Rights to Terminate. This Agreement may, by written notice given on or prior to the Closing Date, in the manner provided in Section 9.12 “Notices,” be terminated at any time prior to the Closing Date: (1) by Seller, TOPIII or Purchaser if (A) any Governmental Authority shall have issued an Order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and such Order, judgment or decree shall have become final and appealable or (B) any statute, rule, Order or regulation shall have been enacted or issued by any Governmental Authority which, directly or indirectly, prohibits the consummation of the Closing; (2) by Seller or TOPIII if there has been a material misrepresentation as of the Effective Date with respect to any of Purchaser’s representations and warranties in this Agreement or a material default or breach by Purchaser with respect to the due and timely performance of any of Purchaser’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten (10) days after receipt by Purchaser of written notice specifying particularly such misrepresentation, default or breach; (3) by Purchaser if there has been a material misrepresentation as of the Effective Date with respect to Seller’s or TOPIII’s representations and warranties in this Agreement or a material default or breach by Seller or TOPIII with respect to the due and timely performance of any of Seller’s or TOPIII’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten (10) days after receipt by Seller or TOPIII of written notice specifying particularly such misrepresentation, default or breach; (4) by mutual agreement of Seller, TOPIII and Purchaser; (5) by Seller, TOPIII or Purchaser if the Closing has not occurred on or before June 16, 2006 because any condition precedent set forth in Article 6 or Article 7 has not been waived or satisfied (but with respect to the conditions relating to the deliverables set forth in Sections 6.6, 6.7, 7.6, 7.11, in clauses (a) and (c) through (j) of Schedule 6.8 “Closing Deliveries By Seller and TOPIII,” and in clauses (a) through (g), (i) and of Schedule 7.8 “Closing Deliveries By Purchaser,” such conditions are capable of being satisfied by delivery of the applicable agreement, certificate, document or opinion if the Closing were to have occurred on June 16, 2006); provided that the right to terminate this Agreement under this Section 9.14(a)(5) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the direct cause of, or directly resulted in, the failure to satisfy the relevant condition precedent on or before June 16, 2006;
Appears in 3 contracts
Sources: Purchase and Sale Agreement (Public Service Co of New Mexico), Purchase and Sale Agreement (Public Service Co of New Mexico), Purchase and Sale Agreement (Public Service Co of New Mexico)
Rights to Terminate. This To the extent set forth in Section 12.2, or to the extent specifically permitted herein a portion thereof, this Agreement maymay be terminated by or with respect to a particular Purchaser according to this Section 12.1. With respect to each Purchaser, any event, action, omission, notice or other item giving rise to a right to terminate by Seller under this Article 12 shall be between Seller and the Purchaser responsible for such right of termination. Seller shall not have the right to terminate as to the other Purchaser unless such right to terminate is directly related actions arising from or a failure to act on the part of both Purchasers. Subject to the preceding sentence, this Agreement may be terminated by or with respect to a particular Purchaser:
(a) At any time prior to Closing, by mutual written consent of Seller and such Purchaser;
(b) Prior to the Closing, by Seller if there has been a material default or breach under this Agreement by such Purchaser that is not cured by the earlier of the Closing Date or the date thirty (30) days after notice from Seller specifying with particularity such breach or default;
(c) Prior to the Closing, by such Purchaser upon written notice given on to Seller if there has been a material default or prior breach under this Agreement by Seller that is not cured by the Termination Date;
(d) Prior to the Closing DateClosing, upon the written notice of such Purchaser or Seller, in the manner provided event a Material Adverse Effect occurs or is first manifest subsequent to the Effective Date (as determined by the express written agreement of Seller and such Purchaser, or, failing such express written agreement, upon a determination made in accordance with Section 3.5(c) and/or Section 13.7 hereof) and continues without cure until the Termination Date and the MAE Adjustment Amount (as defined in Section 9.12 “Notices,” be terminated 3.3(e) hereof) resulting therefrom exceeds such Purchaser's Proportionate Share of Fifty Million Dollars (U.S. $50,000,000);
(e) By such Purchaser or Seller upon written notice to the other: (i) at any time prior to the Closing Date:
(1) by Seller, TOPIII or Purchaser if (A) any Governmental Authority court of competent jurisdiction shall have issued an Orderorder, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and such Orderorder, judgment or decree shall have become final and appealable or without the possibility of appeal; (Bii) at any statute, rule, Order or regulation time prior to the Closing if any applicable Law shall have been enacted or issued by any Governmental Authority having jurisdiction over the Transactions which, directly or indirectly, prohibits the consummation of the ClosingTransactions; or (iii) if the conditions of the terminating Party for Closing cannot reasonably be fulfilled or have not been fulfilled or waived by 11:59 p.m. Central prevailing time on June 30, 2005 (such date or, if it shall have been extended to a later date pursuant to the following provisions of this Section 12.1(e), such later date to which it shall have been extended, the "Termination Date"), unless the failure of any condition to be fulfilled is the result of the material breach of this Agreement by the Party seeking to terminate; provided, however, that if (A) in respect of Texas Genco, on June 30, 2005 any of the conditions set forth in Section 10.2 or Section 11.2 shall not have been fulfilled or, in respect of each Purchaser, to the extent relating to such Purchaser's Required Regulatory Approvals or Seller's Required Regulatory Approvals, Section 9.4, Section 10.4 or Section 11.4, as applicable, shall not have been fulfilled and (B) all conditions set forth in ARTICLE 9, ARTICLE 10 and ARTICLE 11, as applicable, other than those described in the preceding clause (A) and the condition set forth in Section 9.9 or Section 10.9, as applicable, shall have been fulfilled or waived or shall be capable of being fulfilled, and the condition set forth in Section 9.9 or Section 10.9, as applicable, shall be capable of being fulfilled on or before October 31, 2005, then such Purchaser or Seller may extend the Termination Date to October 31, 2005, and provided, further, however, that Seller or either Purchaser may extend the Termination Date to the end of the thirty (30) day period referred to in either of the provisos set forth in the first sentence of Section 3.1 if the Termination Date would otherwise occur prior to the end of either such thirty (30) day period;
(2f) by By such Purchaser upon written notice to Seller or TOPIII if there if: (i) Seller has been a material misrepresentation as within the then-previous fifteen (15) days given such Purchaser any notice pursuant to Section 7.3(a), (ii) such Purchaser has notified Seller of the Effective Date with respect its intent to any of Purchaser’s representations and warranties in terminate pursuant to this Agreement or a material default or breach by Purchaser with respect to the due and timely performance of any of Purchaser’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse EffectSection 12.1(f), and (iii) the matter that is the subject of such misrepresentationnotice continues to exist for a period of 30 days after such notice by such Purchaser without Seller having commenced and diligently continued in good faith actions to cure such matter on or before the Termination Date, default or breach or
(g) By Seller upon written notice to such Purchaser if: (i) such Purchaser has within the then-previous fifteen (15) days given Seller any notice pursuant to Section 7.3(b), (ii) Seller has notified such Purchaser of its intent to terminate pursuant to this Section 12.1(g), and (iii) the matter that is not cured or waived in writing by the earlier subject of the Closing Date or the date ten such notice continues to exist for a period of thirty (1030) days after receipt by Purchaser of written such notice specifying particularly such misrepresentation, default or breach;
(3) by Purchaser if there has been a material misrepresentation as of the Effective Date with respect to Seller’s or TOPIII’s representations and warranties in this Agreement or a material default or breach by Seller or TOPIII with respect without such Purchaser having commenced and diligently continued in good faith actions to the due and timely performance of any of Seller’s or TOPIII’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and cure such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten (10) days after receipt by Seller or TOPIII of written notice specifying particularly such misrepresentation, default or breach;
(4) by mutual agreement of Seller, TOPIII and Purchaser;
(5) by Seller, TOPIII or Purchaser if the Closing has not occurred matter on or before June 16, 2006 because any condition precedent set forth in Article 6 or Article 7 has not been waived or satisfied (but with respect to the conditions relating to the deliverables set forth in Sections 6.6, 6.7, 7.6, 7.11, in clauses (a) and (c) through (j) of Schedule 6.8 “Closing Deliveries By Seller and TOPIII,” and in clauses (a) through (g), (i) and of Schedule 7.8 “Closing Deliveries By Purchaser,” such conditions are capable of being satisfied by delivery of the applicable agreement, certificate, document or opinion if the Closing were to have occurred on June 16, 2006); provided that the right to terminate this Agreement under this Section 9.14(a)(5) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the direct cause of, or directly resulted in, the failure to satisfy the relevant condition precedent on or before June 16, 2006;Termination Date.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Texas Genco Holdings Inc), Purchase and Sale Agreement (Aep Texas Central Co)
Rights to Terminate. This To the extent set forth in Section 10.2, this Agreement may, by written notice given on or may be terminated (the date of such termination being the “Termination Date”):
(a) At any time prior to the Closing, by mutual written consent of Seller and Purchaser;
(b) By one Party upon written notice to the other Party on or after the Expiration Date;
(c) By one Party upon written notice to the other Party if there has been a material default or breach of any representation, warranty, covenant or other provision under this Agreement by such other Party that is not cured by the earlier of the Closing DateDate or the date thirty (30) days after receipt by such other Party of written notice from the terminating Party specifying with particularity such breach or default, provided, that the failure of the Party having a right to terminate the Agreement pursuant to this Section 10.1(c) to in fact terminate the manner provided in Section 9.12 “Notices,” Agreement based on any such default or breach shall not waive or be terminated deemed a waiver by such Party of any other rights which such Party may have under the Agreement;
(d) By one Party upon written notice to the other Party: (i) at any time prior to the Closing Date:
(1) by SellerClosing, TOPIII if any federal or Purchaser if (A) any Governmental Authority state court of competent jurisdiction shall have issued an Order, judgment or decree Order permanently restraining, enjoining or otherwise prohibiting the Closing, and such Orderorder, judgment or decree shall have become final and appealable without the possibility of appeal; or (Bii) at any statutetime prior to the Closing, rule, Order or regulation if any Law shall have been enacted or issued by any Governmental Authority which, directly or indirectly, prohibits the consummation of the ClosingTransactions;
