agreement may be extended by written notice from Selling Parties to of either the Buyer specifying with particularity DED or MAMM if the applicable Breach, if Buyer has committed Closing shall not have been consummated as a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance DED Companies or MAMM having failed to receive all required regulatory approvals or consents with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate respect to this Agreement if such Breach is not cured by Buyer transaction or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(c) by written notice from Selling Parties to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breachentering of an order as described in this Agreement; and further provided, provided however, that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i8.1(d) shall not be the basis for Buyer available to assert either that Selling Parties have committed a Breach for any purpose party whose failure to fulfill any obligations under this AgreementAgreement has been the cause of, or that resulted in, the failure of the Closing to occur on or before this date; or
e. By either the DED or MAMM if a court of competent jurisdiction or governmental, regulatory or administrative agency or commission shall have issued an order, decree or ruling or taken any condition other action (which order, decree or ruling the parties hereto shall use its best efforts to Closing would fail lift), which permanently restrains, enjoins or has failed as a result of such actionotherwise prohibits the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Share Exchange Agreement (Mammatech Corp), Share Exchange Agreement (Mammatech Corp)
Methods of Termination. This Agreement may be terminated and in any of the transactions contemplated hereby may be abandoned at any time before the Closingfollowing ways:
(a) at any time on or before the Closing Date by the mutual written agreement consent in writing of the Selling Parties Seller and BuyerPurchaser;
(b) on the Closing Date by written notice from Selling Parties to Purchaser if the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing conditions set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion 6 of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is shall not cured have been met by Buyer Seller or Vanguard, as applicable, within thirty (30) days after the receipt waived in writing by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DatePurchaser;
(c) on the Closing Date by written notice from Selling Parties to Seller if the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing conditions set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion 7 of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is shall not cured have been met by Buyer Purchaser or Vanguard, as applicable, within thirty (30) days after the receipt waived in writing by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DateSeller;
(d) at any time on or before the Closing Date by written Purchaser if Seller shall have been in breach of any representation or warranty in any material respect (as if such representation or warranty had been made on and as of the date hereof and on the date of the notice from Buyer of breach referred to the Selling Parties specifying with particularity the applicable Breachbelow), if the Selling Parties have committed a Breachor in breach of any covenant, undertaking or obligation contained herein, and such Breach would result in breach has not been cured by the failure earlier of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is not cured within thirty (30) days after the receipt by giving of notice to the Buyer breaching party or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Closing Date;
(e) at any time on or before the Closing Date by written Seller if Purchaser shall have been in breach of any representation or warranty in any material respect (as if such representation or warranty had been made on and as of the date hereof and on the date of the notice from Buyer of breach referred to the Selling Parties specifying with particularity the applicable Breachbelow), if the Selling Parties have committed a Breachor in breach of any covenant, undertaking or obligation contained herein, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is breach has not been cured by the Selling Parties within earlier of thirty (30) days after the receipt by giving of notice to the Selling Parties breaching party or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Closing Date;
(f) by written notice from either Seller or Purchaser in writing at any time after any of the Selling Parties or Buyer to the other Partyregulatory authorities has denied, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1by final, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result appealable order, any application by Purchaser for approval of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f)transactions contemplated hereby;
(g) by written notice Purchaser in writing at any time after 60 days from Buyer the date hereof, if by that date the landlord on the Lease shall not have consented in writing to the Selling Partiesassignment to, if after and assumption by, Purchaser of the date of this Agreement a Material Adverse Effect has occurred Lease under the current terms and is continuingconditions applicable to Seller;
(h) by written notice from Purchaser or Seller in writing if the Selling Parties to Buyertransactions contemplated hereby are not consummated on or before October 15, 1997, provided that if (i) Buyer elects for there to be an Equity Portion consummation of the Purchase Price in accordance with Section 1.3 and (ii) after transaction is postponed beyond this date solely due to failure to receive regulatory approvals, Purchaser or Seller may extend this date to December 1, 1997 by notice to the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; andother;
(i) by written notice from Buyer to Seller if Century Bancshares, Inc., the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entitiesbank holding company for Purchaser, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from have filed on or before August 20, 1997 with the receipt Securities and Exchange Commission a registration statement covering shares of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000its common stock; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such action.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Century Bancshares Inc)
Methods of Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time before prior to the Closing:
(a) by the By mutual written agreement of the Selling Parties and BuyerParties;
(b) by written notice from Selling Parties to the Buyer specifying with particularity the applicable BreachBy Seller, if Buyer the Closing has committed not occurred by November 25, 2013, provided that a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate default by Seller under this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after responsible for the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DateClosing not having occurred;
(c) by written notice from Selling Parties to the Buyer specifying with particularity the applicable BreachBy Purchaser, if Buyer the Closing has committed not occurred by November 25, 2013, provided that a Breach, and such Breach would result in the failure of default by Purchaser or any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate Guarantors under this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after responsible for the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DateClosing not having occurred;
(d) By Seller in writing if Purchaser or any of the Guarantors shall (i) fail to perform any of their respective covenants or agreements contained herein required to be performed by written notice from Buyer them prior to the Selling Parties specifying with particularity the applicable Breachdate of such termination, or (ii) breach any of their respective representations or warranties contained herein or if the Selling Parties have committed any such representations or warranties become inaccurate, in each case so as to cause a Breach, and such Breach would result in the failure of the condition to the Closing set forth in Section 7.2(e); providedto be incapable of satisfaction, if such Breach is curable through the exercise of commercially reasonable effortswhich failure, then Buyer may only terminate this Agreement if such Breach breach or inaccuracy is not cured within thirty fifteen (3015) days after the receipt by the Buyer or the Selling Parties, as the case may be, Seller has notified Purchaser in writing of a Notification provided its intent to terminate this Agreement pursuant to this Section 6.6 specifying with particularity such Breach11.01(d); provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;or
(e) By Purchaser in writing if Seller shall (i) fail to perform any of its covenants or agreements contained herein required to be performed by written notice from Buyer it prior to the Selling Parties specifying with particularity the applicable Breachdate of such termination, or (ii) breach any of its representations or warranties contained herein or if the Selling Parties have committed any such representations or warranties become inaccurate, in each case so as to cause a Breach, and such Breach would result in the failure of the condition to the Closing set forth in Section 7.2(d); providedto be incapable of satisfaction, if such Breach is curable through the exercise of commercially reasonable effortswhich failure, then the Buyer may only terminate this Agreement if such Breach breach or inaccuracy is not cured by the Selling Parties within thirty fifteen (3015) days after the receipt by the Selling Parties or Buyer, as the case may be, Purchaser has notified Seller in writing of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right its intent to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such action11.01(e).
Appears in 1 contract
Methods of Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time before terminated prior to the ClosingClosing Date as follows:
(a) at any time by the mutual written agreement of the Selling Parties Seller and Buyer;; or
(b) by written notice from Selling Parties either Seller or Buyer upon the material breach of this Agreement by the other, to the Buyer specifying with particularity the applicable Breachbe effective, if Buyer has committed a Breachcurable, upon the breaching Party’s failure to cure within five (5) Business Days of notice given, and such Breach would result in if incurable, upon notice given, provided that the failure of any condition Party seeking to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance terminate has complied with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate and fulfilled its obligations and undertakings under this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breachin all material respects; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;or
(c) by written notice from Selling Parties to Seller, in the Buyer specifying with particularity following events:
(1) at any time after any final, non-appealable decision is made by the applicable BreachGovernmental Authority denying any Required Regulatory Approval; or
(2) at any time after January 30, 2009 if the Closing has not yet occurred; or
(3) at any time effective upon written notification to Buyer has committed a Breach, and such Breach would result in the failure event that the MPSC has issued an order including the Colstrip 4 Interests in the rate base of any condition Seller at a value at least equal to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d)plus the sum of (i) the Buyer Termination Fee and (ii) the Make-Whole Premium less (iii) the Third Party Closing Costs; provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that the event triggering Seller’s termination right did not result from the failure by Seller to fulfill any right of Buyer undertaking or Vanguard, as applicable, to cure a Breach will terminate commitment provided for herein on the Outside Date;part of Seller that is required to be fulfilled on or prior to the Closing Date or any such applicable date.
(d) by written notice from Buyer Buyer, in the following events:
(1) at any time prior to the Selling Parties specifying Closing if a Material Casualty Loss has occurred that is not completely covered by insurance or, at Seller’s option, by a combination of insurance and a reduction in the Purchase Price in an amount equal to the reasonable commercial value of such loss that is not covered by insurance, as determined by Seller with particularity Buyer’s consent, not to be unreasonably withheld;
(2) at any time after any final, non-appealable decision is made by the applicable BreachGovernmental Authority denying any Required Regulatory Approval;
(3) at any time after January 30, 2009 if the Closing has not yet occurred;
(4) at any time effective upon written notification to Seller in the event that the MPSC has issued an order including the Colstrip 4 Interests in the rate base of Seller at a value at least equal to the Purchase Price plus the sum of (i) the Buyer Termination Fee and (ii) the Make-Whole Premium less (iii) the Third Party Closing Costs;
(5) at any time after November 30, 2008, if any order or decree by any federal or state court or Governmental Authority exists which would delay or otherwise impair the Selling Parties have committed a Breach, and such Breach would result in the failure consummation of the condition sale of the Colstrip 4 Interests;
(6) at any time if any Project User exercises a right of first refusal offered to Closing set forth it by the Seller (pursuant to the terms of the Ownership and Operations Agreement);
(7) at any time in accordance with Section 7.2(e7.8;
(8) if (i) Seller has failed to deliver to the Buyer the ROFR Resolution Notice by October 15, 2008 or (ii) Seller has failed to deliver to the Buyer the MPSC Resolution Notice by November 30, 2008; or
(9) at any time if the Make-Whole Premium exceeds $8,500,000 (assuming Buyer has used Commercially Reasonable Efforts to negotiate in good faith such amount); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then that Buyer may only terminate this Agreement if such Breach is shall not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
clause (g9) by written notice from Buyer if Seller, in its sole and absolute discretion, elects to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of reduce the Purchase Price in accordance with Section 1.3 and (ii) after by the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any amount of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money Make-Whole Premium that is in excess of $10,000,000 in 8,500,000 provided, that the aggregate;
(iii) event triggering Buyer’s termination right did not result from the acquisition failure by Buyer to fulfill any undertaking or commitment provided for herein on the part of any material properties Buyer that is required to be fulfilled on or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition prior to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP Closing Date or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actionapplicable date.
Appears in 1 contract
Methods of Termination. This Agreement may be terminated and in any of the transactions contemplated hereby may be abandoned at any time before the Closingfollowing ways:
(a) by either Purchaser or Seller, in writing five calendar days in advance of such termination, if the mutual written agreement of the Selling Parties and BuyerClosing has not occurred by December 31, 2007;
(b) by written notice from Selling Parties at any time on or prior to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt Effective Time by the Selling Parties or Buyer, as the case may be, mutual consent in writing of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DatePurchaser and Seller;
(c) by written notice from Selling Parties to Purchaser in writing if the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing conditions set forth in Section 7.3(bArticle VII (with the exception of delivery of items required to be delivered at Closing) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is shall not cured have been met by Buyer Seller or Vanguard, as applicable, waived in writing by Purchaser within thirty (30) 30 calendar days following the date of all approvals by regulatory agencies and after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Dateall statutory waiting periods have expired;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, Seller in writing if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing conditions set forth in Section 7.2(e); provided, if such Breach is curable through the exercise Article VIII of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is shall not cured have been met by Purchaser or waived in writing by Seller within thirty (30) 30 calendar days following the date of all approvals by regulatory agencies and after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Dateall statutory waiting periods have expired;
(e) by written notice from Buyer any time prior to the Selling Parties specifying with particularity the applicable BreachEffective Time, by Purchaser or Seller in writing if the Selling Parties other shall have committed a Breachbeen in breach of any representation and warranty in any material respect (as if such representation and warranty had been made on and as of the date hereof and on the date of the notice of breach referred to below), or in breach of any covenant, undertaking or obligation contained herein, and such Breach would result in breach has not been cured by the failure earlier of 30 calendar days after the condition giving of notice to Closing set forth in Section 7.2(d)the breaching party of such breach or the Effective Time; provided, if however, that there shall be no cure period in connection with any breach of Section 6.3, so long as such Breach is curable through the exercise breach by Purchaser was not caused by any action or inaction of commercially reasonable effortsSeller, then the Buyer and Seller may only terminate this Agreement immediately if such Breach is regulatory applications are not cured by the Selling Parties filed within thirty (30) 30 calendar days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;as provided in that Section; or
(hf) by written notice from the Selling Parties to Buyer, if (i) Buyer elects Seller or Purchaser in writing at any time after any applicable regulatory authority has denied approval of any application of Purchaser for there to be an Equity Portion approval of the Purchase Price in accordance with Section 1.3 transactions contemplated herein, and (ii) after all applicable appeals have been exhausted or the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; andtime for filing such appeals shall have expired.
(ig) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership EntitiesPurchaser in writing, unless Buyer consents as expressly provided for in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securitiesSection 1.10;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such action.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (New Peoples Bankshares Inc)
Methods of Termination. This Agreement may be terminated and the transactions contemplated hereby Contemplated Transactions may be abandoned at any time before prior to the ClosingClosing as follows:
(a) by the mutual written agreement consent of the Selling Contributor Parties and Buyerthe Acquirer Parties;
(b) by written notice from Selling Parties to either the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Contributor Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(c) by written notice from Selling Parties to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable BreachAcquirer Parties, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is has not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied occurred on or before February 1December 31, 2011 2015 (the “Outside Date”); provided, or if satisfied prior theretohowever, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f)7.1(b) shall not be available to the Contributor Parties if any Contributor Party, or to the Acquirer Parties if any Acquirer Party, has failed to fulfill, in all material respects, any of its obligation under this Agreement;
(c) by the Acquirer Parties, if there shall have been a breach of any representation, warranty, covenant or agreement on the part of any Contributor Party contained in this Agreement such that the conditions set forth in Section 6.3(a) or 6.3(b) would not be satisfied, and such breach is not capable of being cured or, if capable of being cured, shall not have been cured prior to the earlier of (x) the Outside Date and (y) 30 days after notice of the breach is provided to the Contributor Parties; provided, that the Acquirer Parties shall not have the right to terminate this Agreement pursuant to this Section 7.1(c) if any Acquirer Party is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement;
(d) by the Contributor Parties, if there shall have been a breach of any representation, warranty, covenant or agreement on the part of any Acquirer Party contained in this Agreement such that the conditions set forth in Section 6.4(a) or 6.4(b) would not be satisfied, and such breach is not capable of being cured or, if capable of being cured, shall not have been cured prior to the earlier of (x) the Outside Date and (y) 30 days after notice of the breach is provided to the Acquirer Parties; provided, that the Contributor Parties shall not have the right to terminate this Agreement pursuant to this Section 7.1(d) if any Contributor Party is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement;
(e) by the Acquirer Parties, if there shall have occurred after the Effective Date an Iroquois Material Adverse Effect that, with the exercise of Reasonable Efforts, cannot reasonably be expected to be cured prior to the Outside Date.
