Conditions Precedent to Obligations of Parent and Merger Subsidiary. The obligations of Parent to consummate the Merger are subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions precedent: (a) there shall have occurred no material adverse change in the business, financial condition or results of operations of the Company Group from the date hereof to the Effective Time; (b) the representations and warranties of the Company contained in Article V shall be true and correct in all respects (as to representations and warranties qualified or limited by the term "Material Adverse Effect," the word "material," or phrases of like import), and in all material respects (as to representations and warranties not so limited or qualified) when made and at and as of the Effective Time with the same force and effect as if those representations and warranties had been made at and as of such time except (i) to the extent such representations and warranties speak as of a specified earlier date, and (ii) as otherwise contemplated or permitted by this Agreement; (c) The Company shall, in all material respects, have performed all obligations and complied with all covenants necessary to be performed or complied with by it on or before the Effective Time; (d) Parent shall have received a certificate of the President or any Vice President of the Company, in form satisfactory to counsel for Parent, certifying fulfillment of the matters referred to in paragraphs ((a)) through ((c)) of this Section 7.3; (e) all proceedings, corporate or other, to be taken by the Company in connection with the transactions contemplated by this Agreement, and all documents incident thereto, shall be reasonably satisfactory in form and substance to Parent and Parent's counsel, and the Company shall have made available to Parent for examination the originals or true and correct copies of all documents that Parent may reasonably request in connection with the transactions contemplated by this Agreement; (f) the holders of not more than 10% of the shares of Company Common Stock entitled to vote at the Special Meeting shall have provided written notice of their intent to demand payment pursuant to Section 13.1-733 of the VSCA; (g) Parent shall have received each of the accountants' letters contemplated by Section 6.10 hereof to be received by it; and (h) Parent shall be satisfied, in its sole and absolute discretion, with its due diligence investigation of the Company's business, financial condition, results of operations and prospects.
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Conditions Precedent to Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions precedent:
(a) there shall have occurred no material adverse change in the business, financial condition or results of operations of the Company Group from the date hereof to the Effective Time;
(b) the The representations and warranties of the Company contained set forth in Article V III and Article IV (other than the Fundamental Representations) shall be have been true and correct in all respects (as to representations and warranties qualified or limited ignoring for the purposes of this Section 8.2(a) any qualifications by the term "“Company Material Adverse Effect," ” or “materiality” contained in such representations or warranties) as of the word "material," or phrases date of like import), and in all material respects (as to representations and warranties not so limited or qualified) when made and at this Agreement and as of the Effective Time with the same force and effect as if those representations and warranties had been made at and as of such time Closing Date, except (i) to the extent that the failure of such representations and warranties speak as of to be true and correct does not constitute a specified earlier dateCompany Material Adverse Effect, and (ii) for those representations and warranties which expressly relate to an earlier date (in which case such representations and warranties shall have been true and correct in all respects as otherwise contemplated of such earlier date except to the extent that the failure of such representations and warranties to have been true and correct as of such earlier date did not constitute a Company Material Adverse Effect).
(b) The Fundamental Representations (other than the representations and warranties set forth in Section 3.3(b)) shall have been true and correct in all respects as of the date of this Agreement and as of the Closing Date, except for those representations and warranties which expressly relate to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date); and (ii) the representations and warranties set forth in Section 3.3(b), solely to the extent that they relate to any consent, waiver, approval or permitted authorization of, or filing with, or notification to, any Person required by any Contract to be made by any Acquired Company in connection with the execution and delivery of this Agreement;Agreement or the Company Documents shall have been true and correct in all respects as of the date of this Agreement and as of the Closing Date, except for such consents, waivers, approvals, authorizations, filings or notifications which the failure to obtain or make would not reasonably be expected to be material to the Acquired Companies, taken as a whole.
(c) The Each of the covenants, agreements and obligations of the Company shall, or the Company Shareholder to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects, have performed all obligations and complied with all covenants necessary to be performed or complied with by it on respects at or before the Effective Time;.
(d) The Parent shall have received a certificate of be satisfied with the President or any Vice President of the Company, in form satisfactory to counsel for Parent, certifying fulfillment of the matters referred to in paragraphs ((a)) through ((c)) terms and conditions of this Section 7.3;Agreement, and the other Transaction Documents.