(2e) Immediately upon any termination of the Facility Purchase Agreement, notice of which termination shall be promptly provided by Seller or TOPIII if there has been a material misrepresentation as of the Effective Date with respect to any of Purchaser’s representations and warranties in this Agreement or a material default or breach by Purchaser with respect ; and
(f) By one Party upon written notice to the due and timely performance of any of Purchaser’s covenants and agreements contained other Party, if such other Party is or becomes Bankrupt or there are proceedings pending or being contemplated by it or threatened against it which could reasonably be expected to result in this Agreement it being or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten (10) days after receipt by Purchaser of written notice specifying particularly such misrepresentation, default or breach;
(3) by Purchaser if there has been a material misrepresentation as of the Effective Date with respect to Seller’s or TOPIII’s representations and warranties in this Agreement or a material default or breach by Seller or TOPIII with respect to the due and timely performance of any of Seller’s or TOPIII’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten (10) days after receipt by Seller or TOPIII of written notice specifying particularly such misrepresentation, default or breach;
(4) by mutual agreement of Seller, TOPIII and Purchaser;
(5) by Seller, TOPIII or Purchaser if the Closing has not occurred on or before June 16, 2006 because any condition precedent set forth in Article 6 or Article 7 has not been waived or satisfied (but with respect to the conditions relating to the deliverables set forth in Sections 6.6, 6.7, 7.6, 7.11, in clauses (a) and (c) through (j) of Schedule 6.8 “Closing Deliveries By Seller and TOPIII,” and in clauses (a) through (g), (i) and of Schedule 7.8 “Closing Deliveries By Purchaser,” such conditions are capable of being satisfied by delivery of the applicable agreement, certificate, document or opinion if the Closing were to have occurred on June 16, 2006); provided that the right to terminate this Agreement under this Section 9.14(a)(5) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the direct cause of, or directly resulted in, the failure to satisfy the relevant condition precedent on or before June 16, 2006;becoming Bankrupt.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Cleco Midstream Resources LLC), Purchase and Sale Agreement (Cleco Corp)
Rights to Terminate. This Agreement may, by written notice given on or prior to the Closing Date, in the manner provided in Section 9.12 “Notices,” may be terminated at any time prior to the Closing Dateonly as follows:
(1a) by Seller, TOPIII or Purchaser if (A) any Governmental Authority shall have issued an Order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and such Order, judgment or decree shall have become final and appealable or (B) any statute, rule, Order or regulation shall have been enacted or issued by any Governmental Authority which, directly or indirectly, prohibits the consummation mutual written consent of the ClosingSeller and the Buyer;
(2b) by the Seller by giving written notice to the Buyer if the Buyer is in breach of any representation, warranty or TOPIII if there has been a material misrepresentation as of the Effective Date with respect to any of Purchaser’s representations and warranties in covenant under this Agreement or a material default or (and the Seller is not then in breach by Purchaser with respect to the due and timely performance of any of Purchaser’s covenants and agreements contained in this Agreement representation, warranty or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten (10) days after receipt by Purchaser of written notice specifying particularly such misrepresentation, default or breachcovenant);
(3c) by Purchaser the Seller if there has been the Seller enters into a material misrepresentation as merger, acquisition or other agreement (including an agreement in principle) to effect a Superior Proposal or the Board of Directors of the Effective Date with respect Seller resolves to Seller’s or TOPIII’s representations and warranties in do so; provided, however, that the Seller may not terminate this Agreement or pursuant to this Section 11.1(c) unless (i) the Seller has delivered to Buyer a material default or breach written notice of the Seller's intent to enter into such an agreement to effect the Superior Proposal, (ii) ten business days have elapsed following delivery to Buyer of such written notice by the Seller or TOPIII and (iii) during such ten-business- day period the Seller has fully cooperated with respect Buyer, including informing Buyer of the terms and conditions of the Business Combination and the identity of the person making the proposal for the Business Combination, with the intent of enabling Buyer to agree to a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected; provided, further, that the Company may not terminate this Agreement pursuant to this Section 11.1(c) unless at the end of such ten-business-day period the Board of Directors of the Seller continues reasonably to believe that the Business Combination constitutes a Superior Proposal when compared to the due transactions contemplated hereby (taking into account any such modification as may be proposed by Buyer) and timely performance of any of Seller’s or TOPIII’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in concurrently with such termination the aggregate, has had, or is reasonably likely Seller pays to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by Buyer the earlier of the Closing Date or the date ten (10) days after receipt by Seller or TOPIII of written notice specifying particularly such misrepresentation, default or breachTermination Fee;
(4d) by mutual agreement the Buyer by giving written notice to the Seller if the Seller is in breach of Sellerany representation, TOPIII warranty or covenant under this Agreement (and Purchaser;the Buyer is not then in breach of any representation, warranty or covenant); or
(5e) by Seller, TOPIII or Purchaser the Buyer by giving written notice to the Seller if the Closing has shall not have occurred on or before June 16November 30, 2006 because 2000. Each party's right to termination hereunder is in addition to any condition precedent set forth in Article 6 or Article 7 has not been waived or satisfied (but with respect to the conditions relating to the deliverables set forth in Sections 6.6, 6.7, 7.6, 7.11, in clauses (a) and (c) through (j) of Schedule 6.8 “Closing Deliveries By Seller and TOPIII,” and in clauses (a) through (g), (i) and of Schedule 7.8 “Closing Deliveries By Purchaser,” such conditions are capable of being satisfied by delivery of the applicable agreement, certificate, document rights it may have hereunder or opinion if the Closing were to have occurred on June 16, 2006); provided that the right to terminate this Agreement under this Section 9.14(a)(5) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the direct cause of, or directly resulted in, the failure to satisfy the relevant condition precedent on or before June 16, 2006;otherwise.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Ophidian Pharmaceuticals Inc), Asset Purchase Agreement (Ophidian Pharmaceuticals Inc)
Rights to Terminate. This Agreement may, by written notice given on or prior to the Closing Asset Transfer Date, in the manner provided in Section 9.12 “Notices,” 14.11, be terminated at any time prior to the Closing Date:
(1) by Seller, TOPIII or Purchaser if (A) any Governmental Authority shall have issued an Order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and such Order, judgment or decree shall have become final and appealable or (B) any statute, rule, Order or regulation shall have been enacted or issued by any Governmental Authority which, directly or indirectly, prohibits the consummation of the Closing;
(2) Asset Transfer Date as provided below: by Seller or TOPIII if there has been a material misrepresentation as of the Effective Date or a material default or breach by Purchaser with respect to any of Purchaser’s representations and warranties in this Agreement or a material default in any Related Agreement or breach by Purchaser with respect to the due and timely performance of any of Purchaser’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date (i) within ten (10) days after receipt by Purchaser of written notice from Seller specifying particularly such misrepresentation, default or breach;
breach in the case of any of Purchaser’s payment obligations, or (3ii) within thirty (30) days of written notice from Seller specifying particularly such misrepresentation, default or breach in all other cases, provided, however, no right of termination shall arise under this subsection (ii) if such misrepresentation, default or breach is not able to be cured in such thirty-day period, and Purchaser is in the process of curing the misrepresentation, default or breach in such thirty-day period and shall have cured the misrepresentation, default or breach within ninety (90) days of written notice from Seller thereof; by Purchaser if there has been a material misrepresentation as of the Effective Date or a material default or breach by Seller with respect to Seller’s or TOPIII’s representations and warranties in this Agreement or a material default in any Related Agreement or breach by Seller or TOPIII with respect to the due and timely performance of any of Seller’s or TOPIII’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date (i) within ten (10) days after receipt by Seller or TOPIII of written notice from Purchaser specifying particularly such misrepresentation, default or breach;
breach in the case of any of Seller’s payment obligations, or (4ii) within thirty (30) days of written notice from Purchaser specifying particularly such misrepresentation, default or breach in all other cases, provided, however, no right of termination shall arise under this subsection (ii) if such misrepresentation, default or breach is not able to be cured in such thirty-day period, and Seller is in the process of curing the misrepresentation, default or breach in such thirty-day period and shall have cured the misrepresentation, default or breach within ninety (90) days of written notice from Purchaser thereof; by Seller or Purchaser as provided in Section 9.1.1; by Purchaser as provided in Section 2.3.4; by Seller or Purchaser if any Guaranteed Date is extended for more than sixty (60) days due to Force Majeure as provided in Section 2.3.5; or by mutual agreement of Seller, TOPIII Seller and Purchaser;
. Effect of Termination. If this Agreement is terminated pursuant to Section 14.13.1, all further obligations and liabilities of the Parties hereunder will terminate, except (5i) as otherwise contemplated by Sellerthis Agreement, TOPIII or Purchaser if and (ii) for the Closing has not occurred on or before June 16, 2006 because any condition precedent set forth in Article 6 or Article 7 has not been waived or satisfied (but with respect to the conditions relating to the deliverables obligations set forth in Sections 6.6, 6.7, 7.6, 7.11, in clauses (a) 7.12 and (c) through (j) of Schedule 6.8 “Closing Deliveries By Seller 10.2 and TOPIII,” and in clauses (a) through (g), (i) and of Schedule 7.8 “Closing Deliveries By Purchaser,” such conditions are capable of being satisfied by delivery of the applicable agreement, certificate, document or opinion if the Closing were to have occurred on June 16, 2006); provided that the right to terminate this Agreement under this Section 9.14(a)(5) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the direct cause of, or directly resulted inArticle 11. Upon termination, the failure originals of any items, documents or written materials provided by one Party to satisfy the relevant condition precedent on or before June 16other Party will be returned by the receiving Party to the providing Party, 2006;and any Confidential Information retained by the receiving Party will be kept confidential.