(f) by the Contributor Parties, if there shall have occurred after the Effective Date a DM Material Adverse Effect that, with the exercise of Reasonable Efforts, cannot reasonably be expected to be cured prior to the Outside Date; or
(g) by written notice from Buyer to either the Selling Contributor Parties or the Acquirer Parties, if after the date of this Agreement a Material Adverse Effect has occurred Effective Date any Governmental Authority shall have issued an Order or taken any other action enjoining or otherwise prohibiting the Contemplated Transactions and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase Order or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business action shall have become final and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actionnonappealable.
Appears in 1 contract
Sources: Contribution Agreement (Dominion Midstream Partners, LP)
Methods of Termination. This Agreement The transactions contemplated herein may be terminated and the transactions contemplated hereby may be and/or abandoned at any time before but not later than the Closing:
(a) by the By mutual written agreement consent of the Selling Parent Parties and Buyerthe Target;
(b) By the Parent Parties (if they are not then in material breach of their obligations hereunder) if (i) a material default or breach shall be made by written notice from Selling Parties the Target with respect to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, due and timely performance of any of their covenants and agreements contained herein and such Breach would result default is not cured within thirty days, or (ii) if the Target's representations and warranties, (x) made without any materiality standard, are not true and correct in all material respects as of the failure date hereof and as of the Closing Date or (y) made with any materiality standard, are not true and correct in all respects as of the date hereof and as of the Closing Date;
(c) By the Target (if it is not then in material breach of its obligations hereunder) if (i) a material default or breach shall be made by the Parent Parties with respect to the due and timely performance of any condition of their covenants and agreements contained herein and such default or breach is not cured within thirty days, or (ii) if any of the Parent Parties' representations and warranties, (x) made without any materiality standard, are not true and correct in all material respects as of the date hereof and as of the Closing Date or (y) made with any materiality standard, are not true and correct in all respects as of the date hereof and as of the Closing Date;
(d) By either the Parent Parties or the Target if, pursuant to Section 8.3(e), the Parent is unable to obtain the Fairness Opinion.
(e) By either the Target or the Parent Parties if the conditions to Closing set forth in Section 7.3(c8.1(e) or, if Buyer elects to provide an Equity Portion will not be met because neither of the Purchase Price first two test wells resulted in accordance with Section 1.3, Section 7.3(e); provided, finding "commercial quantities" of oil and gas ▇▇ provided under Sections 6.5 and 8.3(l) and the Second Tranche Investment has not been consummated within 15 days of the date the Initial Test Wells Procedure Results Report is delivered to all Parties.
(▇) By either the Target or the Parent Parties (if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach terminating Party is not cured by Buyer or Vanguard, as applicable, within thirty (30then in material breach of its obligations hereunder) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(c) by written notice from Selling Parties to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is Effective Time has not cured within thirty (30) days after the receipt occurred by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice six months from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from for any reason unless the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actionan extension in writing.
Appears in 1 contract
Methods of Termination. This Agreement may be terminated and in any of the transactions contemplated hereby may be abandoned at any time before the Closingfollowing ways:
(a) by either Seller or Purchaser in writing five calendar days in advance of such termination, if the mutual written agreement of the Selling Parties and BuyerClosing has not occurred by May 31, 1998;
(b) by written notice from Selling Parties at any time on or prior to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt Effective Time by the Selling Parties or Buyer, as the case may be, mutual consent in writing of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DateSeller and Purchaser;
(c) by written notice from Selling Parties to Purchaser in writing if the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing conditions set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion Article VIII of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is shall not cured have been met by Buyer Seller or Vanguard, as applicable, waived in writing by Purchaser within thirty (30) 31 calendar days following the date of all approvals by regulatory agencies and after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Dateall statutory waiting periods have expired;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, Seller in writing if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing conditions set forth in Section 7.2(e); provided, if such Breach is curable through the exercise Article IX of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is shall not cured have been met by Purchaser or waived in writing by Seller within thirty (30) 31 calendar days following the date of all approvals by regulatory agencies and after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Dateall statutory waiting periods have expired;
(e) by written notice from Buyer any time prior to the Selling Parties specifying with particularity the applicable BreachEffective Time, by Seller or Purchaser in writing if the Selling Parties other shall have committed a Breachbeen in breach of any representation and warranty in any material respect (as if such representation and warranty had been made on and as of the date hereof and on the date of the notice of breach referred to below), or in breach of any covenant, undertaking or obligation contained herein, and such Breach would result in breach has not been cured by the failure earlier of 30 calendar days after the condition giving of notice to Closing set forth in Section 7.2(d)the breaching party of such breach or the Effective Time; provided, if however, that there shall be no cure period in connection with any breach of Section 7.3 hereof, so long as such Breach is curable through the exercise breach by Purchaser was not caused by any action or inaction of commercially reasonable effortsSeller, then the Buyer and Seller may only terminate this Agreement immediately if such Breach is regulatory applications are not cured by the Selling Parties filed within thirty (30) 30 calendar days after the receipt by the Selling Parties or Buyer, date of this Agreement as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, in that any right of the Selling Parties to cure a Breach will terminate on the Outside DateSection;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if Seller in writing at any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction time after any applicable regulatory authority has denied approval of such condition was not the result any application of Purchaser for approval of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);transactions contemplated herein; or
(g) by written notice from Buyer to the Selling Partieseither Seller or Purchaser, in writing five calendar days in advance of such termination, if after the date of this Agreement a Material Adverse Effect has occurred and Barn▇▇▇ ▇▇▇nsaction is continuing;
(h) by written notice from the Selling Parties terminated prior to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actioncompletion.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Republic Bancshares Inc)
Methods of Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time before the Closing:
(a) by the mutual written agreement of the Selling Parties Seller and Buyer;
(b) by written notice from Selling Parties Seller to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e)6.3; provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties Seller may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, Buyer of a Notification provided pursuant to Section 6.6 9.4 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, Breach to cure a Breach will terminate on the Outside Date;
(c) by written notice from Selling Parties to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(d) by written notice from Buyer to the Selling Parties Seller specifying with particularity the applicable Breach, if the Selling Parties have Seller has committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e)6.2; provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, Seller of a Notification provided pursuant to Section 6.6 9.4 specifying with particularity such Breach; provided, further, that any right of Selling Parties Seller to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(fd) by written notice from either the Selling Parties Seller or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1April 30, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f7.1(d);
(ge) by written notice from Buyer to the Selling PartiesSeller, if after the date of this Agreement a Material Adverse Effect has occurred and is continuingcontinuing with regard to the Seller;
(hf) by written notice from the Selling Parties Seller to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, Agreement a Vanguard Material Adverse Effect with regard to Alamo has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such action.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Alamo Energy Corp.)
Methods of Termination. This Agreement may be terminated and the transactions herein contemplated hereby may be abandoned at any time before the Closingtime:
(a) by the mutual written agreement consent of the Selling Parties Purchaser and BuyerSeller;
(b) by written notice from Selling Parties Purchaser or Seller if the transactions contemplated by this Agreement are not consummated on or before September 1, 2004; provided that if any party has breached or defaulted with respect to the Buyer specifying with particularity the applicable Breachits obligations under this Agreement on or before such date, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties party may only not terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to this Section 6.6 specifying with particularity 12.1(b), and the other party to this Agreement may at its option enforce its rights against such Breach; providedbreaching or defaulting party and seek any remedies against such party, further, that any right of Buyer or Vanguard, in either case as applicable, to cure a Breach will terminate on the Outside Dateprovided hereunder and by applicable Regulation;
(c) by written notice from Selling Parties Purchaser in the event that Seller has breached any representation, warranty, covenant or agreement contained in this Agreement in any material respect (or, with respect to any representation or warranty qualified by terms such as “material,” “Material Adverse Effect” or "Material Adverse Change," in any respect), Purchaser has notified Seller of the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breachbreach, and such Breach would result in the failure breach has continued without cure for a period of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion fifteen days after the notice of the Purchase Price in accordance with Section 1.3, Section 7.3(d)breach; provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, furtherhowever, that any right for purposes of Buyer or Vanguardthis Section 12.1(c), the representations contained in Section 3.16 regarding "Environmental Laws as applicable, now existing" shall instead be deemed to cure a Breach will terminate read "Environmental Laws as existing on the Outside Datedate of Seller's breach of such representations;"
(d) by written notice from Buyer Seller in the event that Purchaser has breached any representation, warranty, covenant or agreement contained in this Agreement in any material respect (or, with respect to any representation or warranty qualified by terms such as “material” or “material adverse effect”, in any respect), Seller has notified Purchaser of the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breachbreach, and such Breach would result in the failure breach has continued without cure for a period of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is not cured within thirty (30) fifteen days after the receipt by the Buyer or the Selling Parties, as the case may be, notice of a Notification provided pursuant to Section 6.6 specifying with particularity such Breachbreach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;or
(e) by written notice from Buyer to either Seller or Purchaser if consummation of the Selling Parties specifying with particularity transactions contemplated hereby would violate any nonappealable final Order of any Authority having competent jurisdiction or if any Authority has taken any other action restraining, enjoining or otherwise prohibiting the applicable Breach, if consummation of the Selling Parties have committed a Breach, transactions contemplated hereby and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, action shall be final and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actionnonappealable.
Appears in 1 contract
Methods of Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time before the Closing:
(a) by By the mutual written agreement consent of the Selling Parties DE Qinba and BuyerParent;
(b) By Parent, upon a material breach on the part of DE Qinba or the Majority Qinba Shareholders of any representation, warranty, covenant or agreement set forth in this Agreement, or if any representation or warranty of DE Qinba or any of the Majority Qinba Shareholders shall become untrue, in either case such that any of the conditions set forth in Article VII hereof would not be satisfied (a “DE Qinba Breach”), and such breach, if capable of cure, has not been cured within ten (10) days after receipt by DE Qinba and the Majority Qinba Shareholders of a written notice from Selling Parties to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set Parent setting forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion detail the nature of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such DE Qinba Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(c) By DE Qinba, upon a material breach on the part of Parent or Acquisition Subsidiary of any representation, warranty, covenant or agreement set forth in this Agreement, or, if any representation or warranty of Parent or Acquisition Subsidiary shall become untrue, in either case such that any of the conditions set forth in Article VI hereof would not be satisfied (a “Parent Breach”), and such breach, if capable of cure, has not been cured within ten (10) days after receipt by Parent of a written notice from Selling Parties to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set DE Qinba setting forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion detail the nature of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Parent Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable BreachBy either Parent or DE Qinba, if the Selling Parties Closing shall not have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is not cured within thirty consummated before ninety (3090) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breachdate hereof; provided, furtherhowever, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) this Agreement may be extended by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, of either DE Qinba or Parent if the Selling Parties Closing shall not have committed been consummated as a Breach, and such Breach would result in the failure of the condition DE Qinba or Parent having failed to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate receive all required regulatory approvals or consents with respect to this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties transaction or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breachentering of an order as described in this Agreement; and further provided, provided however, that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i9.1(d) shall not be the basis for Buyer available to assert either that Selling Parties have committed a Breach for any purpose party whose failure to fulfill any obligations under this AgreementAgreement has been the cause of, or that resulted in, the failure of the Closing to occur on or before this date; or
(e) By either DE Qinba or Parent if a court of competent jurisdiction or governmental, regulatory or administrative agency or commission shall have issued an order, decree or ruling or taken any condition other action (which order, decree or ruling the parties hereto shall use its best efforts to Closing would fail lift), which permanently restrains, enjoins or has failed as a result of such actionotherwise prohibits the transactions contemplated by this Agreement.
Appears in 1 contract
Methods of Termination. This Subject to the other provisions of this Article 8, this Agreement may be terminated and the transactions contemplated hereby herein may be abandoned at any time, whether before or after the Parent Shareholder Approval has been obtained, at any time before prior to the Closing:
(a) by the By mutual written agreement consent of Parent and the Selling Parties and Buyer;Company; or
(b) by By either Parent or the Company, on 30 days’ written notice from Selling Parties to the Buyer specifying with particularity the applicable Breachother Party, if Buyer the Merger shall not have been consummated prior to the Termination Date; provided, that the terminating Party is not then in material breach of its covenants or other agreements contained in this Agreement; provided, further, that, if Parent is the terminating Party and the condition set forth in Section 6.5(b) is the sole condition in Article 6 that has committed not been satisfied or waived as of such date (excluding conditions that, by their nature, are to be satisfied at the Closing and that the Company is capable of satisfying at the Closing), then, if within such 30 day notice period the Stockholder agrees in writing to (i) indemnify Parent in accordance with Article 10 for the Company Schedule Adverse Event and (ii) increase the number of Indemnification Shares under Section 2.2(c) (by deducting additional Merger Consideration Shares from the shares of Parent Common Stock to be issued and delivered to the Stockholder pursuant to Section 2.3(b)) by an amount equal to the total reasonably anticipated impact of the Company Schedule Adverse Event divided by the Merger Share Price (rounded to the nearest whole share) (which additional Indemnification Shares shall be placed in a Breachseparate escrow account which shall be solely available for indemnification for the Company Schedule Adverse Event in accordance with Article 10 and released in accordance with Section 10.5): (A) the condition set forth in Section 6.5(b) shall be deemed satisfied, and (B) such Breach notice of termination shall be deemed to have been revoked and withdrawn by Parent; and provided, further, that, if the Company is the terminating Party and the condition set forth in Section 7.5(b) is the sole condition in Article 7 that has not been satisfied or waived as of such date (excluding conditions that, by their nature, are to be satisfied at the Closing and that Parent is capable of satisfying at the Closing), then, if within such 30 day notice period the Parent agrees in writing to issue and deliver to Stockholder (at the Closing, or, if later, promptly after the determination of the amount of the impact of the Parent Schedule Adverse Event incurred by Parent or any of its Subsidiaries) a number of validly issued, fully paid and nonassessable shares of Parent Common Stock equal to the reasonably anticipated impact of the Parent Schedule Adverse Event causing such condition to fail divided by the Merger Share Price (rounded to the nearest whole share): (A) the condition set forth in Section 7.5(b) shall be deemed satisfied, and (B) such notice of termination shall be deemed to have been revoked and withdrawn by the Company. Notwithstanding the foregoing, if the issuance of such additional shares would cause the Stockholder’s post-Closing ownership percentage to exceed the Maximum Percentage, then Parent shall pay the Stockholder in immediately available funds an amount equal to the value of such incremental shares (based on the Merger Share Price) that if issued would otherwise cause the Stockholder to exceed the Maximum Percentage, but only to the extent that such cash payment will not cause the Merger to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code; or
(c) By Parent if the Company has breached any representation, warranty, covenant or agreement set forth in this Agreement, which breach (i) would result in the failure of any a condition to Closing set forth in Section 7.3(c6.1 or Section 6.2, and (ii) or, if Buyer elects remains uncured for 30 days after Parent shall have given the Company written notice of such breach (which notice shall state Parent’s intention to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to this Section 6.6 specifying with particularity such Breach8.1(c) if not so cured); providedprovided that Parent shall not be permitted to terminate this Agreement pursuant to this Section 8.1(c) if Parent or Merger Subsidiary is then in material breach of any of their respective representations, furtherwarranties, that any right of Buyer covenants or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;other agreements contained in this Agreement; or
(cd) by written notice from Selling Parties to By the Buyer specifying with particularity the applicable BreachCompany if Parent or Merger Subsidiary has breached any representation, if Buyer has committed a Breachwarranty, and such Breach covenant or agreement set forth in this Agreement, which breach (i) would result in the failure of any a condition to Closing set forth in Section 7.3(b7.1 or Section 7.2, and (ii) or, if Buyer elects remains uncured for 30 days after the Company shall have given Parent written notice of such breach (which notice shall state the Company’s intention to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to this Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(d8.1(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(enot so cured); provided, if such Breach is curable through provided that the exercise of commercially reasonable efforts, then Buyer may only Company shall not be permitted to terminate this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to this Section 6.6 specifying with particularity such Breach8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or other agreements contained in this Agreement; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;or
(e) by written notice from Buyer to By Parent or the Selling Parties specifying with particularity Company if any court of competent jurisdiction or any other Governmental Authority has issued a judgment, order, injunction, decree or ruling or taken any other action, in each case permanently enjoining, restraining or otherwise prohibiting the applicable Breach, if the Selling Parties have committed a Breach, transactions contemplated hereby and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d)judgment, order, injunction, decree, ruling or other action shall have become final and non-appealable; provided, if such Breach is curable through that neither Parent nor the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will Company shall have the right to terminate this Agreement under pursuant to this Section 8.1(e) if any action of such Party or failure of such Party to perform or comply with the covenants and agreements of such Party set forth in this Agreement shall have been the primary cause of, or resulted primarily in, any such judgment, order, injunction, decree, ruling or other action; or
(f) By Parent or the Company if any Party receives a definitive written notice or determination from any Gaming Authority or the staff of any Gaming Authority that any of the Gaming Approvals set forth on Section 6.3(c) of the Parent Disclosure Schedule or Section 7.3(c) of the Company Disclosure Schedule will not be granted; provided, that neither Parent or the Company shall have the right to terminate this Agreement pursuant to this Section 8.1(f);) if any action of such Party or failure of such Party to perform or comply with the covenants and agreements of such Party set forth in this Agreement shall have been the primary cause of, or resulted primarily in, any such Gaming Authority’s refusal to grant such Gaming Approval; or
(g) by written notice from Buyer By the Company if (i) the Parent Shareholder Approval is not obtained at the Parent Special Meeting, or (ii) a Triggering Event has occurred at any time prior to receipt of the Parent Shareholder Approval; or
(h) By Parent, if prior to receipt of the Parent Shareholder Approval: (i) the Parent Board of Directors has received a Superior Proposal, (ii) Parent has complied with the provisions of Section 5.11, and (iii) prior to or concurrently with such termination, Parent pays the Termination Fee to the Selling Parties, Company in accordance with Section 8.3; or
(i) By the Company if at Closing the Company Shareholder Percentage (calculated without giving effect to the proviso in Section 2.2(b)(iv))) would exceed the Maximum Percentage and the Parties have not executed an amendment or supplement to this Agreement to effect the transfer of Additional Consideration to the Stockholder at the Closing.
