Common use of Public Exchange Offer Closing Clause in Contracts

Public Exchange Offer Closing. (a) The closing of the Public Exchange and the TruPs Exchange (the “Public Exchange Offer Closing”) will take place at the offices of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, New York, New York 10017, at 9:00 a.m., New York time, on the second business day after the day on which all conditions set forth in Sections 1.4(c) and (d) are satisfied or waived (other than those conditions that by their terms must be satisfied on the Public Exchange Offer Closing Date, but subject to the satisfaction or waiver of those conditions) or at such other place, time and date as agreed by the parties to this Agreement. The time and date on which the Public Exchange Offer Closing occurs is referred to in this Agreement as the “Public Exchange Offer Closing Date”. (b) Subject to the fulfillment or waiver of the conditions to the Public Exchange Offer Closing in this Section 1.4, at the Public Exchange Offer Closing: (i) (A) if the Stockholder Approval has not been obtained as of such time, the Company will deliver or, in the case of the TruPs Exchange Securities, cause the TruPs Issuer to deliver, to the Investor certificates in proper form evidencing the Public Exchange Securities and the TruPs Exchange Securities registered in the name of Investor or its designee(s) or (B) if the Stockholder Approval has been obtained as of such time, the Company will deliver or, in the case of the TruPs Exchange Securities, cause the TruPs Issuer to deliver, to the Investor certificates in proper form evidencing the Public Exchange Common Stock and the TruPs Exchange Securities registered in the name of the Investor or its designee(s); (ii) the Company will pay or deliver to the Investor the amounts or securities referred to in Sections 1.3(a)(i)(B) and 1.3(a)(ii)(B); and (iii) the Investor will deliver to the Company certificates in proper form evidencing the Public Exchange Preferred Shares and the TruPs Exchange Preferred Shares. (c) The respective obligations of each of the Investor and the Company to consummate the Public Exchange and the TruPs Exchange are subject to the fulfillment (or waiver by the Investor and the Company, as applicable) prior to the Public Exchange Offer Closing of the following conditions: (i) no law or Governmental Order shall have been enacted, entered, promulgated or enforced by any Governmental Entities that prohibits or makes illegal the consummation of the transactions contemplated by this Agreement or that prohibits or restricts the Investor from owning, voting or, subject to the receipt of the Stockholder Approval, converting or exercising any Securities in accordance with the terms thereof, including any law or Governmental Order which seeks to revoke, amend or otherwise modify the terms of the Private Exchange; provided, however, that each of the parties shall use reasonable best efforts to prevent the application of any law or the entry of any such Governmental Order and to cause any such law or Governmental Order to be vacated or otherwise rendered of no effect; provided further, that the Investor shall not be required to initiate, prosecute or contest any lawsuit, action, suit or proceeding; (ii) all material approvals, authorizations, consents, notices, applications, filings, registrations or qualifications of any Governmental Entities required for the consummation of the Public Exchange, the TruPs Exchange and the other transactions contemplated hereby, including any material approvals required to enable the Investor to own, vote, and, subject to the receipt of the Stockholder Approval, convert or exercise any Securities in accordance with the terms thereof, shall have been obtained in form and substance reasonably satisfactory to the Company and the Investor and shall be in full force and effect; and (iii) the NYSE Approval shall be in full force and effect. (d) The obligation of the Investor to consummate the Public Exchange and the TruPs Exchange is also subject to the fulfillment (or waiver by the Investor) at or prior to the Public Exchange Offer Closing of each of the following conditions: (i) (A) the representations and warranties of the Company set forth in (x) Sections 2.2(a), (f), (g), (h) and (l) of this Agreement shall be true and correct in all respects as though made on and as of the Public Exchange Offer Closing Date, (y) Sections 2.2(b) through (e), 2.2(i) through (k) and Section 2.2(m) of this Agreement shall be true and correct in all material respects as though made on and as of the Public Exchange Offer Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct in all material respects as of such other date), and (z) Sections 2.2(n) through (q) of this Agreement (disregarding all qualifications or limitations set forth in such representations and warranties as to “materiality”, “Company Material Adverse Effect” and words of similar import) shall be true and correct as though made on and as of the Public Exchange Offer Closing Date (other than representations and warranties that by their terms speak as of another date, which representations and warranties shall be true and correct as of such other date), except to the extent that the failure of such representations and warranties referred to in this Section 1.4(d)(i)(A)(z) to be so true and correct, individually or in the aggregate, does not have and would not reasonably be likely to have a Company Material Adverse Effect and (B) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Public Exchange Offer Closing; provided that the Company shall have performed in all respects all obligations required to be performed by it under Section 3.12; (ii) the Investor shall have received a certificate signed on behalf of the Company by a senior executive officer certifying to the effect that the conditions set forth in Section 1.4(d)(i) have been satisfied; (iii) (A) the Private Exchange and the Public Investor Exchanges shall have been consummated; and (B) the Investor shall have received a certificate signed on behalf of the Company by a senior executive officer certifying to the effect that the condition set forth in Section 1.4(d)(iii)(A) has been satisfied and certifying the Public Closing Value; (iv) the Company shall have entered into such arrangements with respect to the establishment of the TruPs Exchange Securities as are reasonably satisfactory to the Investor; (v) the Company shall have delivered to the Investor a written opinion from outside counsel to the Company, addressed to the Investor and dated as of the Public Exchange Offer Closing Date, in substantially the form attached hereto as Annex B; (vi) the Company shall have either (A) delivered certificates in proper form evidencing the Public Exchange Securities to the Investor or its designee(s) or (B) delivered certificates in proper form evidencing the Public Exchange Common Stock to the Investor or its designee(s), as applicable; and (vii) the TruPs Issuer shall have delivered certificates in proper form evidencing the TruPs Exchange Securities to the Investor or its designee(s). (e) In the event that the Public Exchange Offer Closing has not occurred at or prior to the Public Investor Exchanges Outside Time due to the failure of any of the conditions in Section 1.4(d) to be satisfied or, if earlier, such date on which the Company shall have announced its intention not to commence, or its decision to terminate, the Public Investor Exchanges without the purchase by the Company of any securities thereunder, then, at any time at the request of the Investor and subject to Section 1.4(c), the Investor and the Company shall consummate the TruPs Exchange in accordance with Sections 1.3(a)(ii) and 1.4(b) within five business days of such request. The time and date on which the TruPs Exchange occurs in accordance with this