Appears in 1 contract
Sources: Build Own Transfer Agreement
Rights to Terminate. This Agreement may, by written notice given on or prior to the Closing Date, in the manner provided in Section 9.12 “Notices,” 12.13, be terminated at any time prior to the Closing Date:Date (or such other date as may be set forth below):
(1) by Seller, TOPIII or Purchaser if (A) any Governmental Authority shall have issued an Order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and such Order, judgment or decree shall have become final and appealable or (B) any statute, rule, Order or regulation shall have been enacted or issued by any Governmental Authority which, directly or indirectly, prohibits the consummation of the Closing;
(2a) by Seller or TOPIII if there has been a misrepresentation by Purchaser that would have a material misrepresentation as of the Effective Date adverse effect with respect to any of Purchaser’s representations and warranties in this Agreement and the transactions contemplated herein or a material default or material breach by Purchaser with respect to the due and timely performance of any of Purchaser’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, (a Material Adverse Effect“Purchaser Event of Default”), and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten thirty (1030) days after receipt by Purchaser Purchaser, of written notice specifying particularly such misrepresentation, default or breach;
(3b) by Purchaser if there has been a material misrepresentation as of the Effective Date by Seller that would have a Material Adverse Effect with respect to Seller’s or TOPIII’s representations and warranties in this Agreement and the transactions contemplated herein or a material default or material breach by Seller or TOPIII with respect to the due and timely performance of any of Seller’s or TOPIII’s covenants and agreements contained in this Agreement or in any Related Agreement(a “Seller Event of Default” and together with a Purchaser Event of Default, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effectan “Event of Default”), and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date Date, or the date ten thirty (1030) days after receipt by Seller or TOPIII of written notice specifying particularly such misrepresentation, default or breach;
(4c) by mutual agreement Purchaser or Seller upon written notice, if any Right of First Refusal has not expired or been waived in writing by every Facilities Owner other than Seller and Purchaser (as applicable) within one hundred and eighty (180) days of the Effective Date or such other date as mutually agreed by the Parties; provided, that if any Facilities Owner exercises its Right of First Refusal, then the Purchaser, to the extent it is authorized to exercise its Right of Refusal under the Facilities Co-Tenancy Agreement, shall exercise such right in accordance with Section 13 of the Facilities Co-Tenancy Agreement; and provided, further, the Purchaser and Seller, TOPIII pursuant to Section 6.6 and Purchaser;
subject to the requirements of Section 13 of the Facilities Co-Tenancy Agreement, agree to (5i) by Selleramend this Agreement to account for such exercise (to amend the description of the Assets to reflect the reduced interest to be acquired hereunder); and (ii) this Agreement, TOPIII or as so amended, shall (A) be the terms and conditions upon which Seller will convey the amended Assets to Purchaser if the Closing has not occurred on or before June 16, 2006 because any condition precedent set forth in Article 6 or Article 7 has not been waived or satisfied (but provided hereunder with respect to the conditions relating exercise of Purchaser’s Right of First Refusal under the Facilities Co-Tenancy Agreement and (B) be deemed by Purchaser and Seller to have met the deliverables requirements of Section 13 of the Facilities Co-Tenancy Agreement;
(d) by Purchaser or Seller, if a permanent injunction or other order or decree by any federal or state court or Governmental Authority is issued which prevents the consummation of the transactions or if a Law shall have been enacted by any state or federal government or Governmental Authority in the United States which prohibits the consummation of the transactions; provided, that the Party seeking termination hereunder has satisfied any reasonable appeals process with respect to such permanent injunction or other order or decree;
(e) by Seller if a Seller’s Required Regulatory Approval is denied or if Seller has a material condition placed upon it as set forth in Sections 6.6Section 6.2 or by Purchaser if a Purchaser’s Required Regulatory Approval is denied or if Purchaser has a material condition placed upon it as set forth in Section 6.2;
(f) by Purchaser or Seller, 6.7if Closing does not occur by December 31, 7.6, 7.112024 (unless such date has been mutually agreed to be changed pursuant to Section 3.1, in clauses (a) and (c) through (j) of Schedule 6.8 “Closing Deliveries By Seller and TOPIII,” and in clauses (a) through (g), (i) and of Schedule 7.8 “Closing Deliveries By Purchaser,” which case such conditions are capable of being satisfied by delivery of the applicable agreement, certificate, document or opinion if the Closing were to have occurred on June 16, 2006other mutually agreed date shall apply); provided provided, that the defaulting or breaching Party shall have no right to terminate this Agreement under this Section 9.14(a)(511.1(f) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the direct cause ofif such Party’s default or breach caused, or directly resulted in, the failure of the Closing to satisfy the relevant condition precedent occur on or before June 16December 31, 20062024 (unless such date has been mutually agreed to be changed pursuant to Section 3.1, in which case such other mutually agreed date shall apply);
(g) by Purchaser pursuant to Section 12.4; or
(h) by mutual agreement of Seller and Purchaser.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Public Service Co of New Mexico)
Rights to Terminate. This Agreement Agreement, or to the extent specifically permitted herein a portion thereof, may, by written notice given on or prior to the Closing Date, in the manner provided in Section 9.12 “11.10 "Notices,” " be terminated at any time prior to the Closing Date:
(1) by Seller, TOPIII or Purchaser if (A) any Governmental Authority shall have issued an Order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and such Order, judgment or decree shall have become final and appealable or (B) any statute, rule, Order or regulation shall have been enacted or issued by any Governmental Authority which, directly or indirectly, prohibits the consummation of the Closing;
(2a) by Seller or TOPIII if there has been a material misrepresentation as of the Effective Date with respect to any of Purchaser’s representations and warranties in this Agreement or a material default or breach by Purchaser with respect to Purchaser's representations and warranties in this Agreement or the due and timely performance of any of Purchaser’s 's covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten thirty (1030) days after receipt by Purchaser of written notice specifying particularly such misrepresentation, default or breach;
(3b) by Purchaser if there has been a material misrepresentation as of the Effective Date with respect to Seller’s or TOPIII’s representations and warranties in this Agreement or a material default or breach by Seller or TOPIII with respect to Seller's representations and warranties in this Agreement or the due and timely performance of any of Seller’s or TOPIII’s 's covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten thirty (1030) days after receipt by Seller or TOPIII of written notice specifying particularly such misrepresentation, default or breach;
(4c) by Purchaser, upon written notice to Seller, if any of the Purchaser's Required Regulatory Approvals shall have been denied (and a petition for rehearing or refiling of an application initially denied without prejudice shall also have been denied), and such denial was not caused by or the result of a breach of this Agreement by Purchaser, or if the Purchaser's Required Regulatory Approvals shall have been granted but are not in form and substance reasonably satisfactory to Purchaser (including adverse conditions relating to Purchaser or the Assets);
(d) by Seller, upon written notice to Purchaser, if any of the Seller's Required Regulatory Approvals shall have been denied (and a petition for rehearing or refiling of an application initially denied without prejudice shall also have been denied), and such denial was not caused by or the result of a breach of this Agreement by Seller, or shall have been granted but are not in form and substance reasonably satisfactory to Seller (including adverse conditions relating to Seller or the Assets);
(e) by Purchaser in accordance with SECTION 6.7 "Risk of Loss";
(f) by mutual agreement of Seller, TOPIII Seller and Purchaser;; or
(5g) subject to Section 6.13(b)(iii), by Seller, TOPIII Seller or Purchaser if the conditions to such Party's Closing has have not occurred on by December 31, 2001, or before June 16if the conditions of the terminating Party for Closing cannot reasonably be met by such date, 2006 because any unless the reason for the failure of condition precedent set forth in Article 6 or Article 7 has not been waived or satisfied (but with respect to this Section 10.1(g) is the conditions relating to the deliverables set forth in Sections 6.6, 6.7, 7.6, 7.11, in clauses (a) and (c) through (j) of Schedule 6.8 “Closing Deliveries By Seller and TOPIII,” and in clauses (a) through (g), (i) and of Schedule 7.8 “Closing Deliveries By Purchaser,” such conditions are capable of being satisfied by delivery result of the applicable agreement, certificate, document or opinion if the Closing were to have occurred on June 16, 2006); provided that the right to terminate material breach of this Agreement under this Section 9.14(a)(5) shall not be available by the Party seeking to any Party whose failure to fulfill any obligation under this Agreement has been the direct cause of, or directly resulted in, the failure to satisfy the relevant condition precedent on or before June 16, 2006;terminate.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pinnacle West Capital Corp)
Rights to Terminate. This Agreement may, by written notice given on or prior to the Closing Date, in the manner provided in Section 9.12 “Notices,” 15.11, be terminated at any time prior to the Closing Date:
Date as provided below: by the Seller and the Project Company jointly (1but not individually) by Seller, TOPIII or Purchaser if (A) any Governmental Authority shall have issued an Order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and such Order, judgment or decree shall have become final and appealable or (B) any statute, rule, Order or regulation shall have been enacted or issued by any Governmental Authority which, directly or indirectly, prohibits the consummation of the Closing;
(2) by Seller or TOPIII if there has been a material misrepresentation as of or a material default or breach by the Effective Date Purchaser with respect to any of the Purchaser’s representations and warranties in this Agreement or a material default in any Related Agreement or breach by Purchaser with respect to the due and timely performance of any of the Purchaser’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date (i) within ten (10) days after receipt by Purchaser of written notice from the Seller specifying particularly such misrepresentation, default or breach;
breach in the case of any of the Purchaser’s payment obligations, or (3ii) within thirty (30) days of written notice from the Seller specifying particularly such misrepresentation, default or breach in all other cases, provided, however, no right of termination shall arise under this subsection (ii) if such misrepresentation, default or breach is not able to be cured in such thirty-day period, and the Purchaser is in the process of curing the misrepresentation, default or breach in such thirty-day period and shall have cured the misrepresentation, default or breach within ninety (90) days of written notice from the Seller thereof; by the Purchaser if there has been a material misrepresentation as of or a material default or breach by the Effective Date Seller or the Project Company with respect to the Seller’s or TOPIIIthe Project Company’s representations and warranties in this Agreement or a material default in any Related Agreement or breach by Seller or TOPIII with respect to the due and timely performance of any of the Seller’s or TOPIIIthe Project Company’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date (i) within ten (10) days after receipt by Seller or TOPIII of written notice from the Purchaser specifying particularly such misrepresentation, default or breach;
breach in the case of any of the Seller’s or the Project Company’s payment obligations, or (4ii) within thirty (30) days of written notice from the Purchaser specifying particularly such misrepresentation, default or breach in all other cases, provided, however, no right of termination shall arise under this subsection (ii) if such misrepresentation, default or breach is not able to be cured in such thirty-day period, and the Seller or the Project Company is in the process of curing the misrepresentation, default or breach in such thirty-day period and shall have cured the misrepresentation, default or breach within ninety (90) days of written notice from the Purchaser thereof; by the Seller or the Purchaser as provided in Section 10.1; subject to Sections 2.4 and 15.13(b), by the Seller if it has made all Commercially Reasonable Efforts to do so but it is unable to secure the Governmental Approvals and Permits necessary to construct the Project by the First Permitting Deadline, with the Seller’s termination notice to be delivered to the Purchaser not later than five (5) Business Days after such Permitting Deadline; by the Purchaser if the Seller has not extended the Permitting Milestone pursuant to Section 2.4 and the Seller fails to secure the Governmental Approvals and Permits necessary to construct the Project prior to the First Permitting Deadline; by mutual agreement of Sellerthe Seller and the Purchaser; by the Purchaser if (i) the Project fails to meet any Critical Milestone within sixty (60) days after the date specified in Schedule 2.4 by which such Critical Milestone is to be achieved, TOPIII and Purchaser;
(5ii) the Project fails to meet any other Project Milestone within twelve (12) months after the date specified in Schedule 2.4 by Sellerwhich such Project Milestone is to be achieved, TOPIII (iii) the Seller gives Purchaser written notice in accordance with Section 15.11 that it is unable to cause any Project Milestone to be achieved on or before the date specified therefor in Schedule 2.4, or (iv) the Seller fails to achieve the Minimum Performance Guarantees during a single Performance Test (or, in the case of the failure to satisfy the Base Reliability Guarantee, during the Base Reliability Test) prior to the Date Certain; by the Purchaser as provided in Section 2.3(c); by the Purchaser if the Closing Commercial Availability Date has not occurred on or before June 16the Date Certain, 2006 because any condition precedent set forth as described in Article 6 or Article 7 has not been waived or satisfied (but with respect to the conditions relating to the deliverables set forth in Sections 6.6, 6.7, 7.6, 7.11, in clauses (aSection 2.3(b) and (c) through (j) of Schedule 6.8 “Closing Deliveries By Seller and TOPIII,” and in clauses (a) through (g), (i) and of Schedule 7.8 “Closing Deliveries By Purchaser,” such conditions are capable of being satisfied by delivery of the applicable agreement, certificate, document or opinion if the Closing were to have occurred on June 16, 2006); provided that the right to terminate this Agreement under this Section 9.14(a)(5) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the direct cause of, or directly resulted in, the failure to satisfy the relevant condition precedent on or before June 16, 2006;or
Appears in 1 contract
Sources: Purchase and Sale Agreement
Rights to Terminate. This Subject to Section 25.2(c), this Agreement maymay be terminated (the date of such termination, the “Termination Date”):
(a) by mutual written consent of the Parties;
(b) by Seller, upon written notice given to Buyer, or by Buyer, upon written notice to Seller, on or after the FNTP Expiration Date if the FNTP Date has not occurred on or prior to the Closing FNTP Expiration Date; provided, however, that the right to terminate this Agreement under this Section 25.1(b) shall not be available to a Party whose action or failure to act has been the primary cause of the failure of the FNTP Date to occur on or prior to the FNTP Expiration Date and such action or failure to act constitutes a material breach of this Agreement or any Ancillary Agreement by such Party;
(c) by Buyer in the manner provided accordance with Section 7.4(c) (Delay in Section 9.12 “Notices,” be terminated Substantial Completion Date);
(d) by Seller, upon written notice to Buyer, or by Buyer, upon written notice to Seller, if, at any time prior to the Closing Date:
Closing, (1) by Seller, TOPIII or Purchaser if (Ai) any Governmental Authority of competent jurisdiction shall have issued an Order, judgment a permanent Order (A) declaring this Agreement or decree permanently any Ancillary Agreement invalid or unenforceable in any material respect or (B) restraining, enjoining enjoining, or otherwise prohibiting or making illegal the Closingconsummation of the Transactions, including the transactions contemplated by the Ancillary Agreements, and such Order, judgment or decree Order shall have become final and non-appealable (a “Termination Order”); (ii) prior to the FNTP Date, any of Seller’s Regulatory Approvals or Buyer’s Regulatory Approvals is denied in a final, non-appealable Order or other final, non-appealable action issued or taken by a Governmental Authority with jurisdiction; or (Biii) any statute, rule, Order or regulation Action shall have been enacted taken, or issued Law enacted, promulgated, or deemed applicable to the Transactions, including the transactions contemplated by any the Ancillary Agreements, by a Governmental Authority whichwith competent jurisdiction that, directly or indirectly, prohibits the consummation of the ClosingTransactions, including the transactions contemplated by the Ancillary Agreements, as herein or therein provided; provided, however, that a Party shall not have the right to terminate this Agreement pursuant to clause (i) of this Section 25.1(d) if such Party or any of its Affiliates has sought the entry of, or has failed to use commercially reasonable efforts to oppose the entry of, such Termination Order;
(2e) without limiting any other termination right hereunder, by Seller or TOPIII Seller, upon written notice to Buyer, if there has been a material misrepresentation as of the Effective Date with respect to any of Purchaser’s representations and warranties in this Agreement or a material default or material breach by Purchaser with respect to the due and timely performance of any of Purchaser’s covenants and agreements representation, warranty, covenant, or obligation contained in this Agreement (other than any failure of Buyer to make when due any payment to Seller under this Agreement or in any Related Ancillary Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had) by Buyer, or is reasonably likely to haveby Buyer, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten (10) days after receipt by Purchaser of upon written notice specifying particularly such misrepresentationto Seller, default or breach;
(3) by Purchaser if there has been a material misrepresentation as of the Effective Date with respect to Seller’s or TOPIII’s representations and warranties in this Agreement or a material default or material breach by Seller or TOPIII with respect to the due and timely performance of any of Seller’s representation, warranty, covenant, or TOPIII’s covenants and agreements obligation contained in this Agreement (other than a material breach of Section 24.13 or any failure of Seller to make when due any payment to Buyer under this Agreement or any Ancillary Agreement) by Seller, in any Related Agreementeach case, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach that is not cured or waived in writing by the earlier of the Closing Date or the date ten thirty (1030) days after receipt by Seller or TOPIII such other Party of written notice from the terminating Party specifying particularly with particularity such misrepresentationbreach or default; provided, however, that if it would not reasonably be expected to remedy, or it is impossible to remedy, such default or breach within such thirty (30)-day period, the cure period shall be extended for an additional sixty (60)-day period so long as (i) the Party in default or breach continues to diligently pursue to cure of such default or breach and (ii) such default or breach would reasonably be expected to be cured within such additional sixty (60)-day cure period;