(j) By the Company if the Stockholder has delivered a Company Tax Event Notice to Parent and the Parties have not amended the Merger Agreement as contemplated by Section 5.24 within 20 days after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actionCompany Tax Event Notice.
Appears in 1 contract
Methods of Termination. This Agreement may be terminated and the transactions herein contemplated hereby may be abandoned at any time before prior to the Closing:
(a) by the mutual written agreement consent of the Selling Parties Sellers’ Representative, the Company and the Buyer;
(b) by the Buyer or the Sellers’ Representative at any time after July 2, 2010, if the Closing shall not have occurred and the party hereto seeking termination (which shall mean the Sellers, the Holding Companies and the Company in the event that the Sellers’ Representative seeks to terminate this Agreement) is not in material violation or breach of their respective representations, warranties, covenants or agreements contained in this Agreement;
(c) by the Buyer by written notice from Selling Parties to the Buyer specifying with particularity the applicable BreachSellers’ Representative, if Buyer has committed upon a Breach, and such Breach would result in the failure breach of any condition representation, warranty, covenant or agreement on the part of any Seller, any Holding Company, or the Company (including representations and warranties made by the Company with respect to Closing the Subsidiaries) set forth in Section 7.3(c) orthis Agreement such that if not cured, if Buyer elects to provide an Equity Portion of the Purchase Price conditions set forth in accordance with Section 1.3Sections 8.1, Section 7.3(e)8.2 and 8.3 would not be satisfied; provided, that the Buyer may not terminate this Agreement pursuant to this Section 11.1(c) if (i) the Buyer shall have materially breached this Agreement or (ii) such Breach breach by any Seller, any Holding Company or the Company is curable by such breaching party, through the exercise of commercially reasonable efforts, then within thirty (30) days after such breaching party’s receipt of written notice from the Selling Parties Buyer of such breach hereunder and the breaching party continues to exercise commercially reasonable efforts to cure such breach through such thirty (30)-day period and such breach is cured within thirty (30) days after the Sellers’ Representative’s receipt of written notice from the Buyer of such breach;
(d) by the Sellers’ Representative by written notice to the Buyer, upon a breach of any representation, warranty, covenant or agreement on the part of the Buyer set forth in this Agreement such that if not cured, the condition set forth in Sections 9.1 and 9.2 would not be satisfied; provided, that the Sellers’ Representative may only not terminate this Agreement pursuant to this Section 11.1(d) if (i) any Seller, any Holding Company, or the Company shall have materially breached this Agreement or (ii) such Breach breach by the Buyer is not cured curable by Buyer or Vanguardthe Buyer, as applicablethrough the exercise of commercially reasonable efforts, within thirty (30) days after the Buyer’s receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(c) by written notice from Selling Parties to the Sellers’ Representative of a breach by the Buyer specifying with particularity hereunder and the applicable Breach, if Buyer has committed a Breach, continues to exercise commercially reasonable efforts to cure such breach through such thirty (30)-day period and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties Sellers’ Representative of such breach; or
(e) by either the Buyer or the Sellers’ Representative, if a court or Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated or entered any law, judgment, decree, injunction or other similar order (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits the consummation of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actiontransactions contemplated hereby.
Appears in 1 contract
Sources: Securities Purchase and Sale Agreement (Corinthian Colleges Inc)
Methods of Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time before the Closing:
(a) by the mutual written agreement of the Selling Parties and Buyer;
(b) by written notice from Selling Parties to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate ter minate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(c) by written notice from Selling Parties to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially commercia lly reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section S ection 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this th is Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such action.
Appears in 1 contract
Sources: Purchase Agreement
Methods of Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time before the Closing:
(a) by By the mutual written agreement consent of the Selling Parties POM and BuyerDEAC;
(b) By DEAC, on a material breach on the part of POM of any representation, warranty, covenant or agreement set forth in this Agreement, or if any representation or warranty of POM shall become untrue, in either case such that any of the conditions set forth in Article VII hereof would not be satisfied (a "POM Breach"), and such breach, if capable of cure, has not been cured within twenty (20) business days after receipt by POM of a written notice from Selling Parties to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set DEAC setting forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion detail the nature of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such POM Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(c) By POM, upon a material breach on the part of DEAC of any representation, warranty, covenant or agreement set forth in this Agreement, or, if any representation or warranty of DEAC shall become untrue, in either case such that any of the conditions set forth in Article VI hereof would not be satisfied (a "DEAC Breach"), and such breach, if capable of cure, has not been cured within twenty (20) business days after receipt by DEAC of a written notice from Selling Parties to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set POM setting forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion detail the nature of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such DEAC Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(d) By either DEAC or POM, if the Second Closing shall not have consummated before August 14, 2016, or if after the Second Closing, the Third Closing shall not have consummated before December 31, 2016; provided, however, that this Agreement may be extended by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, of either POM or DEAC if the Selling Parties Second Closing or Third Closing shall not have committed been consummated as a Breach, and such Breach would result in the failure of the condition POM or DEAC having failed to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate receive all required regulatory approvals or consents with respect to this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer transaction or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breachentering of an order as described in this Agreement; and further provided, provided however, that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f8.2(d) shall not be available to any party whose failure to fulfill any obligations under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before this date;
(e) By either POM or DEAC if a court of competent jurisdiction or governmental, regulatory or administrative agency or commission shall have issued an order, decree or ruling or taken any other action (which order, decree or ruling the parties hereto shall use its best efforts to lift), which permanently restrains, enjoins or otherwise prohibits the transactions contemplated by this Agreement;
(f) By either POM or DEAC if the other party breaches any of its covenants in Section 4.3 hereof in any material respect; OR
(g) by written notice from Buyer to the Selling Parties, By either POM if after the date of this Agreement a DEAC Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after occurs following the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actionhereof.
Appears in 1 contract
Methods of Termination. This Agreement may be terminated and the transactions herein contemplated hereby may be abandoned at any time before the Closingtime:
10.1.1 By mutual consent of the Purchaser and Sellers;
10.1.2 By the Sellers in writing, without liability, if the Purchaser shall (a) fail to perform in any material respect its agreements contained herein required to be performed by it on or prior to the mutual written agreement of the Selling Parties and Buyer;
Closing Date; or (b) by written notice from Selling Parties to the Buyer specifying with particularity the applicable Breachmaterially breach any of its representations, if Buyer has committed a Breachwarranties or covenants contained herein, and such Breach would result in the which failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach or breach is not cured by Buyer or Vanguard, as applicable, within thirty ten (3010) days after the receipt by Sellers have notified the Selling Parties or Buyer, as the case may be, Purchaser of a Notification provided pursuant their intent to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(c) by written notice from Selling Parties to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement pursuant to this Section 10.1.2;
10.1.3 By the Purchaser in writing, without liability, if such Breach either the Corporation or the Sellers shall (a) fail to perform in any material respect their agreements contained herein required to be performed by them on or prior to the Closing Date; or (b) materially breach any of their representations, warranties or covenants contained herein, which failure or breach is not cured by Buyer or Vanguard, as applicable, within thirty ten (3010) days after the receipt by Buyer or Vanguard, as applicable, as Purchaser has notified the case may be, Sellers of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right its intent to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) 10.1.3;
10.1.4 By either the Sellers or the Purchaser in writing, without liability, if there shall be any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Purchaser, the Sellers or the Corporation, which prohibits or restrains the Purchaser, the Sellers or the Corporation from consummating the transactions contemplated hereby, provided that the Purchaser, the Sellers and the Corporation shall have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same shall not be have been lifted within (thirty) 30 days after entry, by any such court or governmental or regulatory agency;
10.1.5 By either the basis for Buyer to assert either that Selling Parties have committed a Breach Sellers or the Purchaser, in writing, without liability, if for any purpose under this Agreementreason the Closing has not occurred by June 15, or that any condition to Closing would fail or has failed 2010 other than as a result of such actionthe material breach of this Agreement by the party attempting to terminate the Agreement.