(e) all proceedings, corporate or other, to be taken by the Company in connection with the transactions contemplated by this Agreement, and all documents incident thereto, shall be reasonably satisfactory in form and substance to Parent and Parent's counsel, and the Company shall have made available to Parent for examination the originals or true and correct copies of all documents that Parent may reasonably request in connection with the transactions contemplated by this Agreement;
(f) the holders of not more than 10% of the shares of Company Common Stock entitled to vote at the Special Meeting shall have provided written notice of their intent to demand payment pursuant to Section 13.1-733 of the VSCA;
(g) Parent shall have received each of the accountants' letters contemplated by Section 6.10 hereof to be received by it; and
(h) The Parent shall be satisfied, in its sole and absolute discretion, satisfied with the results of its due diligence investigation of the Acquired Companies, including their corporate and legal structure and capitalization of each Acquired Company's business, financial conditionand the terms and conditions of the Material Contracts and of such Acquired Company.
(f) Since the date of this Agreement, results no Company Material Adverse Effect shall have occurred.
(g) The Company Shareholder shall have delivered to the Parent a certificate of operations the Company Shareholder, dated as of the Closing Date, stating that the conditions specified in Section 8.2(a), Section 8.2(b), Section 8.2(c), and prospectsSection 8.2(f) have been satisfied.
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Conditions Precedent to Obligations of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction or waiver in writing at or prior to the Effective Time of the following conditions precedent:
(a) there shall have occurred no material adverse change in the business, financial condition or results of operations of the Company Group from the date hereof to the Effective Time;
(b) the representations and warranties of the Company WPZ contained in Article V herein, ignoring for purposes of considering satisfaction of this condition any exception or qualification as to materiality or Material Adverse Effect, shall be true and correct in all respects (as to representations and warranties qualified or limited by the term "Material Adverse Effect," the word "material," or phrases of like import), and in all material respects (as to representations and warranties not so limited or qualified) when made and at and as of the Effective Time Closing with the same force and effect as if those representations and warranties had been made at and as of such time (except (i) to the extent such representations and warranties speak as of a specified earlier date, in which event such representations and warranties must be true and correct as of such specified date), except where the failure to be so true and correct is not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect on the WPZ Companies, taken as a whole, Parent, or their respective abilities to consummate the Merger; and
(iib) each of the representations and warranties of WPZ contained in SECTIONS 6.2, 6.15, 6.16 and 6.20 shall be true and correct when made and at and as otherwise contemplated or permitted by this Agreement;of the Closing with the same force and effect as if those representations and warranties had been made at and as of such time.
(c) The Company shall, in all material respects, WPZ shall have performed all obligations and complied with all covenants necessary to be performed or complied with by it on or before the Effective Time;consummation of the Merger.
(d) Since December 31, 2000, there shall have been no Material Adverse Effect with respect to the WPZ Companies, taken as a whole, or any event, change, occurrence, effect, fact circumstance or condition which could reasonably be expected to have a Material Adverse Effect with respect to the WPZ Companies, taken as a whole.
(e) Parent and Merger Subsidiary shall have obtained the financing proceeds contemplated by the Commitment Letters on the terms and conditions set forth in the Commitment Letters and the term sheets and schedules attached thereto or if such financing cannot be effected without modification of the terms and conditions, on terms which are not materially less favorable to Parent and Merger Subsidiary.
(f) WPZ shall have received a certificate payoff letter from Bank of America, N.A., in the form annexed as EXHIBIT 8.3(n) hereto, and shall have received releases of all liens, claims, encumbrances or security interests with respect to any Funded Debt being repaid or refinanced on or prior to the Effective Time; (it being understood that all indebtedness under that certain Amended and Restated Loan Agreement dated as of March 30, 2000, by and among WPZ, those certain financial institutions whose names appear on the signature page thereof and Bank of America, N.A., as Administrative Agent (the "Credit Agreement") will be repaid with the proceeds of Parent's financing in connection with the Closing).
(g) [INTENTIONALLY LEFT BLANK].
(h) Parent and Merger Subsidiary shall have received from ▇▇▇▇▇▇▇ Berlin Shereff ▇▇▇▇▇▇▇▇, LLP, counsel for the WPZ Companies, an opinion with respect to the matters set forth in EXHIBIT 8.3(h) attached hereto, which shall be addressed to Parent and Merger Subsidiary, dated as of the President Closing Date.