(f) by ▇▇▇▇▇, upon written notice to Seller, if Seller is or becomes Bankrupt;
(g) by Seller, upon written notice to ▇▇▇▇▇, if ▇▇▇▇▇ is or becomes Bankrupt;
(h) by ▇▇▇▇▇, upon written notice to Seller, if there has been a material breach of the obligations of Seller in Section 24.13 (Credit Support) and such breach is not cured within three (3) Business Days after receipt by Seller of written notice from Buyer of such breach;
(4i) by mutual agreement of ▇▇▇▇▇, upon written notice to Seller, TOPIII if Seller has failed to make when due any payment to Buyer under this Agreement or any Ancillary Agreement and Purchasersuch failure is not cured within ten (10) Business Days after receipt by Seller of written notice from Buyer of such failure;
(5j) by Seller, TOPIII or Purchaser upon written notice to Buyer, if the Closing ▇▇▇▇▇ has not occurred on or before June 16, 2006 because failed to make when due any condition precedent set forth in Article 6 or Article 7 has not been waived or satisfied (but with respect payment to the conditions relating to the deliverables set forth in Sections 6.6, 6.7, 7.6, 7.11, in clauses (a) and (c) through (j) of Schedule 6.8 “Closing Deliveries By Seller and TOPIII,” and in clauses (a) through (g), (i) and of Schedule 7.8 “Closing Deliveries By Purchaser,” such conditions are capable of being satisfied by delivery of the applicable agreement, certificate, document or opinion if the Closing were to have occurred on June 16, 2006); provided that the right to terminate this Agreement under this Section 9.14(a)(5) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been or any Ancillary Agreement and such failure is not cured within ten (10) Business Days after receipt by Buyer of written notice from Seller of such failure;
(k) by Seller, in accordance with Section 20.6(e) (Title Cure Cap); and
(l) by ▇▇▇▇▇, upon written notice to Seller, in the direct cause of, or directly resulted in, event of a Seller Change of Control occurring prior to the failure to satisfy the relevant condition precedent on or before June 16, 2006;Substantial Completion Payment Date.
Appears in 1 contract
Rights to Terminate. This Agreement may, by written notice given on or prior to the Closing Date, in the manner provided in Section 9.12 “"Notices,” " be terminated at any time prior to the Closing Date:
(1) by Seller, TOPIII TNMP or Purchaser if (A) any Governmental Authority shall have issued an Order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and such Order, judgment or decree shall have become final and appealable or (B) any statute, rule, Order or regulation shall have been enacted or issued by any Governmental Authority which, directly or indirectly, prohibits the consummation of the Closing;
(2) by Seller or TOPIII TNMP if there has been a material misrepresentation as of the Effective Date with respect to any of Purchaser’s 's representations and warranties in this Agreement or a material default or breach by Purchaser with respect to the due and timely performance of any of Purchaser’s 's covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten (10) days after receipt by Purchaser of written notice specifying particularly such misrepresentation, default or breachbreach (a "Purchaser's Default");
(3) by Purchaser if there has been a material misrepresentation as of the Effective Date with respect to Seller’s 's or TOPIII’s TNMP's representations and warranties in this Agreement or a material default or breach by Seller or TOPIII TNMP with respect to the due and timely performance of any of Seller’s 's or TOPIII’s TNMP's covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten (10) days after receipt by Seller or TOPIII TNMP of written notice specifying particularly such misrepresentation, default or breachbreach (a "Seller's Default" or a "TNMP's Default");
(4) by mutual agreement of Seller, TOPIII TNMP and Purchaser;
(5) by Seller, TOPIII TNMP or Purchaser if the Closing has not occurred on or before June 16September 30, 2006 2002 because any condition precedent set forth in Article 6 or Article 7 7, other than the condition set forth in Section 6.5 regarding obtaining the Eligible Facility Determination and regarding obtaining exempt wholesale generator status for Purchaser has not been waived or satisfied (but with respect to the conditions relating to the deliverables set forth in Sections 6.6, 6.7, 7.6, 7.11, in clauses (a) and (c) through (j) of Schedule 6.8 “"Closing Deliveries By Seller and TOPIIITNMP,” " and in clauses (a) through (g), (i) and (j) of Schedule 7.8 “"Closing Deliveries By Purchaser,” ", such conditions are capable of being satisfied by delivery of the applicable agreement, certificate, document or opinion if the Closing were to have occurred on June 16September 30, 2006)2002 but for the conditions set forth in Section 6.5 regarding obtaining the Eligible Facility Determination and regarding obtaining exempt wholesale generator status for Purchaser not being satisfied as of September 30, 2002) by the applicable Party; provided that the right to terminate this Agreement under this Section 9.14(a)(5) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the direct cause of, or directly resulted in, the failure to satisfy the relevant condition precedent on or before June 16September 30, 20062002;
(6) by Seller, TNMP or Purchaser if the Closing has not occurred on or before October 31, 2002 because the condition precedent set forth in Section 6.5 regarding obtaining the Eligible Facility Determination has not been satisfied by Seller and TNMP or waived by Purchaser and the condition precedent set forth in Section 6.5 regarding obtaining exempt wholesale generator status for Purchaser has not been satisfied or waived by Purchaser and all other conditions precedent set forth in Article 6 or Article 7 have been waived or satisfied by the applicable Party; provided that the right to terminate this Agreement under this Section 9.14(a)(6) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the direct cause of, or directly resulted in, the failure to satisfy that condition precedent on or before October 31, 2002;
(7) except as otherwise provided in this Agreement, by Purchaser if any Seller's Required Consents and TNMP's Required Consents shall not have been obtained or shall have been obtained but in form and substance not reasonably satisfactory to Purchaser;
(8) by Seller or TNMP, if any of Seller's Required Consents or TNMP's Required Consents, the receipt of which is a condition to the obligation of Seller or TNMP to consummate the Closing, shall have been denied; or
(9) by Purchaser if there shall have occurred a Material Adverse Effect.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Texas New Mexico Power Co)
Rights to Terminate. This Agreement may, by written notice ------------------- given on or prior to the Closing Date, in the manner provided in Section 9.12 “11.9 ------------ (Notices,” ), be terminated at any time prior to the Closing Date:
(1a) by Seller, TOPIII or Purchaser if (A) any Governmental Authority shall have issued an Order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and such Order, judgment or decree shall have become final and appealable or (B) any statute, rule, Order or regulation shall have been enacted or issued by any Governmental Authority which, directly or indirectly, prohibits the consummation of the Closing;
(2) by Seller or TOPIII ComEd if there has been a material misrepresentation as of the Effective Date breach by Purchaser with respect to any of Purchaser’s 's agreements, representations and warranties in this Agreement or a material default or breach by Purchaser with respect to the due and timely performance of any of Purchaser’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, Confidentiality Agreement and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten within sixty (1060) days after receipt by Purchaser of written notice specifying particularly such misrepresentationbreach; provided, default or however, that if such breach cannot reasonably be cured within sixty (60) days and Purchaser has promptly commenced and is diligently proceeding to cure such breach, this Agreement may not be terminated pursuant to this subsection (a);
(3b) by Purchaser if there has been a material misrepresentation as of the Effective Date breach by ComEd with respect to Seller’s or TOPIII’s ComEd's agreements, representations and warranties in this Agreement or a material default or breach by Seller or TOPIII with respect to the due and timely performance of any of Seller’s or TOPIII’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten within sixty (1060) days after receipt by Seller or TOPIII ComEd of written notice specifying particularly such misrepresentationbreach; provided, default or however, that if such breach cannot reasonably be cured within sixty (60) days and ComEd has promptly commenced and is diligently proceeding to cure such breach, this Agreement may not be terminated pursuant to this subsection (b);
(4c) by mutual agreement ComEd or Purchaser if (i) any Governmental Authority, the consent or approval of Sellerwhich is a condition to the obligations of the Parties to consummate the Closing, TOPIII shall have determined not to grant its consent or approval and Purchaserall rehearings and appeals of such determination shall have been taken and have been unsuccessful or (ii) a court of competent jurisdiction shall have issued an order or injunction permanently restraining or otherwise prohibiting the Closing, and such order or injunction shall have become final and nonappealable;
(5d) by SellerComEd on thirty (30) days' written notice given within thirty (30) days after the Illinois Authority, TOPIII if ComEd in its reasonable discretion does not accept one or more of the terms and conditions of such Illinois Authority;