Appears in 1 contract
Methods of Termination. This Agreement may be terminated and in any of the transactions contemplated hereby may be abandoned at any time before the Closingfollowing ways:
(a) by either Purchaser or Seller, in writing five calendar days in advance of such termination, if the mutual written agreement of the Selling Parties and BuyerClosing has not occurred by December 31, 2003;
(b) by written notice from Selling Parties at any time on or prior to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt Effective Time by the Selling Parties or Buyer, as the case may be, mutual consent in writing of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DatePurchaser and Seller;
(c) by written notice from Selling Parties to Purchaser in writing if the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing conditions set forth in Section 7.3(bArticle VII (with the exception of delivery of items required to be delivered at Closing) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is shall not cured have been met by Buyer Seller or Vanguard, as applicable, waived in writing by Purchaser within thirty (30) 30 calendar days following the date of all approvals by regulatory agencies and after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Dateall statutory waiting periods have expired;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, Seller in writing if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing conditions set forth in Section 7.2(e); provided, if such Breach is curable through the exercise Article VIII of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is shall not cured have been met by Purchaser or waived in writing by Seller within thirty (30) 30 calendar days following the date of all approvals by regulatory agencies and after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Dateall statutory waiting periods have expired;
(e) by written notice from Buyer any time prior to the Selling Parties specifying with particularity the applicable BreachEffective Time, by Purchaser or Seller in writing if the Selling Parties other shall have committed a Breachbeen in breach of any representation and warranty in any material respect (as if such representation and warranty had been made on and as of the date hereof and on the date of the notice of breach referred to below), or in breach of any covenant, undertaking or obligation contained herein, and such Breach would result in breach has not been cured by the failure earlier of 30 calendar days after the condition giving of notice to Closing set forth in Section 7.2(d)the breaching party of such breach or the Effective Time; provided, if however, that there shall be no cure period in connection with any breach of Section 6.3, so long as such Breach is curable through the exercise breach by Purchaser was not caused by any action or inaction of commercially reasonable effortsSeller, then the Buyer and Seller may only terminate this Agreement immediately if such Breach is regulatory applications are not cured by the Selling Parties filed within thirty (30) 30 calendar days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;as provided in that Section; or
(hf) by written notice from the Selling Parties to Buyer, if (i) Buyer elects Seller in writing at any time after any applicable regulatory authority has denied approval of any application of Purchaser for there to be an Equity Portion approval of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actiontransactions contemplated herein.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Virginia Financial Group Inc)
Methods of Termination. This Purchase Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time before between the Purchase Agreement Signing and the Closing:
(a) by the mutual written agreement consent of the Selling Parties Sellers and Buyer;
(b) by written Buyer, if (i) Sellers fail to comply in any material respect with any of their covenants or agreements contained herein and has failed to cure such failure to comply within fifteen (15) calendar days after it receives notice from Selling Parties to the Buyer specifying with particularity the applicable Breachof such breach, if Buyer has committed a Breach, and such Breach would result in the failure of or (ii) any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price representations and warranties of Sellers are breached or inaccurate in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Datematerial way;
(c) by written Sellers, if (i) Buyer fails to comply in any material respect with any of its covenants or agreements contained herein and has failed to cure such failure to comply within fifteen (15) calendar days after it receives notice from Selling Parties to the Buyer specifying with particularity the applicable BreachSellers of such breach, if Buyer has committed a Breach, and such Breach would result in the failure of or (ii) any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right representations and warranties of Buyer is breached or Vanguard, as applicable, to cure a Breach will terminate on the Outside Dateinaccurate in any material way;
(d) by written notice from Sellers or Buyer if a court of competent jurisdiction or governmental, regulatory or administrative agency or commission has issued a non-appealable order, decree or ruling or taken any other action (which order, decree or ruling the parties hereto have used their best efforts to lift), which permanently restrains, enjoins or otherwise prohibits the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate transactions contemplated by this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside DatePurchase Agreement;
(e) by written notice from either Buyer to the Selling Parties specifying with particularity the applicable Breach, or Sellers if the Selling Parties transactions contemplated hereby have committed a Breachnot been consummated by November 30, and 2007 or such Breach would result other date as mutually agreed to in writing by both parties; provided that, neither Buyer nor Seller shall be entitled to terminate this Purchase Agreement pursuant to this Section 9.1(e) if such party’s willful breach (or the failure willful breach by such party’s Affiliated Parties) of this Purchase Agreement has prevented the consummation of the condition to Closing set forth in Section 7.2(d)transactions contemplated by this Purchase Agreement; provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;or
(f) by written notice from either Sellers in the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed event of receipt of a Superior Proposal upon compliance with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted notification provisions to Buyer as set forth in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date 6.9 of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such action.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Infotech Usa Inc)
Methods of Termination. This Agreement may be terminated and in any of the transactions contemplated hereby may be abandoned at any time before the Closingfollowing ways:
(a) by Seller, in writing in advance of such termination, if the mutual written agreement of the Selling Parties and BuyerClosing has not occurred by April 1, 2008;
(b) by written notice from Selling Parties at any time on or prior to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt Effective Time by the Selling Parties or Buyer, as the case may be, mutual consent in writing of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DatePurchaser and Seller;
(c) by written notice from Selling Parties to Purchaser in writing if the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing conditions set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion Article VII of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is shall not cured have been met by Buyer Seller or Vanguard, as applicable, waived in writing by Purchaser within thirty (30) 30 calendar days following the date of all approvals by regulatory agencies and after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Dateall statutory waiting periods have expired;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, Seller in writing if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing conditions set forth in Section 7.2(e); provided, if such Breach is curable through the exercise Article VIII of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is shall not cured have been met by Purchaser or waived in writing by Seller within thirty (30) 30 calendar days following the date of all approvals by regulatory agencies and after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Dateall statutory waiting periods have expired;
(e) by written notice from Buyer any time prior to the Selling Parties specifying with particularity the applicable BreachEffective Time, by Purchaser or Seller in writing if the Selling Parties other shall have committed been in breach of any representation and warranty in any material respect (as if such representation and warranty had been made on and as of the date hereof and on the date of the notice of breach referred to below) and the entity filing a Breachclaim is not in breach, or in breach of any covenant, undertaking or obligation contained herein, and such Breach would result in breach has not been cured by the failure earlier of 30 calendar days after the condition giving of notice to Closing set forth in Section 7.2(d)the breaching party of such breach or the Effective Time; provided, if however, that there shall be no cure period in connection with any breach of Section 6.3, so long as such Breach is curable through the exercise breach by Purchaser was not caused by any action or inaction of commercially reasonable effortsSeller, then the Buyer and Seller may only terminate this Agreement immediately if such Breach is regulatory applications are not cured by the Selling Parties filed within thirty (30) 30 calendar days after the receipt by the Selling Parties or Buyer, date of this Agreement as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, in that any right of the Selling Parties to cure a Breach will terminate on the Outside DateSection;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if Seller in writing at any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction time after any applicable regulatory authority has denied approval of such condition was not the result any application of Purchaser for approval of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);transactions contemplated herein; or
(g) by written notice from Buyer Purchaser in writing if Seller does not fulfill the conditions and obligations set forth in Section 7.7, provided that Purchaser shall only be permitted to the Selling Parties, if so terminate this Agreement within 5 business days after the date of this Agreement a Material Adverse Effect 30 day period provided for in Section 7.7 has occurred expired, and is continuing;
(h) by written notice from the Selling Parties such termination shall be Purchaser's sole remedy for failure to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with fulfill such Section 1.3 7.7 conditions and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actionobligations.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Chemung Financial Corp)
Methods of Termination. This Agreement The transactions contemplated herein may be terminated and the transactions contemplated hereby may be abandoned at any time before the Closingterminated:
(a) by the By mutual written agreement consent of the Selling Parties Buyer and Buyer;Seller; or
(b) By the Buyer on the Closing Date or thereafter provided the Buyer is not in default hereunder, if any of the conditions provided for in Article VII of this Agreement (other than conditions precedent which are contemplated to be satisfied at the Closing, unless such conditions precedent are not likely to be satisfied at such time) shall not have been met or waived in writing by written notice from Selling Parties Buyer on or prior to the Buyer specifying with particularity Closing Date or prior to the applicable Breachdate such right to terminate is exercised; or
(c) By the Seller on the Closing Date or thereafter provided the Seller is not in default hereunder, if any of the conditions provided for in Article VI of this Agreement (other than conditions precedent which are contemplated to be satisfied at the Closing, unless such conditions are not likely to be satisfied at such time) shall not have been met or waived in writing by Seller prior to the Closing Date or prior to the date such right to terminate is executed; or
(d) By the Buyer if not in default hereunder or the Seller if not in default hereunder if the Closing of this transaction has committed not occurred by August 15, 2001.
(e) In the event that this Agreement is terminated as a Breachresult of a Seller default hereunder, and such Breach would result in or the failure of any condition to Closing either of the conditions precedent set forth in Section 7.3(c) or6.17 or 6.18 to be satisfied, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(c) by written notice from Selling Parties Seller's sole responsibility and liability to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty hereunder (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant subject to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, 10.2) shall be to cure a Breach will terminate on the Outside Date;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is not cured within thirty (30) days after the receipt by reimburse the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, for its verifiable costs and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed expenses associated with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actionPost Signing Environmental Site Assessment.
Appears in 1 contract
Methods of Termination. This Agreement may be terminated and in any of the transactions contemplated hereby may be abandoned at any time before the Closingfollowing ways:
(a) by either Buyer or Seller, in writing five calendar days in advance of such termination, if the mutual written agreement Closing has not occurred by June 30, 2003, and such failure to close the transactions contemplated by this Agreement has not been caused by a breach of this Agreement by the Selling Parties and Buyerterminating party;
(b) by written notice from Selling Parties at any time on or prior to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt Effective Time by the Selling Parties or mutual consent in writing of Seller and Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(c) by written notice from Selling Parties to Seller in writing if the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing conditions set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion Article IX of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is shall not cured have been met by Buyer or Vanguard, as applicable, within thirty (30) days after waived in writing by Seller prior to the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Closing Date;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, in writing if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing conditions set forth in Section 7.2(e); provided, if such Breach is curable through the exercise Article VIII of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is shall not cured within thirty (30) days after have been met by Seller or waived in writing by Buyer prior to the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Closing Date;
(e) by written notice from Buyer any time prior to the Selling Parties specifying with particularity the applicable BreachEffective Time, by Buyer or Seller in writing if the Selling Parties other shall have committed a Breachbeen in breach of any representation and warranty in any material respect (as if such representation and warranty had been made on and as of the date hereof and on the date of the notice of breach referred to below) or in breach of any covenant, undertaking or obligation contained herein, and such Breach would result breach has not been cured by the earlier of 30 calendar days after the giving of notice to the breaching party of such breach or the Effective Time; PROVIDED, HOWEVER, that there shall be no cure period in the failure connection with any breach of the condition to Closing set forth in Section 7.2(d); provided7.3 hereof, if so long as such Breach is curable through the exercise breach by Buyer was not caused by any action or inaction of commercially reasonable effortsSeller, then the Buyer and Seller may only terminate this Agreement immediately if such Breach is regulatory applications are not cured by the Selling Parties filed within thirty (30) 21 calendar days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;as provided in that section; or
(hf) by written notice from the Selling Parties to Buyer, if (i) Seller in writing at any time after any applicable regulatory authority has denied approval of any application of Buyer elects for there to be an Equity Portion approval of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actiontransactions contemplated herein.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Rurban Financial Corp)
Methods of Termination. This Agreement The transactions contemplated herein may be terminated and the transactions contemplated hereby may be and/or abandoned at any time before but not later than the Closing:
(a) by the By mutual written agreement consent of the Selling Parties Purchaser and Buyerthe Sellers;
(b) by written notice from Selling Parties By the Purchaser or New Valley if any competent regulatory authority shall have issued an order making illegal or otherwise restricting, preventing, prohibiting or refusing to approve the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breachtransactions contemplated hereby, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Dateorder shall have become final and non-appealable;
(c) By the Purchaser or New Valley if the Closing has not occurred by written notice from Selling September 30, 2001 for any reason other than breach by the Party seeking to terminate unless the Parties agree to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result an extension in the failure of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Datewriting;
(d) by written notice from Buyer By New Valley if the Board of Directors of the Purchaser (or any committee thereof) shall have (i) failed to recommend or withdrawn or modified in a manner adverse to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, Sellers its approval or recommendation of this Agreement and such Breach would result in the failure any of the condition transactions contemplated hereby, (ii) recommended or taken no position with respect to Closing set forth in Section 7.2(e); provideda proposal for a Purchaser Alternative Transaction or (iii) following the public announcement of a proposal for a Purchaser Alternative Transaction, if such Breach is curable through the exercise failed to reconfirm its recommendation of commercially reasonable efforts, then Buyer may only terminate this Agreement if and any of the transactions contemplated hereby within five business days following a written request for such Breach is not cured within thirty (30) days after the receipt reconfirmation by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such BreachNew Valley; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;or
(e) by written notice from Buyer to By the Selling Parties specifying with particularity the applicable Breach, Purchaser if the Selling Parties have committed a Breach, and such Breach would result in the failure Board of Directors of the condition to Closing set forth Purchaser shall have determined in Section 7.2(d); providedgood faith, if such Breach is curable through based upon the exercise advice of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, furtheroutside legal counsel, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right failure to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer is reasonably likely to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 result in the aggregate;
(iii) the acquisition Board of any material properties or assets in excess Directors breaching its fiduciary duties to stockholders under applicable law by reason of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such actionan unsolicited, bona fide written proposal for a Superior Purchaser Transaction, but only if the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any Purchaser and its subsidiaries and other Representatives of the foregoing actions Purchaser shall have complied with their obligations under Section 5.16; provided, however, that are consented to by Buyer the Purchaser may not terminate this Agreement pursuant to this Section 8.1(iclause (e) unless (x) 48 hours shall not be the basis for Buyer have elapsed after delivery to assert either that Selling Parties have committed New Valley of a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result written notice of such actiondetermination by the Board of Directors and (y) the Purchaser shall have paid to New Valley any amounts owed by it pursuant to Section 8.2(b).
Appears in 1 contract
Sources: Stock Purchase Agreement (Gbi Capital Management Corp)
Methods of Termination. This Agreement may be terminated terminated: ----------------------
(a) by mutual written agreement of the Sellers and the transactions contemplated hereby Buyer prior to the Closing Date;
(b) by Sellers or the Buyer if a Competing Transaction is approved by the Bankruptcy Court, whether or not in accordance with the Bid Procedures as the same may be abandoned modified by order of the Bankruptcy Court;
(c) at any time before the Closing:
(a) , by the mutual written agreement either of the Selling Parties and Buyer;
(b) by written notice from Selling Parties to Buyer if any of the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing conditions set forth in Section 7.3(c) orArticle IX shall have become incapable of fulfillment or cure and shall not have been waived by the Buyer, if provided that the Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, then in breach of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(c) by written notice from Selling Parties to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DateAgreement;
(d) at any time before the Closing, by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, Sellers if the Selling Parties have committed a Breach, and such Breach would result in the failure any of the condition to Closing conditions set forth in Section 7.2(e); provided, if such Breach is curable through the exercise Article X shall have become incapable of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is fulfillment or cure and shall not cured within thirty (30) days after the receipt have been waived by the Buyer or Sellers, provided that the Selling Parties, as the case may be, Sellers are not then in breach of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Datethis Agreement;
(e) at any time after February 1, 2001, by written notice from Buyer the Sellers if the Closing fails to occur on or before such date, unless such failure is due to the Selling Parties specifying with particularity the applicable Breachaction or inaction of, if the Selling Parties have committed a Breach, and such Breach would result in the failure or breach of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by by, the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside DateSellers;
(f) at any time after February 1, 2001, by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied fails to occur on or before February 1such date, 2011 (unless such failure is due to the “Outside Date”)action or inaction of, or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction breach of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f)by, the Buyer;
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;[Intentionally Omitted]
(h) at any time after December 31, 2000, by written notice from Sellers or by the Selling Parties to Buyer, Buyer if (i) Buyer elects for there to be an Equity Portion of by such date the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect 363/365 Order has occurred and is continuing; andnot been entered;
(i) by written notice from the Sellers if the Closing has not occurred as the result of the failure of the Buyer to consummate the Selling Parties upon transactions contemplated by this Agreement within ten (10) days after the occurrence of any satisfaction of the following actions by ENP GP or the Partnership Entitiesconditions set forth in Article VIII, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities provided that Sellers are ready to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securitiesclose;
(iij) by the creationBuyer if the Closing has not occurred as the result of the Sellers failure to consummate the transactions contemplated by this Agreement within ten (10) days after the satisfaction of the conditions set forth in Article IX, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 provided that the Buyer is ready to close; or
(k) by Buyer in the aggregate;
(iii) the acquisition event of any a material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, breach of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures covenants contained in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such action8.5.
Appears in 1 contract
Methods of Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time before the Closing:
(a) by the mutual written agreement of the Selling Parties and BuyerParties;
(b) by written notice from Selling Parties VNR and VNG to the Buyer Nami Parties specifying with particularity the applicable Breach, if Buyer has Nami Parties have committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e6.3(c); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties VNR and VNG may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicablethe Nami Parties, within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, a party of a Notification provided pursuant to Section 6.6 9.4 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicablethe Nami Parties, to cure a Breach will terminate on the Outside Date;
(c) by written notice from Selling the Nami Parties to the Buyer VNR and/or VNG specifying with particularity the applicable Breach, if Buyer has VNR and/or VNG have committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d6.3(b); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling the Nami Parties may only terminate this Agreement if such Breach is not cured by Buyer or VanguardVNR and/or VNC, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 9.4 specifying with particularity such Breach; provided, further, that any right of Buyer or VanguardVNR and/or VNG, as applicable, to cure a Breach will terminate on the Outside Date;
(d) by written notice from Buyer to either the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Nami Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer VNR and/or VNG to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f7.1(d);
(ge) by written notice from Buyer the Nami Parties to the Selling PartiesVNR and/or VNG, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(hf) by written notice from the Selling Nami Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties VNR and/or VNG upon the occurrence of any of the following actions by ENP GP or the Partnership Operating Entities, unless Buyer consents the Nami Parties consent in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties VNG and/or VNR of the intent of ENP GP or the Partnership Operating Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 50,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 50,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 $ 50,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer2011 budget;
(viv) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,00050,000; and
(viivi) the sale of any assets with proceeds to ENP GP or the Partnership Operating Entities in excess of $5,000,000 50,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer the Nami entities pursuant to this Section 8.1(i7.1(f) shall not be the basis for Buyer the Nami Entities to assert either that Selling Parties VNG and/or VNR have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such action.
