Actions to Satisfy Closing Conditions Each Party shall take all actions as are within its power and otherwise use its commercially reasonable efforts so as to ensure compliance with the conditions set forth in this Section 6.
Conditions to Seller’s Obligations The obligations of Seller to consummate the transactions provided for hereby are subject, in the discretion of Seller, to the satisfaction, on or prior to the Closing Date, of each of the following conditions, any of which may be waived by Seller:
Conditions to Obligations to Close 7.1 Conditions to Parent’s Obligation. Parent’s obligation to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(b) the Company shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term “material,” or contain terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case The Company shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(c) the Company shall have procured all of the third-party consents specified in Section 3.3 above;
(d) no action, suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before (or that could come before) any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (iii) adversely affect in any material way the right of Parent to own and control the Company, or (iv) adversely affect the right of the Company to own its assets and to operate its business (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(e) the Company shall have delivered to Parent a certificate to the effect that each of the conditions specified above in Section 7.1(a)-(d) is satisfied in all respects;
(f) the Company shall have received all other authorizations, consents, and approvals of governments and governmental agencies referred to in Section 3.3;
(g) Company Members representing at least 80% of the Class B Historical Percentage Interests (as defined in the Company Operating Agreement) shall have entered into Agent Reseller Agreements with the Surviving Company;
(h) all actions to be taken by the Company in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby shall be satisfactory in form and substance to Parent;
(i) the Company shall have obtained and delivered to Parent a written consent for the assignment of each of the Leases, and, if requested by Parent’s lender, a waiver of landlord liens, collateral assignment of lease or leasehold mortgage from the landlord or other party whose consent thereto is required under such Lease (the “Lease Consents”), in form and substance satisfactory to Parent and Parent’s lender;
(j) the Company shall deliver to Parent a non-foreign affidavit dated as of the Closing Date, sworn under penalty of perjury and in form and substance required under the Treasury Regulations issued pursuant to Code §1445 stating that the Company is not a “Foreign Person” as defined in Code §1445 (the “FIRPTA Affidavit”);
(k) the Company shall have delivered to Parent copies of the certificate of organization of the Company on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of the Company;
(l) the Company shall have delivered to Parent copies of the certificate of good standing of the Company issued on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of the Company and of each jurisdiction in which the Company is qualified to do business;
(m) the Company shall have delivered to Parent a certificate of the secretary of the Company, dated the Closing Date, in form and substance reasonably satisfactory to Parent, as to: (i) no amendments to the certificate of organization (or formation) of the Company since the date specified in clause (xvii) above; (ii) the operating agreement (or other governing documents) of the Company; (iii) the resolutions of the voting members or the Company board of directors or other authorizing body (or a duly authorized committee thereof) of the Company, authorizing the execution, delivery, and performance of this Agreement and the transactions contemplated hereby; and (iv) incumbency and signatures of the officers of the Company executing this Agreement or any other agreement contemplated by this Agreement;
(n) Parent may waive any condition specified in this Section 7.1 if it executes a writing so stating at or prior to the Closing;
(o) Parent shall have received from counsel to the Company and the Company members, an opinion, dated the Closing Date, in a form reasonably acceptable to Parent;
(p) Parent shall have received a waiver of NPC’s right of first refusal or written communication from NPC stating its intention to pass on the right of first refusal with respect to the transaction set forth in this Agreement;
(q) Parent shall have received approval for the transactions contemplated by this Agreement from holders of Parent’s convertible notes, or such convertible notes are paid in full in connection with the Closing;
(r) Within ten (10) days of the date of this Agreement, the Company’s Class A Members shall have approved this Agreement and the transactions contemplated hereby by the requisite vote.
Conditions to Seller’s Obligation Seller’s obligation to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) The average of the closing prices of a share of Buyer Common Stock on the NASDAQ Capital Market for the ten trading days immediately preceding the date that is two business days prior to the Closing Date (without regard to any after-market trading), is not less than $4.50;
(ii) The Registration Statement shall have become effective under the Securities Act;
(iii) The shares of Buyer Common Stock that will be issued to Seller shall have been approved for listing on the NASDAQ Capital Market, subject to official notice of issuance;
(iv) The representations and warranties set forth in §3(b) above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term “material,” or contains terms such as “Material Adverse Effect” or “Material Adverse Change,” in which case such representations and warranties (as so written, including the term “material” or “Material”) shall be true and correct in all respects at and as of the Closing Date;
(v) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as “material” and “Material Adverse Effect,” in which case Buyer shall have performed and complied with all of such covenants (as so written, including the term “material” or “Material”) in all respects through the Closing;
(vi) There shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement;
(vii) Buyer shall have delivered to Seller a certificate to the effect that each of the conditions specified above in §§7(b)(iv) through 7(b)(vi) is satisfied in all respects;
(viii) Seller shall have received from counsel to Buyer an opinion in form and substance as set forth in Exhibit D attached hereto, addressed to Seller, and dated as of the Closing Date; and
(ix) All actions to be taken by Buyer in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Seller. Seller may waive any condition specified in this §7(b) if it executes a writing so stating at or prior to the Closing.
Conditions to Obligation of Sellers The obligation of Sellers to consummate the transactions to be performed by them in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties of Buyer herein contained shall have been true and correct in all material respects when made and, in addition, shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date, except as affected by transactions contemplated hereby;
(ii) Buyer shall have in all material respects performed all obligations and agreements and complied in all material respects with all their covenants and conditions contained in this Agreement to be performed and complied with by them on or prior to the Closing Date;
(iii) no action or proceeding before any court or governmental agency shall have been instituted or threatened which would enjoin, restrain or prohibit (or seeks substantial damages as a result of or in connection with) the transactions contemplated by this Agreement and which would in the reasonable judgment of Sellers make it inadvisable to consummate such transactions, and no court order shall have been entered in any action or proceeding instituted by any other Person which enjoins, restrains or prohibits the consummation of the transactions contemplated by this Agreement;
(iv) Buyer shall have executed and delivered the Buyer Notes;
(v) Sellers shall have received from counsel to Buyer an opinion in form and substance as set forth in Exhibit C attached hereto, addressed to Sellers, and dated as of the Closing Date;
(vi) Sellers shall have received from Buyer a certificate of the president and secretary of Buyer, dated as of the Closing Date, certifying that the closing conditions set forth in Sections 7(b)(i), (ii), (iv), (v) and (vii) are satisfied; and
(vii) all other documents required to be delivered by Buyer under this Agreement at or prior to the Closing Date shall be delivered or shall be tendered by the Closing Date. Sellers may waive any condition specified in this Section 7(b).