(e) by ComEd or Purchaser if the Closing has contemplated hereby shall have not occurred on or before June 16, 2006 because any condition precedent set forth in Article 6 or Article 7 has not been waived or satisfied (but with respect to the conditions relating to the deliverables set forth in Sections 6.6, 6.7, 7.6, 7.11, in clauses (a) and (c) through (j) of Schedule 6.8 “Closing Deliveries By Seller and TOPIII,” and in clauses (a) through (g), (i) and of Schedule 7.8 “Closing Deliveries By Purchaser,” such conditions are capable of being satisfied by delivery first anniversary of the applicable agreement, certificate, document or opinion if date of this Agreement (the Closing were to have occurred on June 16, 2006"TERMINATION DATE"); provided that the right to terminate this Agreement under this Section 9.14(a)(510.1(e) (Rights to Terminate) shall not --------------- be available to any Party party whose failure to fulfill any obligation under this Agreement has been the direct cause of, or directly resulted in, the failure of the Closing to satisfy the relevant condition precedent occur on or before June 16such date; and provided, 2006;further, that if on -------- ------- the first anniversary of the date of this Agreement the conditions to the Closing set forth in Section 7.3 (Purchaser's Receipt of Approvals of ----------- Governmental Authorities), Section 7.7 (HSR Act), Section 8.2 (ComEd's ----------- Receipt of Approvals of Governmental Authorities) or Section 8.6 (HSR Act) ----------- shall not have been fulfilled but all other conditions to the Closing shall be fulfilled or shall be capable of being fulfilled, then the Termination Date shall be the day which is eighteen months from the date of this Agreement; and provided, further, that notwithstanding anything contained -------- ------- herein to the contrary, in the event of an Event of Loss which ComEd elects to repair or replace pursuant to Section 5.16 (Casualty Loss), ComEd may ------------ extend the Termination Date for a period of up to twelve months from the date of the Event of Loss in order to repair or replace the damaged Asset in accordance with Section 5.16 (Casualty Loss); or ------------
(f) by mutual written agreement of ComEd and Purchaser.
Appears in 1 contract
Rights to Terminate. This Agreement may, by written notice given ------------------- on or prior to the Closing Date, in the manner provided in Section 9.12 “11.9 ------------ (Notices,” ), be terminated at any time prior to the Closing Date:
(1a) by Seller, TOPIII or Purchaser if (A) any Governmental Authority shall have issued an Order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and such Order, judgment or decree shall have become final and appealable or (B) any statute, rule, Order or regulation shall have been enacted or issued by any Governmental Authority which, directly or indirectly, prohibits the consummation of the Closing;
(2) by Seller or TOPIII ComEd if there has been a material misrepresentation as of the Effective Date breach by Purchaser with respect to any of Purchaser’s 's agreements, representations and warranties in this Agreement or a material default or breach by Purchaser with respect to the due and timely performance of any of Purchaser’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, Confidentiality Agreement and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten within sixty (1060) days after receipt by Purchaser of written notice specifying particularly such misrepresentationbreach; provided, default or however, that if such breach cannot reasonably be cured within sixty (60) days and Purchaser has promptly commenced and is diligently proceeding to cure such breach, this Agreement may not be terminated pursuant to this subsection (a);
(3b) by Purchaser if there has been a material misrepresentation as of the Effective Date breach by ComEd with respect to Seller’s or TOPIII’s ComEd's agreements, representations and warranties in this Agreement or a material default or breach by Seller or TOPIII with respect to the due and timely performance of any of Seller’s or TOPIII’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten within sixty (1060) days after receipt by Seller or TOPIII ComEd of written notice specifying particularly such misrepresentationbreach; provided, default or however, that if such breach cannot reasonably be cured within sixty (60) days and ComEd has promptly commenced and is diligently proceeding to cure such breach, this Agreement may not be terminated pursuant to this subsection (b);
(4c) by mutual agreement ComEd or Purchaser if (i) any Governmental Authority, the consent or approval of Sellerwhich is a condition to the obligations of the Parties to consummate the Closing, TOPIII shall have determined not to grant its consent or approval and Purchaserall rehearings and appeals of such determination shall have been taken and have been unsuccssful or (ii) a court of competent jurisdiction shall have issued an order or injunction permanently restraining or otherwise prohibiting the Closing, and such order or injunction shall have become final and nonappealable;
(5d) by SellerComEd on thirty (30) days' written notice given within thirty (30) days after the Illinois Authority, TOPIII if ComEd in its reasonable discretion does not accept one or more of the terms and conditions of such Illinois Authority;
(e) by ComEd or Purchaser if the Closing has contemplated hereby shall have not occurred on or before June 16, 2006 because any condition precedent set forth in Article 6 or Article 7 has not been waived or satisfied (but with respect to the conditions relating to the deliverables set forth in Sections 6.6, 6.7, 7.6, 7.11, in clauses (a) and (c) through (j) of Schedule 6.8 “Closing Deliveries By Seller and TOPIII,” and in clauses (a) through (g), (i) and of Schedule 7.8 “Closing Deliveries By Purchaser,” such conditions are capable of being satisfied by delivery first anniversary of the applicable agreement, certificate, document or opinion if date of this Agreement (the Closing were to have occurred on June 16, 2006"Termination Date"); provided that the right to terminate this Agreement under this Section 9.14(a)(510.1(e) (Rights to Terminate) shall not --------------- be available to any Party party whose failure to fulfill any obligation under this Agreement has been the direct cause of, or directly resulted in, . the failure of the Closing to satisfy the relevant condition precedent occur on or before June 16such date; and provided, 2006;further, that if on -------- ------- the first anniversary of the date of this Agreement the conditions to the Closing set forth in Section 7.3 (Purchaser's Receipt of Approvals of ----------- Governmental Authorities), Section 7.7 (HSR Act), Section 8.2 (ComEd's ----------- Receipt of Approvals of Governmental Authorities) or Section 8.6 (HSR Act) ----------- shall not have been fulfilled but all other conditions to the Closing shall be fulfilled or shall be capable of being fulfilled, then the Termination Date shall be the day which is eighteen months from the date of this Agreement; and provided, further, that notwithstanding anything contained -------- ------- herein to the contrary, in the event of an Event of Loss which ComEd elects to repair or replace pursuant to Section 5.16 (Casualty Loss), ComEd may ------------ extend the Termination Date for a period of up to twelve months from the date of the Event of Loss in order to repair or replace the damaged Asset in accordance with Section 5.16 (Casualty Loss); or ------------
(f) by mutual written agreement of ComEd and Purchaser.
Appears in 1 contract
Rights to Terminate. This Agreement Agreement, or to the extent specifically permitted herein a portion thereof, may, by written notice given on or prior to the Closing Date, in the manner provided in Section 9.12 “Notices,” 11.11, be terminated at any time prior to the Closing Date:Date (or such other date as may be set forth below):
(1) by Seller, TOPIII or Purchaser if (A) any Governmental Authority shall have issued an Order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and such Order, judgment or decree shall have become final and appealable or (B) any statute, rule, Order or regulation shall have been enacted or issued by any Governmental Authority which, directly or indirectly, prohibits the consummation of the Closing;
(2a) by Seller or TOPIII if there has been a material misrepresentation as of the Effective Date with respect to any of Purchaser’s representations and warranties in this Agreement by Purchaser or a material default or breach by Purchaser with respect to the due and timely performance of any of Purchaser’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, ; default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten thirty (1030) days after receipt by Purchaser Purchaser, of written notice specifying particularly such misrepresentation, default or breach;
(3b) by Purchaser if there has been a material misrepresentation as of the Effective Date with respect to Seller’s or TOPIII’s representations and warranties in this Agreement by Seller or a material default or breach by Seller or TOPIII with respect to the due and timely performance of any of Seller’s or TOPIII’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date Date, or the date ten thirty (1030) days after receipt by Seller or TOPIII of written notice specifying particularly such misrepresentation, default or breach;
(4c) by Purchaser or Seller if (i) the Coordinating Committee of Facilities Owners (other than Seller) shall have voted irrevocably on or prior to July 6, 2016 to permanently cease operation of the Facilities, and (ii) the operation of the Facilities shall have permanently ceased on or prior to July 6, 2016;
(d) by Purchaser or Seller, if a permanent injunction or other order or decree by any federal or state court or Governmental Authority is issued which prevents the consummation of the transactions or if a Law shall have been enacted by any state or federal government or Governmental Authority in the United States which prohibits the consummation of the transactions; or
(e) by mutual agreement of Seller, TOPIII Seller and Purchaser;
(5) by Seller, TOPIII or Purchaser if the Closing has not occurred on or before June 16, 2006 because any condition precedent set forth in Article 6 or Article 7 has not been waived or satisfied (but with respect to the conditions relating to the deliverables set forth in Sections 6.6, 6.7, 7.6, 7.11, in clauses (a) and (c) through (j) of Schedule 6.8 “Closing Deliveries By Seller and TOPIII,” and in clauses (a) through (g), (i) and of Schedule 7.8 “Closing Deliveries By Purchaser,” such conditions are capable of being satisfied by delivery of the applicable agreement, certificate, document or opinion if the Closing were to have occurred on June 16, 2006); provided that the right to terminate this Agreement under this Section 9.14(a)(5) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the direct cause of, or directly resulted in, the failure to satisfy the relevant condition precedent on or before June 16, 2006;.