(i) No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Vice President statute, rule, regulation, executive order, decree, injunction or other order which is in effect and which (i) materially restricts, prevents or prohibits consummation of the Company, Merger or results in form satisfactory the obligation to counsel for Parent, certifying fulfillment pay damages as a result of the matters referred to in paragraphs ((a)) through ((c)) of this Section 7.3;
(e) all proceedings, corporate or other, to be taken by the Company in connection with the transactions contemplated by this Agreement in amounts that could have a Material Adverse Effect on Parent, (ii) prohibits or limits materially the ownership or operation by Parent, Merger Subsidiary or any of their Subsidiaries of all or any material portion of the business or assets of WPZ and its Subsidiaries taken as a whole or compels Parent, Merger Subsidiary, or any of their Subsidiaries to dispose of or hold separate all or any material portion of the business or assets of WPZ or any of its Subsidiaries, (iii) imposes material limitations on the ability of Parent, Merger Subsidiary or any other Subsidiary of Parent to acquire or hold, or to exercise effectively full rights of ownership of, any Shares, or (iv) requires divestitures by Parent, Merger Subsidiary or any other affiliate of Parent of any Shares.
(j) WPZ shall not have received notice that Dissenting Shareholders hold more than 15% of each class of capital stock entitled to approve the Merger.
(k) Parent and Merger Subsidiary shall have received a certificate, substantially in the form of EXHIBIT 8.3(k) attached hereto, of an officer of WPZ, dated the Closing Date, certifying as to the satisfaction of the conditions specified in SECTIONS 8.3(a)-(d), (f), (i), (j), (l) and (n).
(l) WPZ Expenses for which WPZ is liable shall not exceed $4,500,000 in the aggregate.
(m) WPZ shall have delivered copies of the resolutions adopted by WPZ's Board of Directors as required by Sections 3.6 and 4.5, along with a certification of an officer of WPZ that such resolutions are true, correct and complete and are in full force and effect as of the Closing.
(n) All of the following shall have occurred:
(i) the Convertible Debentures shall have been redeemed, effective as of the Closing, for an amount of cash equal to 109% of the principal amount thereof plus accrued but unpaid interest, which redemption shall be funded out of the proceeds of the Parent's financing;
(ii) the Other Options issued with respect to the Debentures (or one or more affidavits of loss) shall have been surrendered to WPZ for cancellation and canceled without additional consideration;
(iii) WPZ shall have obtained a full and unconditional and enforceable release covering any and all Claims (as defined in Section 12 of the Amendment Agreement) that exist or that in the future may exist, including without limitation, with respect to the Convertible Debentures, the Other Options issued with respect to the Debentures, that certain Amendment Agreement dated as of April 26, 2001 by and among WPZ, Halifax Fund, L.P., ▇▇▇▇▇▇▇ Associates, L.P., and all documents incident thereto▇▇▇▇▇▇▇ International, shall be reasonably satisfactory L.P. (the "Amendment Agreement") or the Transaction Documents (subject to the exceptions set forth in form Sections 12(a)(z) and substance to Parent and Parent's counsel, and 12(c) of the Company Amendment Agreement);
(iv) the holders of the Convertible Debentures shall have made available to Parent for examination received an opinion from an independent counsel or a payoff letter from WPZ's senior lender, in either case satisfying the originals or true and correct copies requirements of all documents that Parent may reasonably request in connection with Section 1(b)(iii) of the transactions contemplated by this Amendment Agreement;
(fv) either (x) the holders of not more than 10% Claim Conditions (as defined in Section 12 of the shares Amendment Agreement) shall not have been satisfied at any time on or before the Redemption Closing (as defined in Section 1(j) of Company Common Stock entitled to vote at the Special Meeting Amendment Agreement) or (y) the Claim Conditions are satisfied, but no litigation shall have provided written been commenced (other than litigation that has been finally settled in a manner acceptable to Parent and dismissed by stipulation or otherwise with prejudice) prior to the Redemption Closing thereof and no notice is given of their intent to demand payment any Claims (as defined in Section 12 of the Amendment Agreement) pursuant to the terms of Section 13.1-733 12(a) (subject to the exceptions set forth in Sections 12(a)(z) and 12(c) of the VSCA;
(g) Parent shall have received each of the accountants' letters contemplated by Section 6.10 hereof to be received by itAmendment Agreement); and
(hvi) Parent there shall be satisfied, in its sole and absolute discretion, with its due diligence investigation have been no reset of the Company's business, financial condition, results conversion price of operations and prospectsthe Convertible Debentures to a price below $3.875.
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