Appears in 1 contract
Sources: Unit Exchange Agreement (Vanguard Natural Resources, LLC)
Methods of Termination. This Subject to the other provisions of this Article 8, and in addition to the provisions set forth in Section 5.22, this Agreement may be terminated and the transactions contemplated hereby herein may be abandoned at any time before notwithstanding approval thereof by the Stockholders, at any time prior to the Closing:
(a) by the By mutual written agreement consent of Parent, Merger Subsidiary and the Selling Parties and Buyer;Company; or
(b) by written notice from Selling Parties to By Parent and Merger Subsidiary on or after the Buyer specifying with particularity the applicable BreachTermination Date, if Buyer has committed a Breach, and any of the conditions provided for in Article 6 of this Agreement have not been reasonably satisfied or waived in writing by Parent prior to such Breach would result in date (unless the failure results primarily from a breach by Parent or Merger Subsidiary of any condition to Closing set forth representation, warranty or covenant contained in Section 7.3(cthis Agreement); or
(c) orBy the Company on or after the Termination Date, if Buyer elects to provide an Equity Portion any of the Purchase Price conditions provided for in accordance with Section 1.3Article 7 of this Agreement have not been reasonably satisfied or waived in writing by the Company prior to such date (unless the failure results primarily from a breach by the Company of any representation, Section 7.3(ewarranty or covenant contained in this Agreement); providedor
(d) By Parent and Merger Subsidiary if there has been a material breach of any representation, if such Breach is curable through the exercise of commercially reasonable effortswarranty, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer covenant or Vanguard, as applicable, within agreement which remains uncured for thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate written notice thereof on the Outside Date;
(c) by written notice from Selling Parties to part of the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing Company set forth in Section 7.3(bthis Agreement; or
(e) orBy the Company if there has been a material breach of any representation, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3warranty, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer covenant or Vanguard, as applicable, within agreement which remains uncured for thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate written notice thereof on the Outside Date;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure part of the condition to Closing Parent or Merger Subsidiary set forth in Section 7.2(e)this Agreement; provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;or
(f) by written notice from By either the Selling Parties or Buyer to the other Party, party if any condition to court of competent jurisdiction or any other governmental body has issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the terminating Party’s obligation to proceed with the Closing is not satisfied on transactions contemplated hereby and such order, decree, ruling or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, other action has become final and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);appealable; or
(g) by By Parent upon written notice from Buyer to the Selling PartiesCompany if the Board of Directors of the Company withdraws, if after modifies or changes its recommendation regarding the date approval of this Agreement or the Merger in a Material Adverse Effect has occurred and is continuing;manner adverse to Parent; or
(h) by By Company upon written notice from to Parent if, prior to obtaining the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion approval of the Purchase Price in accordance with Section 1.3 and (ii) after stockholders of Parent, the date Board of Directors of Parent withdraws, modifies or changes its recommendation regarding the approval of this Agreement, Agreement or the Merger in a Vanguard Material Adverse Effect has occurred and is continuingmanner adverse to the Company; andor
(i) by written notice from Buyer to By Company, if the Selling Parties upon the occurrence of any average of the following actions closing sale price (such closing price as reported by ENP GP The NASDAQ Stock Market at the end of regular trading) of one share of Parent Common Stock on the NASDAQ National Market System (or such other national securities trading system as the Partnership Entities, unless Buyer consents Parent Common Stock is approved and listed for trading) in writing any period of sixty (which consent shall not be unreasonably withheld60) within twenty Business Days consecutive trading days during the period from the receipt of written notice from date hereof through the Selling Parties of the intent of ENP GP Closing Date is equal to or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securitiesless than $1.50 per share;
(iij) By Parent, if the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, average of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions closing sale price (such closing price as reported by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated The NASDAQ Stock Market at the weighted average interest rate end of regular trading) of one share of Parent Common Stock on the Partnership’s indebtednessNASDAQ National Market System (or such other national securities trading system as the Parent Common Stock is approved and listed for trading) in any period of which exceeds sixty (60) consecutive trading days during the period from the date hereof through the Closing Date is equal to or less than $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such action1.50 per share.
Appears in 1 contract
Methods of Termination. This Agreement may be terminated and in any ----------------------- of the transactions contemplated hereby may be abandoned at any time before the Closingfollowing ways:
(a) at any time on or prior to the Effective Time by the mutual written agreement consent in writing of the Selling Parties Purchaser and BuyerSeller;
(b) by written notice from Selling Parties to the Buyer specifying with particularity the applicable BreachPurchaser, in writing, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing conditions set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion ARTICLE VII of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is shall not cured have been met by Buyer Seller or Vanguard, as applicable, waived in writing by Purchaser within thirty thirty-one (3031) calendar days following the date of all approvals by regulatory agencies and after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Dateall statutory waiting periods have expired;
(c) by written notice from Selling Parties Seller, in writing, if the conditions set forth in ARTICLE VIII of this Agreement shall not have been met by Purchaser or waived in writing by Seller within thirty-one (31) calendar days following the date of all approvals by regulatory agencies and after all statutory waiting periods have expired;
(d) any time prior to the Buyer specifying with particularity the applicable BreachEffective Time, by Purchaser or Seller, in writing, if Buyer has committed a Breachthe other party shall have been in breach of any representation and warranty in any material respect (as if such representation and warranty had been made on and as of the date hereof and on the date of the notice of breach referred to below), or in breach of any covenant, undertaking or obligation contained herein, and such Breach would result breach has not been cured by the earlier of thirty (30) calendar days after the giving of notice to the breaching party of such breach or the date specified in the failure of any condition to Closing set forth in Section 7.3(b(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d)and (c) above; provided, if however, that there -------- ------- shall be no cure period in connection with any breach of SECTION 6.3 hereof, so long as such Breach is curable through the exercise breach by Purchaser was not caused by any action or inaction of commercially reasonable effortsSeller, then Selling Parties and Seller may only terminate this Agreement immediately if such Breach is regulatory applications are not cured by Buyer or Vanguard, as applicable, filed within thirty (30) calendar days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;as provided in that Section; or
(he) by written notice from the Selling Parties to Buyer, if (i) Buyer elects Seller or Purchaser in writing at any time after any applicable regulatory authority has denied approval by a final non-appealable order of any application of Purchaser for there to be an Equity Portion approval of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actiontransactions contemplated herein.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (First South Bancorp Inc /Va/)
Methods of Termination. This Subject to the other provisions of this Article 8, this Agreement may be terminated and the transactions contemplated hereby herein may be abandoned at any time before notwithstanding approval thereof by the Stockholders, at any time prior to the Closing:
(a) by the By mutual written agreement consent of Parent, Merger Subsidiary and the Selling Parties and Buyer;Company; or
(b) by written notice from Selling Parties to By Parent and Merger Subsidiary on or after the Buyer specifying with particularity the applicable BreachTermination Date, if Buyer has committed a Breach, and any of the conditions provided for in Article 6 of this Agreement have not been reasonably satisfied or waived in writing by Parent prior to such Breach would result in date (unless the failure to satisfy such condition results primarily from a breach by Parent or Merger Subsidiary of any condition to Closing set forth representation, warranty or covenant contained in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(ethis Agreement); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;or
(c) by written notice from Selling Parties to By the Buyer specifying with particularity Company on or after the applicable BreachTermination Date, if Buyer has committed a Breach, and any of the conditions provided for in Article 7 of this Agreement have not been reasonably satisfied or waived in writing by the Company prior to such Breach would result in date (unless the failure to satisfy such condition results primarily from a breach by the Company of any condition to Closing set forth representation, warranty or covenant contained in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(dthis Agreement); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;or
(d) by By Parent and Merger Subsidiary if there has been a material breach of any representation, warranty, covenant or agreement which remains uncured for 30 days after written notice from Buyer thereof, or which breach, by its nature, cannot be cured prior to the Selling Parties specifying with particularity Closing, on the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure part of the condition to Closing Company set forth in Section 7.2(e)this Agreement; provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;or
(e) by By the Company if there has been a material breach of any representation, warranty, covenant or agreement which remains uncured for 30 days after written notice from Buyer thereof, or which breach, by its nature, cannot be cured prior to the Selling Parties specifying with particularity Closing, on the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure part of the condition to Closing Parent or Merger Subsidiary set forth in Section 7.2(d)this Agreement; provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;or
(f) by written notice from either the Selling Parties or Buyer to the other Party, By any Party if any condition to court of competent jurisdiction or any other Governmental Authority has issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the terminating Party’s obligation to proceed with the Closing is not satisfied on transactions contemplated hereby and such order, decree, ruling or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, other action has become final and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);appealable; or
(g) by By Parent upon written notice from Buyer to the Selling PartiesCompany if the Board of Directors of the Company withdraws, if after modifies or changes its recommendation regarding the date approval of this Agreement or the Merger in a Material Adverse Effect has occurred and is continuing;manner adverse to Parent; or
(h) by By the Company upon written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the Parent following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making Company of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this a Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such action.5.9
Appears in 1 contract
Sources: Merger Agreement (Lectec Corp /Mn/)
Methods of Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time before the Closing:
(a) by a. By the mutual written agreement consent of the Selling Parties Homeland Shareholders, Homeland and BuyerBenaco;
b. By Benaco, upon a material breach of any representation, warranty, covenant or agreement on the part of Homeland, the Homeland Shareholders or the Homeland Creditors set forth in this Agreement, or if any representation or warranty of Homeland, the Homeland Shareholders or the Homeland Creditors shall become untrue, in either case such that any of the conditions set forth in Article VI hereof would not be satisfied (ba "Homeland Breach"), and such breach shall, if capable of cure, has not been cured within ten (10) business days after receipt by the party in breach of a notice from the non-breaching party setting forth in detail the nature of such breach;
c. By Homeland, the Homeland Shareholders, or the Homeland Creditors, upon a material breach of any representation, warranty, covenant or agreement on the part of Benaco set forth in this Agreement, or, if any representation or warranty of Benaco shall become untrue, in either case such that any of the conditions set forth in Article V hereof would not be satisfied (a "Benaco Breach"), and such breach shall, if capable of cure, not have been cured within ten (10) business days after receipt by the party in breach of a written notice from Selling Parties to the Buyer specifying with particularity non-breaching party setting forth in detail the applicable Breachnature of such breach;
d. By any party, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is shall not cured by Buyer or Vanguard, as applicable, within thirty have consummated before ninety (3090) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breachdate hereof; provided, furtherhowever, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(c) this Agreement may be extended by written notice from Selling Parties to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer either Homeland or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable BreachBenaco, if the Selling Parties Closing shall not have committed been consummated as a Breach, and such Breach would result in the failure of the condition Benaco or Homeland having failed to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate receive all required regulatory approvals or consents with respect to this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer transaction or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breachentering of an order as described in this Agreement; and further provided, provided however, that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i7.1(d) shall not be the basis for Buyer available to assert either that Selling Parties have committed a Breach for any purpose party whose failure to fulfill any obligations under this AgreementAgreement has been the cause of, or that resulted in, the failure of the Closing to occur on or before this date.
e. By any condition party if a court of competent jurisdiction or governmental, regulatory or administrative agency or commission shall have issued an order, decree or ruling or taken any other action (which order, decree or ruling the parties hereto shall use its best efforts to Closing would fail lift), which permanently restrains, enjoins or has failed as a result of such actionotherwise prohibits the transactions contemplated by this Agreement.
Appears in 1 contract
Methods of Termination. This Agreement may be terminated and in any of the transactions contemplated hereby may be abandoned at any time before the Closingfollowing ways:
(a) by either Purchaser or Seller, in writing five calendar days in advance of such termination, if the mutual written agreement of the Selling Parties and BuyerClosing has not occurred by June 30, 2008;
(b) by written notice from Selling Parties at any time on or prior to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt Effective Time by the Selling Parties or Buyer, as the case may be, mutual consent in writing of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DatePurchaser and Seller;
(c) by written notice from Selling Parties to Purchaser in writing if the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing conditions set forth in Section 7.3(bArticle VII (with the exception of delivery of items required to be delivered at Closing) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is shall not cured have been met by Buyer Seller or Vanguard, as applicable, waived in writing by Purchaser within thirty (30) 30 calendar days following the date of all approvals by regulatory agencies and after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Dateall statutory waiting periods have expired;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, Seller in writing if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing conditions set forth in Section 7.2(e); provided, if such Breach is curable through the exercise Article VIII of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is shall not cured have been met by Purchaser or waived in writing by Seller within thirty (30) 30 calendar days following the date of all approvals by regulatory agencies and after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Dateall statutory waiting periods have expired;
(e) by written notice from Buyer any time prior to the Selling Parties specifying with particularity the applicable BreachEffective Time, by Purchaser or Seller in writing if the Selling Parties other shall have committed a Breachbeen in breach of any representation and warranty in any material respect (as if such representation and warranty had been made on and as of the date hereof and on the date of the notice of breach referred to below), or in breach of any covenant, undertaking or obligation contained herein, and such Breach would result in breach has not been cured by the failure earlier of 30 calendar days after the condition giving of notice to Closing set forth in Section 7.2(d)the breaching party of such breach or the Effective Time; provided, if however, that there shall be no cure period in connection with any breach of Section 6.3, so long as such Breach is curable through the exercise breach by Purchaser was not caused by any action or inaction of commercially reasonable effortsSeller, then the Buyer and Seller may only terminate this Agreement immediately if such Breach is regulatory applications are not cured by the Selling Parties filed within thirty (30) 30 calendar days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;as provided in that Section; or
(hf) by written notice from the Selling Parties to Buyer, if (i) Buyer elects Seller or Purchaser in writing at any time after any applicable regulatory authority has denied approval of any application of Purchaser for there to be an Equity Portion approval of the Purchase Price in accordance with Section 1.3 transactions contemplated herein, and (ii) after all applicable appeals have been exhausted or the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; andtime for filing such appeals shall have expired.