Appears in 1 contract
Sources: Purchase and Sale Agreement (El Paso Electric Co /Tx/)
Rights to Terminate. This Agreement Agreement, or to the extent specifically permitted herein a portion thereof, may, by written notice given on or prior to the Closing Date, in the manner provided in Section 9.12 “Notices,” 11.10, be terminated at any time prior to the Closing Date:Date (or such other date as may be set forth below):
(1) by Seller, TOPIII or Purchaser if (A) any Governmental Authority shall have issued an Order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and such Order, judgment or decree shall have become final and appealable or (B) any statute, rule, Order or regulation shall have been enacted or issued by any Governmental Authority which, directly or indirectly, prohibits the consummation of the Closing;
(2a) by Seller or TOPIII if there has been a material misrepresentation as of the Effective Date with respect to any of Purchaser’s representations and warranties in this Agreement (without giving effect to materiality, Material Adverse Effect, or similar phrases in such representations and warranties) that would result in a Material Adverse Effect, or a material default or breach by Purchaser with respect to the due and timely performance of any of Purchaser’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, ; default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten thirty (1030) days after receipt by Purchaser Purchaser, of written notice specifying particularly such misrepresentation, default or breach;
(3b) by Purchaser if there has been a material misrepresentation as of the Effective Date with respect to Seller’s or TOPIII’s representations and warranties in this Agreement (without giving effect to materiality, Material Adverse Effect, or similar phrases in such representations and warranties) that would result in a Material Adverse Effect, or a material default or breach by Seller or TOPIII with respect to the due and timely performance of any of Seller’s or TOPIII’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date Date, or the date ten thirty (1030) days after receipt by Seller or TOPIII of written notice specifying particularly such misrepresentation, default or breach;
(4c) by Purchaser if Purchaser is not at the time of termination in breach of this Agreement, upon written notice to Seller, (i) if any of Purchaser’s Required Regulatory Approvals shall have been denied (and a petition for rehearing or refiling of an application initially denied without prejudice shall also have been denied), or shall have been granted but are not in form and substance reasonably satisfactory to Purchaser (including, adverse conditions relating to Purchaser or the Assets), or (ii) if the CPUC has not approved the transaction by March 31, 2012; provided that Purchaser may only exercise the termination right described in this clause (ii) prior to the time the CPUC approves the transaction;
(d) by Seller if Seller is not at the time of termination in breach of this Agreement, upon written notice to Purchaser, if any of the Seller’s Required Regulatory Approvals shall have been denied (and a petition for rehearing or refiling of an application initially denied without prejudice shall also have been denied), or shall have been granted but are not in form and substance reasonably satisfactory to Seller (including adverse conditions relating to Seller or the Assets);
(e) by Purchaser in accordance with Section 6.6;
(f) by mutual agreement of Seller, TOPIII Seller and Purchaser;; or
(5g) by Seller, TOPIII Seller or Purchaser if the conditions to such Party’s Closing has have not occurred on or before June 16by December 31, 2006 because any condition precedent set forth in Article 6 or Article 7 has not been waived or satisfied (but with respect to 2012, unless the conditions relating to the deliverables set forth in Sections 6.6, 6.7, 7.6, 7.11, in clauses (a) and (c) through (j) of Schedule 6.8 “Closing Deliveries By Seller and TOPIII,” and in clauses (a) through (g), (i) and of Schedule 7.8 “Closing Deliveries By Purchaser,” such conditions are capable of being satisfied by delivery of the applicable agreement, certificate, document or opinion if the Closing were to have occurred on June 16, 2006); provided that the right Party seeking to terminate is then in breach of this Agreement under this Section 9.14(a)(5) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the direct cause of, or directly resulted in, the failure to satisfy the relevant condition precedent on or before June 16, 2006;Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pinnacle West Capital Corp)
Rights to Terminate. This In addition to the other rights of the parties hereto, this Agreement may, by written notice given on or prior to the Closing Date, in the manner provided in Section 9.12 “Notices,” 9.10, be terminated at any time prior to the Closing Date:
(1) by Seller, TOPIII or Purchaser if (A) any Governmental Authority shall have issued an Order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and such Order, judgment or decree shall have become final and appealable or (B) any statute, rule, Order or regulation shall have been enacted or issued by any Governmental Authority which, directly or indirectly, prohibits the consummation of the Closing;
(2) by Seller or TOPIII if there has been a material misrepresentation as of the Effective Date or a material default or material breach by Purchaser with respect to any of Purchaser’s representations and warranties in this Agreement or a material default in any Related Agreement or breach by Purchaser with respect to the due and timely performance of any of Purchaser’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten thirty (1030) days after receipt by Purchaser of written notice specifying particularly such misrepresentation, default or breach;
(32) by Purchaser if there has been a material misrepresentation as of the Effective Date or a material default or breach by Seller with respect to Seller’s or TOPIII’s representations and warranties in this Agreement or a material default in any Related Agreement or breach by Seller or TOPIII with respect to the due and timely performance of any of Seller’s or TOPIII’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten thirty (1030) days after receipt by Seller or TOPIII of written notice specifying particularly such misrepresentation, default or breach;
(3) by Seller on thirty (30) days’ written notice if Purchaser shall not have received all Purchaser Required Consents by the date which is six (6) months after the Effective Date or Purchaser has not waived such consents;
(4) by mutual agreement of Seller, TOPIII and PurchaserPurchaser in accordance with Section 5.11;
(5) by Seller, TOPIII mutual agreement of Seller and Purchaser; or
(6) by Seller or Purchaser if the Closing has not occurred on or before June 16, 2006 because any condition precedent set forth in Article 6 or Article 7 has not been waived or satisfied (but with respect to the conditions relating to the deliverables set forth in Sections 6.6, 6.7, 7.6, 7.11, in clauses (a) and (c) through (j) of Schedule 6.8 “Closing Deliveries By Seller and TOPIII,” and in clauses (a) through (g), (i) and of Schedule 7.8 “Closing Deliveries By Purchaser,” such conditions are capable of being satisfied by delivery of the applicable agreement, certificate, document or opinion if the Closing were to have occurred on June 16September 30, 2006); provided that the right to terminate this Agreement under this Section 9.14(a)(5) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the direct cause of, or directly resulted in, the failure to satisfy the relevant condition precedent on or before June 16, 2006;.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ridgewood Electric Power Trust I)
Rights to Terminate. This Agreement Agreement, or to the extent specifically permitted herein a portion thereof, may, by written notice given on or prior to the Closing Date, in the manner provided in Section 9.12 “Notices,” 11.11, be terminated at any time prior to the Closing Date:Date (or such other date as may be set forth below):
(1) by Seller, TOPIII or Purchaser if (A) any Governmental Authority shall have issued an Order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and such Order, judgment or decree shall have become final and appealable or (B) any statute, rule, Order or regulation shall have been enacted or issued by any Governmental Authority which, directly or indirectly, prohibits the consummation of the Closing;
(2a) by Seller or TOPIII if there has been a material misrepresentation as of the Effective Date with respect to any of Purchaser’s representations and warranties in this Agreement by Purchaser or a material default or breach by Purchaser with respect to the due and timely performance of any of Purchaser’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, ; default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten thirty (1030) days after receipt by Purchaser Purchaser, of written notice specifying particularly such misrepresentation, default or breach;
(3b) by Purchaser if there has been a material misrepresentation as of the Effective Date with respect to Seller’s or TOPIII’s representations and warranties in this Agreement by Seller or a material default or breach by Seller or TOPIII with respect to the due and timely performance of any of Seller’s or TOPIII’s covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date Date, or the date ten thirty (1030) days after receipt by Seller or TOPIII of written notice specifying particularly such misrepresentation, default or breach;
(4c) by mutual agreement of Purchaser or Seller, TOPIII and Purchaserif a permanent injunction or other order or decree by any federal or state court or Governmental Authority is issued which prevents the consummation of the transactions or if a Law shall have been enacted by any state or federal government or Governmental Authority in the United States which prohibits the consummation of the transactions;