(ig) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership EntitiesPurchaser in writing, unless Buyer consents as expressly provided for in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securitiesSection 1.10;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such action.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Eastern Virginia Bankshares Inc)
Methods of Termination. This Agreement may be terminated and in any of the transactions contemplated hereby may be abandoned at any time before the Closingfollowing ways:
(a) by Seller or Purchaser if the mutual written agreement Closing has not occurred on or before the 200th day following the date hereof, provided that this right to terminate shall not be available to any party whose failure to perform an obligation in breach of such party's obligations under this Agreement has been the cause of, or resulted in, the failure of the Selling Parties and BuyerEffective Time to occur by such time;
(b) by written notice from Selling Parties at any time on or prior to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt Effective Time by the Selling Parties or Buyer, as the case may be, mutual consent in writing of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DatePurchaser and Seller;
(c) by written notice from Selling Parties to Purchaser in writing if the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing conditions set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion Article 8 of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if shall not have been met by Seller or waived in writing by Purchaser prior to the date fixed for Closing, plus any reasonable adjournment thereof, provided that Purchaser's failure to perform an obligation in breach of its obligations under this Agreement was not the cause of, or resulted in, Seller's failure to fulfill any such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Datecondition;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, Seller in writing if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing conditions set forth in Section 7.2(e); provided, if such Breach is curable through the exercise Article 9 of commercially reasonable efforts, then Buyer may only terminate this Agreement if shall not have been met by Purchaser or waived in writing by Seller prior to the date fixed for Closing, plus any reasonable adjournment thereof, provided that Seller's failure to perform an obligation in breach of its obligations under this Agreement was not the cause of, or resulted in, Purchaser's failure to fulfill any such Breach is not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Datecondition;
(e) by written notice from Buyer any time prior to the Selling Parties specifying with particularity the applicable BreachEffective Time, by Seller or Purchaser in writing if the Selling Parties other shall have committed a Breachbeen in breach of any representation and warranty in any material respect (as if such representation and warranty had been made on and as of the date hereof and on the date of the notice of breach referred to below), or in breach in any material respect of any covenant, undertaking or obligation contained herein, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is breach has not been cured by the Selling Parties within thirty earlier of fifteen (3015) days after the receipt by giving of notice to the Selling Parties breaching party of such breach or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such BreachEffective Time; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;or
(f) by written notice from either the Selling Parties Seller or Buyer to the other Party, Purchaser in writing at any time after any applicable regulatory authority has denied approval of any application for a Regulatory Approval (it being understood that a request for additional information shall not constitute a denial of approval) or by Purchaser if any condition to the terminating Party’s obligation to proceed condition, commitment or requirement is imposed in connection with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided any Regulatory Approval that no Party whose Breach has resulted would adversely affect in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if material way (i) Buyer elects for there to be an Equity Portion Purchaser's operation of all the Purchase Price in accordance with Section 1.3 and Branch Offices or (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of Purchaser or any of the following actions by ENP GP its Affiliates with respect to their present businesses or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actionactivities.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Sun Bancorp Inc /Nj/)
Methods of Termination. This Agreement may be terminated and prior to Closing in any of the transactions contemplated hereby may be abandoned at any time before the Closingfollowing ways:
(a) by either Purchaser or Seller, in writing five calendar days in advance of such termination, if the mutual written agreement of the Selling Parties and BuyerClosing has not occurred by September 24, 2004;
(b) by written notice from Selling Parties to the Buyer specifying with particularity the applicable Breacheither Purchaser or Seller, in writing five calendar days in advance of such termination, if Buyer all Regulatory Approvals have been received and all statutory waiting periods have expired and the Closing has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, occurred within thirty ninety (3090) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DateRegulatory Approvals have been received and statutory waiting periods have expired;
(c) by written notice from Selling Parties at any time on or prior to the Buyer specifying with particularity Effective Time by the applicable Breach, if Buyer has committed a Breach, mutual consent in writing of Purchaser and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DateSeller;
(d) by written notice from Buyer to Purchaser in writing if (i) it is June 25, 2004 or later and (ii) the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing conditions set forth in Section 7.2(e); provided, if such Breach is curable through the exercise Article VII of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is were not cured met by Seller or waived in writing by Purchaser within thirty (30) 30 calendar days following the date of all Regulatory Approvals and after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Dateall statutory waiting periods have expired;
(e) by written notice from Buyer to Seller in writing if (i) it is June 25, 2004 or later and (ii) the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing conditions set forth in Section 7.2(d); provided, if such Breach is curable through the exercise Article VIII of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is were not cured met by Purchaser or waived in writing by Seller within 30 calendar days following the Selling Parties within thirty (30) days date of all Regulatory Approvals and after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Dateall statutory waiting periods have expired;
(f) by written notice from either the Selling Parties or Buyer any time prior to the Effective Time, by Purchaser or Seller in writing if the other Party, shall have been in breach of any representation and warranty in any material respect (as if any condition such representation and warranty had been made on and as of the date hereof and on the date of the notice of breach referred to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”below), or if satisfied prior theretoin breach of any covenant, does not remain satisfied on the Closing Dateundertaking or obligation contained herein, and non-satisfaction such breach has not been cured by the earlier of 30 calendar days after the giving of notice to the breaching party of such condition breach or the Effective Time; provided, however, that there shall be no cure period in connection with any breach of Section 6.3 hereof, so long as such breach by Purchaser was not the result caused in whole or in part by any action or inaction of the other Party’s BreachSeller, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to and Seller may terminate this Agreement under this Section 8.1(f);
immediately if regulatory applications are not filed within fifteen (g15) by written notice from Buyer to the Selling Parties, if calendar days after the date of this Agreement a Material Adverse Effect has occurred and is continuing;as provided in that Section; or
(hg) by written notice from the Selling Parties to Buyer, if (i) Buyer elects Seller in writing at any time after any applicable regulatory authority has denied approval of any application of Purchaser for there to be an Equity Portion approval of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actiontransactions contemplated herein.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (City National Bancshares Corp)
Methods of Termination. This Agreement may be terminated and in any of the transactions contemplated hereby may be abandoned at any time before the Closingfollowing ways:
(a) by By either Purchaser or Seller, in writing, if the mutual written agreement transaction has not been consummated on or before December 31, 2005, time being of the Selling Parties essence, unless the failure of the Closing to occur by such date shall be due to the failure of the party seeking to terminate this Agreement to perform or observe in any material respect the covenants and Buyeragreements of such party as set forth herein;
(b) by written notice from Selling Parties At any time prior to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt Date by the Selling Parties or Buyer, as the case may be, mutual consent in writing of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DatePurchaser and Seller;
(c) by written notice from Selling Parties By Purchaser in writing if and when, at any time prior to the Buyer specifying with particularity the applicable BreachClosing Date, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing of Purchaser’s obligations set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if becomes (in the opinion of both Seller and Purchaser) incapable of being fulfilled and such Breach is condition has not cured been waived by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DatePurchaser;
(d) by written notice from Buyer By Seller in writing if and when, at any time prior to the Selling Parties specifying with particularity the applicable BreachClosing Date, if the Selling Parties have committed a Breach, and such Breach would result in the failure any condition of the condition to Closing Seller’s obligations set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if becomes (in the opinion of both Purchaser and Seller) incapable of being fulfilled and such Breach is condition has not cured within thirty (30) days after the receipt been waived by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside DateSeller;
(e) by written notice from Buyer At any time prior to the Selling Parties specifying with particularity the applicable Breach, Closing Date by Purchaser or Seller in writing if the Selling Parties have committed other party continues to be in breach of any material representation and warranty as if such representation and warranty had been made on and as of the date of the notice of breach thereof unless a Breachdifferent time is specified in any such representation and warranty (excluding any representations and warranties made in Section 6.9 hereof) or covenant made by the breaching party in this Agreement in any material respect, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is breach has not been cured by the Selling Parties within thirty twenty (3020) days after the receipt by giving of written notice to the Selling Parties or Buyer, as the case may be, breaching party of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Datebreach;
(f) by written notice from By Seller in writing at any time after any applicable regulatory authority has either (i) denied approval of any application of Purchaser or Seller seeking approval of the Selling Parties transaction contemplated hereby, in whole or Buyer in part, or (ii) failed to act on any application in a timely manner such that Seller and Purchaser both reasonably believe that Purchaser will not be able to consummate the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied transaction on or before February 1December 31, 2011 (the “Outside Date”)2005; provided however, or if satisfied prior thereto, does that Seller shall not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f)if such denial or request or recommendation for withdrawal shall be due to the failure of Seller to perform or observe in any material respect the covenants and agreements of such party as set forth herein;
(g) by written notice from Buyer By Seller in the event that there is pending litigation against Seller with respect to the Selling Parties, if after the date of transactions contemplated by this Agreement a Material Adverse Effect has occurred and which as determined by the mutual agreement of both parties acting reasonably is continuing;likely to result in materially adverse consequences to Seller if Seller does not terminate the Agreement; or
(h) by written notice from By Purchaser in the Selling Parties to Buyer, if (i) Buyer elects for event there to be an Equity Portion of the Purchase Price in accordance is pending litigation against Purchaser with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer respect to the Selling Parties upon the occurrence of any of the following actions transactions contemplated by ENP GP or the Partnership Entities, unless Buyer consents in writing (this Agreement which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions as determined by the Partnership (with such amounts determined using mutual agreement of both parties acting reasonably is likely to result in materially adverse consequences to Purchaser if Purchaser does not terminate the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such action.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (PSB Holdings, Inc.)
Methods of Termination. This Agreement may be terminated and in any of the transactions contemplated hereby may following ways:
(1) by either Purchaser or Seller in writing five calendar days in advance of such termination, if the Closing has not occurred by May 31, 2004; provided that a party shall not be abandoned permitted to terminate this Agreement on such date if the failure of the Closing to occur prior to such date arises out of or results from the actions, inactions, or omissions of the terminating party;
(2) at any time before on or prior to the Closing:
(a) Effective Time by the mutual written agreement consent in writing of the Selling Parties Seller and BuyerPurchaser;
(b3) by written notice from Selling Parties to Seller in writing if the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing conditions set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion Article IX of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is shall not cured have been met by Buyer Purchaser or Vanguard, as applicable, within thirty (30) days after waived in writing by Seller prior to the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Closing Date;
(c4) by written notice from Selling Parties to Purchaser in writing if the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing conditions set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion Article VIII of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is shall not cured have been met by Buyer Seller or Vanguard, as applicable, within thirty (30) days after waived in writing by Purchaser prior to the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Closing Date;
(d5) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, Purchaser in writing if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right it exercises its option to terminate this Agreement under this Section 8.1(fpursuant to paragraphs 2.10(c);, 2.10(d) or 2.11(b) hereof.
(g6) by written notice from Buyer any time prior to the Selling PartiesEffective Time, by Purchaser or Seller in writing if the other shall have been in breach of any representation and warranty in any material respect (as if such representation and warranty had been made on and as of the date hereof and on the date of the notice of breach referred to below), or in breach of any covenant, undertaking, or obligation contained herein, and such breach has not been cured by the earlier of 30 calendar days after the giving of notice to the breaching party of such breach or the Effective Time; provided, however, that there shall be no cure period in connection with any breach of Section 7.3 hereof, so long as such breach by Purchaser was not caused by any action or inaction of Seller, and Seller may terminate this Agreement immediately if regulatory applications are not filed within 30 calendar days after the date of this Agreement a Material Adverse Effect has occurred and is continuing;as provided in that section; or
(h7) by written notice from the Selling Parties to Buyer, if (i) Buyer elects Seller or Purchaser in writing at any time after any applicable regulatory authority has denied approval of any application of Purchaser for there to be an Equity Portion approval of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actiontransactions contemplated herein.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (CNB Financial Services Inc)
Methods of Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time before prior to the Closing:
(a) by the By mutual written agreement of the Selling Parties and BuyerParties;
(b) by written notice from Selling Parties to the Buyer specifying with particularity the applicable BreachBy Seller, if Buyer the Closing has committed not occurred by September 3, 2013, provided that a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate default by Seller under this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after responsible for the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DateClosing not having occurred;
(c) by written notice from Selling Parties to the Buyer specifying with particularity the applicable BreachBy Purchaser, if Buyer the Closing has committed not occurred by September 3, 2013, provided that a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate default by Purchaser or Guarantor under this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after responsible for the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DateClosing not having occurred;
(d) By Seller in writing if Purchaser or Guarantor shall (i) fail to perform any of their respective covenants or agreements contained herein required to be performed by written notice from Buyer them prior to the Selling Parties specifying with particularity the applicable Breachdate of such termination, or (ii) breach any of their respective representations or warranties contained herein or if the Selling Parties have committed any such representations or warranties become inaccurate, in each case so as to cause a Breach, and such Breach would result in the failure of the condition to the Closing set forth in Section 7.2(e); providedto be incapable of satisfaction, if such Breach is curable through the exercise of commercially reasonable effortswhich failure, then Buyer may only terminate this Agreement if such Breach breach or inaccuracy is not cured within thirty fifteen (3015) days after the receipt by the Buyer or the Selling Parties, as the case may be, Seller has notified Purchaser in writing of a Notification provided its intent to terminate this Agreement pursuant to this Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date11.01(d);
(e) By Purchaser in writing if Seller shall (i) fail to perform any of its covenants or agreements contained herein required to be performed by written notice from Buyer it prior to the Selling Parties specifying with particularity the applicable Breachdate of such termination, or (ii) breach any of its representations or warranties contained herein or if the Selling Parties have committed any such representations or warranties become inaccurate, in each case so as to cause a Breach, and such Breach would result in the failure of the condition to the Closing set forth to be incapable of satisfaction, which failure, breach or inaccuracy is not cured within fifteen (15) days after Purchaser has notified Seller in Section 7.2(d); provided, if such Breach is curable through the exercise writing of commercially reasonable efforts, then the Buyer may only its intent to terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to this Section 6.6 specifying with particularity such Breach11.01(e); provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;or
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents By Seller in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i6.01(b) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actionSection 6.01(c).
Appears in 1 contract
Methods of Termination. This Agreement may be terminated and the transactions contemplated hereby Contemplated Transactions may be abandoned at any time before the Closingas follows:
(a) by the mutual written agreement consent of the Selling Parties Seller and Buyer;
(b) by written notice from Selling Parties to the Buyer specifying with particularity the applicable Breacheither Seller or Buyer, if Buyer the Closing has committed a Breachnot occurred on or before December 31, and such Breach would result in 2021 (the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e“Termination Date”); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, furtherhowever, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(c) by written notice from Selling Parties to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f)9.1(b) shall not be available to Seller if Seller, or to Buyer if Buyer, has failed to fulfill, in all material respects, any of its obligation under this Agreement; and provided further, that the Termination Date shall be automatically extended for an additional three (3) month period if the Closing has not occurred by the end of the Termination Date due to the failure of a condition set forth in Section 6.4 or Section 7.4 being met with respect to obtaining the consent, authorization or approval from any Governmental Authority or any third Person;
(gc) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to shall have been a breach of any representation, warranty, covenant or agreement on the part of Seller contained in this Agreement such that the conditions set forth in Section 6.2 or 6.3 would not be an Equity Portion satisfied, and such breach is not capable of being cured or, if capable of being cured, is not cured by Seller by the earlier of the Purchase Price in accordance with Section 1.3 Termination Date and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and that is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the 30 days following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties Buyer of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having breach; provided that Buyer shall not have the right to vote on terminate this Agreement pursuant to this Section 9.1(c) if Buyer is then in material breach of any matters on which holders of capital stock its representations, warranties, covenants or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securitiesagreements contained in this Agreement;
(iid) the creationby Seller, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition if there shall have been a breach of any material properties representation, warranty, covenant or assets agreement on the part of Buyer contained in excess this Agreement such that the conditions set forth in Section 7.2 or 7.3 would not be satisfied, and such breach is not capable of $5,000,000 in being cured or, if capable of being cured, is not cured by Buyer by the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, earlier of the equity interests Termination Date and the date that is 30 days following receipt of written notice from Seller of such breach; provided that Seller shall not have the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(vright to terminate this Agreement pursuant to this Section 9.1(d) the making if Seller is then in material breach of any capital expenditures of its representations, warranties, covenants or agreements contained in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000this Agreement; and
(viie) by either Seller or Buyer, if any Governmental Authority shall have issued an Order or taken any other action enjoining or otherwise prohibiting the sale of any assets with proceeds to ENP GP Contemplated Transactions and such Order or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business other action shall have become final and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actionnonappealable.
Appears in 1 contract
Methods of Termination. This Agreement The transactions contemplated herein may be terminated and the transactions contemplated hereby may be and/or abandoned at any time before but not later than the Closing:
(a) by the mutual written agreement consent of the Selling Parties Purchaser, e-Channels and Buyerthe Vendor;
(b) (i) by written notice from Selling Parties to the Buyer specifying with particularity Purchaser if e-Channels or the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of Vendor amends or supplements any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price e-Channels or Vendor schedule hereto in accordance with Section 1.38.4 hereof and such amendment or supplement reflects a material adverse change in the condition (financial or other), Section 7.3(e); provided, if such Breach is curable through operations or prospects of e-Channels or the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguarde-Channels Business, as applicablea whole or in part, within thirty (30) days after the receipt date hereof, or (ii) by Vendor if the Selling Parties Purchaser amends or Buyer, as supplements any the case may be, Purchaser Schedule hereto in accordance with Section 8.4 hereof and such amendment or supplement reflects a material adverse change in the condition (financial or other) or operations of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;Purchaser.
(c) by written notice from Selling Parties to either the Buyer specifying with particularity Purchaser or the applicable BreachVendor, if Buyer the Closing or the closing for the acquisition of e-Channels by e-Channels BVI has committed a Breachnot occurred by May 31, and 2006 (or such Breach would result in the failure of any condition other date as may be extended from time to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion time by written agreement of the Purchase Price in accordance with Section 1.3, Section 7.3(dPurchaser and Vendor); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, furtherhowever, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i11.1(c) shall not be the basis for Buyer available to assert either any Party that Selling Parties have committed a Breach for is then in breach of any purpose under of its covenants, representations or warranties in this Agreement;
(d) by the Vendor, (i) if the Purchaser shall have breached any of its covenants herein in any respect or (ii) if the representations and warranties of the Purchaser contained in this Agreement shall not be true and correct in all material respects, at the time made, or (iii) if such representations and warranties shall not be true and correct at and as of the Closing Date as though such representations and warranties were made again at and as of the Closing Date, except to the extent that such representations are made herein as of a specific date prior to the Closing Date, and in any condition such event, if such breach is subject to cure, the Purchaser has not cured such breach within 10 Business Days of the Vendor’s notice of an intent to terminate;
(e) by the Purchaser, (i) if e-Channels or the Vendor shall have breached any of the covenants herein in any respect or (ii) if the representations and warranties of e-Channels or the Vendor contained in this Agreement shall not be true and correct in all material respects, at the time made, or (iii) if such representations and warranties shall not be true and correct at and as of the Closing would fail Date as though such representations and warranties were made again at and as of the Closing Date, except to the extent that such representations are made herein as of a specific date prior to the Closing Date, and in any such event, if such breach is subject to cure, e-Channels or has failed as a result the Vendor have not cured such breach within 10 Business Days of such actionthe Purchaser’s notice of an intent to terminate.
Appears in 1 contract
Sources: Sale and Purchase Agreement (China Unistone Acquisition CORP)
Methods of Termination. This Agreement may be terminated and the transactions contemplated hereby Transactions may be abandoned at any time before prior to the Closing:
(a) by the mutual written agreement consent of the Selling Parties and BuyerParties;
(b) by any of the Parties at any time after the date that is twelve (12) months following the date of execution of this Agreement (the “Termination Date”), if the Closing shall not have occurred and the Party seeking termination is not in material violation or breach of its respective representations, warranties, covenants or obligations contained in this Agreement;
(c) by the Buyer by a written notice from Selling Parties to the Buyer specifying with particularity the applicable BreachSeller, if Buyer has committed upon a Breach, and such Breach would result in the failure breach of any condition to Closing representation, warranty, covenant or agreement on the part of the Seller, FilterCo or FilterSub set forth in Section 7.3(c) orthis Agreement, or if Buyer elects to provide an Equity Portion any representation or warranty of the Purchase Price Seller, FilterCo or FilterSub shall have become untrue or inaccurate, in accordance with Section 1.3each case, Section 7.3(e)such that if not cured on or prior to the Closing Date, the conditions set forth in Article VII would not be satisfied; provided, that if such Breach inaccuracy or breach in the Seller’s, FilterCo’s, or FilterSub’s representations and warranties or the breach by the Seller, FilterCo, or FilterSub is curable curable, through the exercise of commercially reasonable best efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after receipt of written notice from the receipt by Buyer of such breach hereunder, then the Selling Parties or BuyerBuyer may not terminate this Agreement under this Section 10.1(c) prior to the end of such thirty (30)-day period, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, furtherthat the Seller, that any right of Buyer FilterCo, or VanguardFilterSub, as applicable, continues to exercise best efforts to cure such inaccuracy or breach through such thirty (30)-day period (it being understood that the Buyer may not terminate this Agreement pursuant to this Section 10.1(c) if the Buyer shall have materially breached this Agreement or if such inaccuracy or breach by the Seller, FilterCo, or FilterSub, as applicable, is cured prior to the end of such thirty (30)-day period); or
(d) by the Seller by a Breach will terminate written notice to the Buyer, upon a breach of any representation, warranty, covenant or agreement on the Outside Date;
(c) by written notice from Selling Parties to part of the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(b) orthis Agreement, or if Buyer elects to provide an Equity Portion any representation or warranty of the Purchase Price Buyer shall have become untrue or inaccurate, in accordance with Section 1.3each case, Section 7.3(d)such that if not cured on or prior to the Closing Date, the conditions set forth in Article VIII would not be satisfied; provided, that if such Breach inaccuracy or breach in the Buyer’s representations and warranties or breach by the Buyer is curable curable, through the exercise of commercially reasonable best efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and Seller of such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable effortsbreach hereunder, then the Buyer Seller may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g10.1(d) by written notice from Buyer prior to the Selling Partiesend of such thirty (30)-day period, if after provided that the date of Buyer continues to exercise best efforts to cure such inaccuracy or breach through such thirty (30)-day period (it being understood that the Seller may not terminate this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i10.1(d) shall not be if the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this AgreementSeller, FilterCo, or that any condition FilterSub shall have materially breached this Agreement or if such inaccuracy or breach by the Buyer is cured prior to Closing would fail or has failed as a result the end of such actionthirty (30)-day period).
Appears in 1 contract
Sources: Stock Purchase Agreement (Skyworks Solutions, Inc.)
Methods of Termination. This Agreement may be terminated and the transactions herein contemplated hereby may be abandoned at any time before the Closingtime:
(a) by the mutual written agreement consent of the Selling Parties Purchasers and Buyerthe Sellers;
(b) by written notice from Selling Parties the Purchasers if the Bankruptcy Court does not enter an order approving the No-Shop Provisions and the Break-Up Fee on or prior to the Buyer specifying with particularity the applicable BreachFebruary 11, if Buyer has committed 2002 or such order as entered does not become a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DateFinal Order;
(c) by written notice from Selling Parties to the Buyer specifying with particularity Purchaser or the applicable Breach, Sellers if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in (i) an interim order approving post-petition financing under Section 7.3(b) or, if Buyer elects to provide an Equity Portion 364 of the Purchase Price Bankruptcy Code (the "INTERIM DIP ORDER") shall not have been entered by the Bankruptcy Court on or prior to February 11, 2002 or (ii) the Interim DIP Order as entered does not remain in accordance with Section 1.3full force and effect or shall have been stayed, Section 7.3(d); providedreversed, if such Breach is curable through the exercise of commercially reasonable effortsamended, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that modified in any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Daterespect;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, Purchasers if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is (i) not cured within thirty later than twenty (3020) days after entry of the receipt Interim DIP Order, an order in form and substance satisfactory to the Purchasers in their sole and absolute discretion, authorizing additional borrowings under the Sellers' post-petition financing under Section 364 of the Bankruptcy Code shall not have been entered by the Buyer Bankruptcy Court (the "FINAL DIP ORDER") or the Selling Parties, as the case may be, of (ii) such Final DIP Order does not become a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside DateFinal Order;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, Purchasers if the Selling Parties Sellers have committed breached the terms of or a Breach, and Default or Event of Default (as such Breach would result terms are defined in the failure of DIP Financing) exists under the condition to Closing set forth in Section 7.2(d); providedDIP Financing, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach which breach or default is not cured by or the Selling Parties DIP Financing is not fully repaid within thirty five (305) days after from the receipt by date on which the Selling Parties Purchasers have provided the Sellers and the Bank Group with notice of such breach or Buyer, as the case may be, Default or Event of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside DateDefault;
(f) by written notice from either the Selling Parties or Buyer Purchasers if (i) at any time the representations and warranties of the Sellers in Article II (with the exception of the Sellers' representations set forth in Section 2.21 hereto, and with the exception of the Sellers' representations with respect to the other PartyMOCVD operations and solar cell processing, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”"fabrication," operations), shall not be true and correct in all material respects, except for representations and warranties which are qualified by materiality which shall be true and correct (for the purpose of materiality in this Section 11.1(f), a representation or if satisfied prior theretowarranty will be deemed not to be true in all material respects if, does not remain satisfied on as a result of any change or condition arising between the date of signing this Agreement and the Closing Date, the Business (other than the MOCVD operations and non-satisfaction of such condition was solar cell processing, "fabrication," operations) cannot be operated in the result normal course and/or there is an interruption in the operations of the Business (other Party’s Breachthan the MOCVD operations and solar cell processing, provided that no Party whose Breach has resulted "fabrication," operations) which is reasonably expected to last in a condition to such Party’s obligation to proceed with excess of fifteen (15) days)), or (ii) if as of the Closing Date any of the conditions specified in Article VIII hereof have not being been satisfied will have the right to terminate this Agreement or if any Sellers are otherwise in default under this Section 8.1(f)Agreement;
(g) by written notice from Buyer to the Selling Parties, Sellers if after as of the date Closing Date any of the conditions specified in Article IX hereof have not been satisfied or if any of the Purchasers is otherwise in default under this Agreement a Material Adverse Effect has occurred and is continuingAgreement;
(h) by written notice from the Selling Parties to Buyer, Purchasers if (i) Buyer elects for there to be the Sellers enter into an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; andAlternative Transaction;
(i) by written notice from Buyer to the Selling Parties upon the occurrence of Purchasers if any of the following actions by ENP GP Bank Group or Westar breaches the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties terms and conditions of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securitiesForbearance Agreements;
(iij) by the creation, incurrence, guarantee Purchasers or assumption any new indebtedness for borrowed money in excess of $10,000,000 the Sellers if a motion to dismiss the Chapter 11 Case or a motion to convert the Chapter 11 Case or appoint a trustee or examiner has been granted in the aggregateChapter 11 Case;
(iiik) by the acquisition of any material properties Purchasers or assets in excess of $5,000,000 in the aggregateSellers if the Asset Sale Order is not entered by the Bankruptcy Court on or prior to March 5, 2002 or such order does not become a Final Order;
(ivl) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP Purchasers or the Partnership Entities in excess of $5,000,000 in Sellers if the aggregatetransactions contemplated pursuant to this Agreement are not consummated on or before March 15, except in the ordinary course of business and consistent 2002; PROVIDED THAT if any party has breached or defaulted with past practice. During the pendency of any respect to its obligations under this Agreement on or before such actiondate, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer party may not terminate this Agreement pursuant to this Section 8.1(i10.1(b), and each other party to this Agreement may at its option enforce its rights against such breaching or defaulting party and seek any remedies against such party, in either case as provided hereunder and by applicable Regulation; or
(m) by either the Purchasers or the Sellers if there shall not be in effect a stay pending appeal or other order restraining, enjoining or otherwise prohibiting the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result consummation of such actionthe transactions contemplated herein.
Appears in 1 contract
Methods of Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time before the Closing:
(a) by a. By the mutual written consent of BPMX Stockholders, BPMX and TPND;
b. By TPND, upon a material breach of any representation, warranty, covenant or agreement on the part of BPMX or the BPMX Stockholders set forth in this Agreement, or if any representation or warranty of BPMX or the BPMX Stockholders shall become untrue, in either case such that any of the Selling Parties conditions set forth in Article VI hereof would not be satisfied, and Buyersuch breach shall, if capable of cure, has not been cured within ten (10) days after receipt by the party in breach of a notice from the non-breaching party setting forth in detail the nature of such breach;
c. By BPMX or any BPMX Stockholder, upon a material breach of any representation, warranty, covenant or agreement on the part of TPND set forth in this Agreement, or, if any representation or warranty of TPND shall become untrue, in either case such that any of the conditions set forth in Article V hereof would not be satisfied, and such breach shall, if capable of cure, not have been cured within ten (b10) days after receipt by the party in breach of a written notice from Selling Parties to the Buyer specifying with particularity non-breaching party setting forth in detail the applicable Breachnature of such breach;
d. By any party, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is shall not cured by Buyer or Vanguard, as applicable, within thirty have consummated before ninety (3090) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breachdate hereof; provided, furtherhowever, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(c) this Agreement may be extended by written notice from Selling Parties to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer either BPMX or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable BreachTPND, if the Selling Parties Closing shall not have committed been consummated as a Breach, and such Breach would result in the failure of the condition TPND or BPMX having failed to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate receive all required regulatory approvals or consents with respect to this Agreement if such Breach is not cured within thirty (30) days after the receipt by the Buyer transaction or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breachentering of an order as described in this Agreement; and further provided, provided however, that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;
(h) by written notice from the Selling Parties to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i7.1(d) shall not be the basis for Buyer available to assert either that Selling Parties have committed a Breach for any purpose party whose failure to fulfill any obligations under this AgreementAgreement has been the cause of, or that resulted in, the failure of the Closing to occur on or before this date.
e. By any condition party if a court of competent jurisdiction or governmental, regulatory or administrative agency or commission shall have issued an order, decree or ruling or taken any other action (which order, decree or ruling the parties hereto shall use its best efforts to Closing would fail lift), which permanently restrains, enjoins or has failed as a result of such actionotherwise prohibits the transactions contemplated by this Agreement.