(5d) by Seller, TOPIII Purchaser or Purchaser Seller if the Closing has not occurred on or before June 16, 2006 because any condition precedent set forth in Article 6 or Article 7 has not been waived or satisfied (but with respect to by a date that is the conditions relating to the deliverables set forth in Sections 6.6, 6.7, 7.6, 7.11, in clauses (a) and (c) through (j) later of Schedule 6.8 “Closing Deliveries By Seller and TOPIII,” and in clauses (a) through (g), (i) ninety (90) days after the Execution Date, or (ii) the receipt of a final and of Schedule 7.8 “Closing Deliveries By Purchaser,” such conditions are capable of being satisfied by delivery non-appealable FERC order resolving the application for authorization of the applicable agreementtransaction contemplated by this Agreement, certificateprovided that such final order is received no later than June 30, document 2019, or opinion if such other date as mutually agreed in writing by the Closing were to have occurred on June 16Parties, 2006)which agreement shall not be unreasonably withheld; provided that no Party then in default shall have the right to terminate this Agreement under this Section 9.14(a)(510.1(d); or
(e) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the direct cause of, or directly resulted in, the failure to satisfy the relevant condition precedent on or before June 16, 2006;by mutual agreement of Seller and Purchaser.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Arizona Public Service Co)
Rights to Terminate. This Agreement may, may be terminated and the transactions contemplated hereby may be abandoned at any time before the Closing by prompt written notice given on or prior to the Closing Date, in the manner provided in accordance with Section 9.12 “Notices,” be terminated 19.01:
(a) by mutual written instrument signed by Buyer and Seller;
(b) at any time prior after June 30, 2003 by either Buyer or Seller, if the Closing shall not have occurred on or before such date and such failure to consummate is not caused by a breach of this Agreement by the terminating party (or its Affiliates);
(c) by Buyer, upon a material breach of any representation, warranty or covenant on the part of any of the Seller Parties set forth herein (as determined in accordance with Section 14.07 herein), if such breach is not cured to the Closing Date:satisfaction of Buyer (in its sole and absolute discretion) within fifteen (15) days after delivery of a written notice from Buyer to the Seller Parties specifically describing such breach, or if any representation or warranty of any of the Seller Parties shall have become untrue, in either case such that the conditions set forth in Sections 10.01 through 10.04 would not be satisfied (a "Terminating Seller Event");
(1d) by Seller, TOPIII or Purchaser if (A) any Governmental Authority shall have issued an Order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and such Order, judgment or decree shall have become final and appealable or (B) any statute, rule, Order or regulation shall have been enacted or issued by any Governmental Authority which, directly or indirectly, prohibits the consummation of the Closing;
(2) by Seller or TOPIII if there has been upon a material misrepresentation as of the Effective Date with respect to any of Purchaser’s representations and warranties in this Agreement or a material default or breach by Purchaser with respect to the due and timely performance of any representation, warranty or covenant on the part of Purchaser’s covenants and agreements contained in this Agreement Buyer or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and Parent set forth herein if such misrepresentation, default or breach is not cured or waived in writing by to the earlier satisfaction of the Closing Date or the date ten Seller Parties (10in their sole and absolute discretion) within fifteen (15) days after receipt by Purchaser delivery of a written notice specifying particularly such misrepresentation, default or breach;
(3) by Purchaser if there has been a material misrepresentation as of from the Effective Date with respect to Seller’s or TOPIII’s representations and warranties in this Agreement or a material default or breach by Seller or TOPIII with respect Parties to the due and timely performance Buyer Parties specifically describing such breach or if any representation or warranty of any of Seller’s Buyer or TOPIII’s covenants and agreements contained Parent shall have become untrue, in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in case such that the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten (10) days after receipt by Seller or TOPIII of written notice specifying particularly such misrepresentation, default or breach;
(4) by mutual agreement of Seller, TOPIII and Purchaser;
(5) by Seller, TOPIII or Purchaser if the Closing has not occurred on or before June 16, 2006 because any condition precedent conditions set forth in Article 6 Section 11.01 or Article 7 has 11.02 would not been waived or be satisfied (but with respect to the conditions relating to the deliverables set forth in Sections 6.6, 6.7, 7.6, 7.11, in clauses (a) and (c) through (j) of Schedule 6.8 “Closing Deliveries By Seller and TOPIII,” and in clauses (a) through (ga "Terminating Buyer Event"), (i) and of Schedule 7.8 “Closing Deliveries By Purchaser,” such conditions are capable of being satisfied by delivery of the applicable agreement, certificate, document or opinion if the Closing were to have occurred on June 16, 2006); provided that the right to terminate this Agreement under this Section 9.14(a)(5) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the direct cause of, or directly resulted in, the failure to satisfy the relevant condition precedent on or before June 16, 2006;.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cross Country Healthcare Inc)
Rights to Terminate. This Agreement Agreement, or to the extent specifically permitted herein a portion thereof, may, by written notice given on or prior to the Closing Date, in the manner provided in Section 9.12 “SECTION 11.10 "Notices,” " be terminated at any time prior to the Closing Date:
(1) by Seller, TOPIII or Purchaser if (A) any Governmental Authority shall have issued an Order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and such Order, judgment or decree shall have become final and appealable or (B) any statute, rule, Order or regulation shall have been enacted or issued by any Governmental Authority which, directly or indirectly, prohibits the consummation of the Closing;
(2a) by Seller or TOPIII if there has been a material misrepresentation as of the Effective Date with respect to any of Purchaser’s representations and warranties in this Agreement or a material default or breach by Purchaser with respect to Purchaser's representations and warranties in this Agreement or the due and timely performance of any of Purchaser’s 's covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten thirty (1030) days after receipt by Purchaser of written notice specifying particularly such misrepresentation, default or breach;
(3b) by Purchaser if there has been a material misrepresentation as of the Effective Date with respect to Seller’s or TOPIII’s representations and warranties in this Agreement or a material default or breach by Seller or TOPIII with respect to Seller's representations and warranties in this Agreement or the due and timely performance of any of Seller’s or TOPIII’s 's covenants and agreements contained in this Agreement or in any Related Agreement, which misrepresentation, default or breach, either individually or in the aggregate, has had, or is reasonably likely to have, a Material Adverse Effect, and such misrepresentation, default or breach is not cured or waived in writing by the earlier of the Closing Date or the date ten thirty (1030) days after receipt by Seller or TOPIII of written notice specifying particularly such misrepresentation, default or breach;
(4c) by Purchaser, upon written notice to Seller, if any of the Purchaser's Required Regulatory Approvals shall have been denied (and a petition for rehearing or refiling of an application initially denied without prejudice shall also have been denied), and such denial was not caused by or the result of a breach of this Agreement by Purchaser, or if the Purchaser's Required Regulatory Approvals shall have been granted but are not in form and substance reasonably satisfactory to Purchaser (including adverse conditions relating to Purchaser or the Assets);
(d) by Seller, upon written notice to Purchaser, if any of the Seller's Required Regulatory Approvals shall have been denied (and a petition for rehearing or refiling of an application initially denied without prejudice shall also have been denied), and such denial was not caused by or the result of a breach of this Agreement by Seller, or shall have been granted but are not in form and substance reasonably satisfactory to Seller (including adverse conditions relating to Seller or the Assets);
(e) by Purchaser in accordance with SECTION 6.7 "Risk of Loss";
(f) by mutual agreement of Seller, TOPIII Seller and Purchaser;; or
(5g) subject to SECTION 6.13(b)(iii), by Seller, TOPIII Seller or Purchaser if the conditions to such Party's Closing has have not occurred on by December 31, 2001, or before June 16if the conditions of the terminating Party for Closing cannot reasonably be met by such date, 2006 because any unless the reason for the failure of condition precedent set forth in Article 6 or Article 7 has not been waived or satisfied (but with respect to this SECTION 10.1(G) is the conditions relating to the deliverables set forth in Sections 6.6, 6.7, 7.6, 7.11, in clauses (a) and (c) through (j) of Schedule 6.8 “Closing Deliveries By Seller and TOPIII,” and in clauses (a) through (g), (i) and of Schedule 7.8 “Closing Deliveries By Purchaser,” such conditions are capable of being satisfied by delivery result of the applicable agreement, certificate, document or opinion if the Closing were to have occurred on June 16, 2006); provided that the right to terminate material breach of this Agreement under this Section 9.14(a)(5) shall not be available by the Party seeking to any Party whose failure to fulfill any obligation under this Agreement has been the direct cause of, or directly resulted in, the failure to satisfy the relevant condition precedent on or before June 16, 2006;terminate.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pinnacle West Capital Corp)