Appears in 1 contract
Methods of Termination. This Prior to the Closing, ---------------------- his Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time before the Closingtime:
(a) by the mutual written agreement of the Selling Parties Seller and Buyerthe Acquiror;
(b) by written notice from Selling Parties either the Seller or the Acquiror if the Closing shall not have occurred by June 1, 2007; provided, however, that the right to terminate the Buyer specifying with particularity the applicable Breach, Agreement pursuant to this Section 12.1(b) shall not be available to a party if Buyer has committed a Breach, and --------------- such Breach would result party's failure to perform in all material respects any of their material obligations under this Agreement or any Related Agreement results in the failure of any condition the Closing to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if occur by such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Datetime;
(c) by written notice from Selling Parties to either the Buyer specifying with particularity Seller or the applicable BreachAcquiror, if Buyer has committed there shall be in effect any Law that prohibits the Closing or if the Closing would violate any non-appealable Order, issued by a Breachcompetent Governmental Entity, and such Breach would result in that permanently restrains, enjoins or prohibits the failure of any condition to Closing set forth in Section 7.3(b) or, if Buyer elects to provide an Equity Portion consummation of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate transactions contemplated by this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DateAgreement;
(d) by written notice from Buyer to either the Selling Parties specifying with particularity Seller or the applicable BreachAcquiror, if the Selling Parties have committed a Breachother party has breached any material representation, warranty, covenant or agreement hereunder, such breach has not been waived by the non-breaching party, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is breach has not been cured within a period of thirty (30) days after following the receipt by terminating party's written notice of such breach and the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties breaching party is diligently proceeding to cure a Breach will such breach, unless such breach is not capable of cure, in which event the non-breaching party may terminate on the Outside Dateimmediately;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable BreachAcquiror, if a Seller Material Adverse Effect shall have occurred since the Selling Parties have committed a Breach, and such Breach would result in the failure date of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside DateAgreement;
(f) by the Seller, if an Acquiror Material Adverse Effect shall have occurred since the date of this Agreement;
(g) by the Seller, if (i) it is not in material breach of the terms of Section 8.10(a) or (c), (ii) the --------------- --- board of directors of the Seller has authorized the Seller to enter into a definitive agreement for a transaction that constitutes a Superior Bid, (iii) the Seller has notified the Acquiror in writing that the Seller has received a Superior Bid and intends to enter into a definitive agreement with respect to such Superior Bid pursuant to Section 8.10(b), (iv) five (5) Business Days have passed --------------- since the Acquiror has received such written notice from either and (v) the Selling Parties or Buyer Other Bid remains a Superior Bid after any amendments to this Agreement; provided, however, that the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is Seller shall not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under pursuant to this Section 8.1(f);
(g12.1(g) by written notice from Buyer prior to the Selling Parties, if after expiration of the date of this Agreement a Material Adverse Effect has occurred and is continuing;No-Shop --------------- Period.
(h) by written notice from the Selling Parties to BuyerAcquiror, if (i) Buyer elects for there prior to be an Equity Portion the Closing, the Seller has breached the terms and conditions of the Purchase Price Acrux License in accordance with Section 1.3 and (ii) after a manner giving rise to a right of termination under the Acrux License by Fempharm Pty Ltd. and/or Acrux DDS Pty Ltd., whether or not such breach is based on facts or circumstances in existence as of the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuinghereof; andor
(i) by Acquiror, on or before the earlier of (i) 11:59 p.m. (Eastern Daylight Saving Time) fourteen (14) calendar days following the date hereof or (ii) 11:59 p.m. (Eastern Daylight Saving Time) on the fifth (5th) Business Day following the date of Acquiror's inspection of the facilities of ***, located *** (the "Facility Inspection ------------------- Deadline"), if Acquiror determines in good faith that *** is -------- unable to manufacture quantities of the pump component for Evamist meeting the specifications therefor (as set forth in the Evamist NDA) to support the launch of Evamist or provide continuity of commercial supply as contemplated by the parties as of the date hereof (the "Adverse Determination"); --------------------- provided, however, if Acquiror makes the Adverse Determination it shall promptly notify Seller thereof, then upon written notice from Buyer request of either party to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
other party (i) the issuance, delivery, sale, pledge parties shall promptly meet (whether in person or disposition teleconference) and discuss in good faith possible resolutions to the Adverse Determination over a period of any seven (A7) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
calendar days and (ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition Acquiror's ability to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer terminate this Agreement pursuant to this Section 8.1(i12.1(i) shall not be extended by a period of seven (7) calendar days following the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actionFacility Inspection Deadline.
Appears in 1 contract
Sources: Asset Purchase Agreement (Kv Pharmaceutical Co /De/)
Methods of Termination. This Agreement may be terminated and in any of the transactions contemplated hereby may be abandoned at any time before the Closingfollowing ways:
(a) by either Purchaser or Seller, in writing five calendar days in advance of such termination, if the mutual written agreement of the Selling Parties and BuyerClosing has not occurred by December 31, 2004;
(b) by written notice from Selling Parties at any time on or prior to the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing set forth in Section 7.3(c) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(e); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt Effective Time by the Selling Parties or Buyer, as the case may be, mutual consent in writing of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside DatePurchaser and Seller;
(c) by written notice from Selling Parties to Purchaser in writing if the Buyer specifying with particularity the applicable Breach, if Buyer has committed a Breach, and such Breach would result in the failure of any condition to Closing conditions set forth in Section 7.3(bArticle VII (with the exception of delivery of items required to be delivered at Closing) or, if Buyer elects to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then Selling Parties may only terminate this Agreement if such Breach is shall not cured have been met by Buyer Seller or Vanguard, as applicable, waived in writing by Purchaser within thirty (30) 30 calendar days following the date of all approvals by regulatory agencies and after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Dateall statutory waiting periods have expired;
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, Seller in writing if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing conditions set forth in Section 7.2(e); provided, if such Breach is curable through the exercise Article VIII of commercially reasonable efforts, then Buyer may only terminate this Agreement if such Breach is shall not cured have been met by Purchaser or waived in writing by Seller within thirty (30) 30 calendar days following the date of all approvals by regulatory agencies and after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Dateall statutory waiting periods have expired;
(e) by written notice from Buyer any time prior to the Selling Parties specifying with particularity the applicable BreachEffective Time, by Purchaser or Seller in writing if the Selling Parties other shall have committed a Breachbeen in breach of any representation and warranty in any material respect (as if such representation and warranty had been made on and as of the date hereof and on the date of the notice of breach referred to below), or in breach of any covenant, undertaking or obligation contained herein, and such Breach would result in breach has not been cured by the failure earlier of 30 calendar days after the condition giving of notice to Closing set forth in Section 7.2(d)the breaching party of such breach or the Effective Time; provided, if however, that there shall be no cure period in connection with any breach of Section 6.3, so long as such Breach is curable through the exercise breach by Purchaser was not caused by any action or inaction of commercially reasonable effortsSeller, then the Buyer and Seller may only terminate this Agreement immediately if such Breach is regulatory applications are not cured by the Selling Parties filed within thirty (30) 30 calendar days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under this Section 8.1(f);
(g) by written notice from Buyer to the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;as provided in that Section; or
(hf) by written notice from the Selling Parties to Buyer, if (i) Buyer elects Seller in writing at any time after any applicable regulatory authority has denied approval of any application of Purchaser for there to be an Equity Portion approval of the Purchase Price in accordance with Section 1.3 and (ii) after the date of this Agreement, a Vanguard Material Adverse Effect has occurred and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actiontransactions contemplated herein.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Gateway Financial Holdings Inc)
Methods of Termination. This Agreement may be terminated and the ---------------------- transactions contemplated hereby may be abandoned at any time before prior to the Closing:
(a) by the mutual written agreement consent of Parent and Target (with the unanimous approval of the Selling Parties and Buyer;Board of Directors); or
(b) by written notice from Selling Parties to the Buyer specifying with particularity the applicable BreachParent, if Buyer has committed a Breach, and such Breach would result in all of the failure of any condition to Closing conditions set forth in Section 7.3(c6.1 hereof shall not have been satisfied or waived on or prior to the later of (i) orthe first business day that occurs 45 days following the SEC No Comments Date, plus, if Buyer elects applicable, the number of days, if any, then remaining in the cure periods pursuant to provide an Equity Portion Sections 7.1(d) and 7.1(e) hereof (the "Initial Termination Date") or (ii) if Parent shall have deposited the Second Optional Deposit into the Escrow Account not later than 5:00 p.m. (Chicago time) on the Initial Termination Date, the first business day that occurs 30 days following the Initial Termination Date (the later of such dates, the Purchase Price in accordance with Section 1.3, Section 7.3(e"Termination Date"); provided, however, that Parent shall not have the right to terminate this -------- ------- Agreement pursuant to this subsection if such Breach is curable through the exercise of commercially reasonable efforts, then the Selling Parties may only terminate this Agreement if such Breach is conditions have not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by the Selling Parties been satisfied due to Buyer's failure to fulfill or Buyer, as the case may be, 's breach of a Notification provided pursuant to Section 6.6 specifying with particularity such Breachany of its obligations under this Agreement; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;or
(c) by written notice from Selling Parties to Target (with the Buyer specifying with particularity approval of its Board of Directors and the applicable BreachSpecial Committee), if Buyer has committed a Breach, and such Breach would result in all of the failure of any condition to Closing conditions set forth in Section 7.3(b) or, if Buyer elects 6.2 hereof shall not have been satisfied or waived on or prior to provide an Equity Portion of the Purchase Price in accordance with Section 1.3, Section 7.3(d)Termination Date; provided, however, that Target shall not have the right to terminate this -------- ------- Agreement pursuant to this subsection if such Breach is curable through the exercise conditions have not been satisfied due to Target's failure to fulfill or Target's breach of commercially reasonable efforts, then Selling Parties may only terminate any of its obligations under this Agreement if such Breach is not cured by Buyer or Vanguard, as applicable, within thirty (30) days after the receipt by Buyer or Vanguard, as applicable, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such BreachAgreement; provided, further, that any right of Buyer or Vanguard, as applicable, to cure a Breach will terminate on the Outside Date;or
(d) by written notice from Buyer to the Selling Parties specifying with particularity the applicable BreachParent, if Target, Target's Board of Directors or the Selling Parties Special Committee shall have committed a Breachbreached any representation, and warranty or covenant set forth in this Agreement, or if any representation or warranty shall have become untrue, in either case, such Breach would result in that the failure of the condition to Closing conditions set forth in Section 7.2(e)6.1(a) or Section 6.1(b) hereof would not be satisfied; providedprovided that, as long as written -------- notice of such breach is given to Target not later than 45 days following the SEC No Comments Date, if such Breach breach is curable by Target through the exercise of commercially its reasonable best efforts and for so long as Target continues to exercise such reasonable best efforts, then Buyer may only terminate this Agreement if such Breach is Parent shall not cured within thirty (30) days after the receipt by the Buyer or the Selling Parties, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of Selling Parties to cure a Breach will terminate on the Outside Date;
(e) by written notice from Buyer to the Selling Parties specifying with particularity the applicable Breach, if the Selling Parties have committed a Breach, and such Breach would result in the failure of the condition to Closing set forth in Section 7.2(d); provided, if such Breach is curable through the exercise of commercially reasonable efforts, then the Buyer may only terminate this Agreement if such Breach is not cured by the Selling Parties within thirty (30) days after the receipt by the Selling Parties or Buyer, as the case may be, of a Notification provided pursuant to Section 6.6 specifying with particularity such Breach; provided, further, that any right of the Selling Parties to cure a Breach will terminate on the Outside Date;
(f) by written notice from either the Selling Parties or Buyer to the other Party, if any condition to the terminating Party’s obligation to proceed with the Closing is not satisfied on or before February 1, 2011 (the “Outside Date”), or if satisfied prior thereto, does not remain satisfied on the Closing Date, and non-satisfaction of such condition was not the result of the other Party’s Breach, provided that no Party whose Breach has resulted in a condition to such Party’s obligation to proceed with Closing not being satisfied will have the right to terminate this Agreement under pursuant to this subsection unless such breach has not been cured within 30 days after the giving of such written notice to Target; or
(e) by Target (with the approval of its Board of Directors and the Special Committee), if Buyer shall have breached any representation, warranty or covenant set forth in this Agreement, or if any representation or warranty shall have become untrue, in either case, such that the conditions set forth in Section 8.1(f);6.2(a) or Section 6.2(b) hereof would not be satisfied; provided that, -------- as long as written notice of such breach is given to Buyer not later than 45 days following the SEC No Comments Date, if such breach is curable by Buyer through the exercise of their reasonable best efforts and for so long as Buyer continues to exercise such reasonable best efforts, Target shall not have the right to terminate this Agreement pursuant to this subsection unless such breach has not been cured within 30 days after the giving of such written notice to Buyer; or
(f) by either Target or Parent if a Stockholders Meeting contemplated by Section 5.2(c) hereof (including any adjournment or postponement thereof) shall have been held and the stockholders of Target shall have failed to approved the Merger in accordance with the Organizational Documents of Target and the DGCL; or
(g) by written Target in connection with entering into a definitive agreement concerning a Superior Proposal, subject to and in accordance with Target's compliance with Section 5.3 hereof (including the notice from Buyer to provisions therein) and Section 7.4 hereof (including the Selling Parties, if after the date of this Agreement a Material Adverse Effect has occurred and is continuing;termination fee provisions therein); or
(h) by written notice from Parent if the Selling Parties Board of Directors of Target or the Special Committee shall have withdrawn or modified in a manner adverse to Buyer, if (i) Buyer elects for there to be an Equity Portion of the Purchase Price in accordance with Section 1.3 and (ii) after the date its approval or recommendation of this Agreement, a Vanguard Material Adverse Effect has occurred Agreement and is continuing; and
(i) by written notice from Buyer to the Selling Parties upon the occurrence of any of the following actions by ENP GP or the Partnership Entities, unless Buyer consents in writing (which consent shall not be unreasonably withheld) within twenty Business Days from the receipt of written notice from the Selling Parties of the intent of ENP GP or the Partnership Entities to effect such event:
(i) the issuance, delivery, sale, pledge or disposition of any (A) equity securities or partnership units of any class, (B) debt securities having the right to vote on any matters on which holders of capital stock or members or partners of the same issuer may vote or (C) securities convertible into or exercisable for, or any rights, warrants, calls or options to acquire, any such securities;
(ii) the creation, incurrence, guarantee or assumption any new indebtedness for borrowed money in excess of $10,000,000 in the aggregate;
(iii) the acquisition of any material properties or assets in excess of $5,000,000 in the aggregate;
(iv) the redemption, retirement, purchase or other acquisition, directly or indirectly, of the equity interests of the Partnership or declaration, setting aside or payment of distributions other than regular quarterly cash distributions by the Partnership (with such amounts determined using the same methodology as recent quarterly distributions);
(v) the making of any capital expenditures in excess of $5,000,000 in addition to the amounts of capital expenditures that were included in the 2010 budget delivered to Buyer;
(vi) the entering into of any leases of real property, other than renewals of existing leases in the ordinary course of business, the net present value (calculated at the weighted average interest rate on the Partnership’s indebtedness) of which exceeds $5,000,000; and
(vii) the sale of any assets with proceeds to ENP GP or the Partnership Entities in excess of $5,000,000 in the aggregate, except in the ordinary course of business and consistent with past practice. During the pendency of any such action, the Selling Parties agree to use commercially reasonable efforts to keep Buyer reasonably informed as to the progress of such action. Any of the foregoing actions that are consented to by Buyer pursuant to this Section 8.1(i) shall not be the basis for Buyer to assert either that Selling Parties have committed a Breach for any purpose under this Agreement, or that any condition to Closing would fail or has failed as a result of such actionMerger.
Appears in 1 contract
Sources: Merger Agreement (Nexthealth Inc)