Conditions Precedent to Obligations of the Purchaser. The obligations of Purchaser under this Agreement to consummate the transactions contemplated hereby to be consummated at the Closing shall be subject to the satisfaction, at or prior to the Closing, of all of the following conditions, any one or more of which may be waived in writing at the option of Purchaser in its sole discretion: (a) All representations and warranties of the Company and its Subsidiaries in this Agreement or in any exhibit, schedule or document delivered pursuant hereto shall be true, complete and correct in all respects (with respect to representations and warranties qualified or limited by materiality or Material Adverse Effect) or in all material respects (with respect to representations and warranties not so qualified or limited), in each case when made and on and as of the Closing Date as if made on and as of the Closing Date, other than any such representations or warranties that expressly speak only as of an earlier date, which shall be true, complete and correct in all respects (with respect to representations and warranties qualified or limited by materiality or Material Adverse Effect) or in all material respects (with respect to representations and warranties not so qualified or limited), as of such earlier date. (b) All of the terms, covenants and conditions to be complied with and performed by the Company or its Subsidiaries on or prior to the Closing Date shall have been complied with or performed in all material respects. (c) Purchaser shall have received a certificate or certificates, dated as of the Closing Date, executed on behalf of the Company, by an authorized executive officer thereof, certifying in such detail as Purchaser may reasonably request that the conditions specified in this Section 5.1 have been fulfilled. (d) The waiting period under the HSR Act, Investment Canada Act, the Canadian Competition Act or any other applicable competition, merger, control, antitrust Law or similar Law shall have expired or terminated, and any other Governmental Authorities whose consent is required for consummation of the transactions contemplated hereby (including without limitation the applicable regulatory body of Canada or any province or other territorial unit thereof) shall have issued all Consents required for the transactions contemplated hereby, and no condition or requirement unacceptable to Purchaser in its sole discretion shall be imposed on or required of Purchaser or any of its Affiliates as a result of or as a condition to any of the foregoing. (e) All material Consents described on Schedule 2.5 shall have been obtained without any material limitation, restriction or condition not otherwise applicable to the Company or its Subsidiaries being imposed on Reorganized PSC or its Subsidiaries, to the extent the need for such consent is not overridden by Section 365 of the Bankruptcy Code or other applicable law. (f) No action, suit or proceeding (including, without limitation, any proceeding over which the U.S. Bankruptcy Court has jurisdiction under 28 U.S.C. (S) 157(b) and (c)) shall be pending or overtly threatened by or before any Governmental Authority or pending or overtly threatened by any other party to enjoin, restrain, prohibit or obtain substantial damages or significant equitable relief in respect of or related to any of the transactions contemplated by this Agreement, or that would be reasonably likely to prevent or make illegal the consummation of any transactions contemplated by this Agreement or that, if adversely determined, could be materially adverse to Reorganized PSC or any of its Subsidiaries or the Investment, and any such actions, suits or proceedings that have theretofore been brought and determined shall have become Final Orders. (g) There shall not be in effect any Law of any Governmental Authority of competent jurisdiction restraining, enjoining or otherwise preventing consummation of the transactions contemplated by this Agreement or the Bankruptcy Plan. (h) There shall not be in effect any strike, slowdown, work stoppage, labor action or lockout relating to the Company or any of its Subsidiaries. (i) No loss or modification of or limitation on any Accepted Contract, which results in a loss to the Company or any of its Subsidiaries in excess of $65,000,000 in the aggregate, shall have occurred since the date hereof without the written consent of Purchaser in its sole discretion, including without limitation any forfeiture, expiration without renewal, termination or other loss thereof. (j) The Bidding Procedures Order and the Icahn DIP Approval Order shall have each become a Final Order, the Confirmation Orders shall have been entered in form and substance reasonably satisfactory to Purchaser, and shall have become a Final Order, and any other orders of the Bankruptcy Courts with respect to this Agreement and 41 the transactions contemplated hereby shall be in form and substance reasonably satisfactory to Purchaser. (k) The assets of Reorganized PCS and its Subsidiaries shall not include any Excluded Assets, and all Phase I environmental assessments and additional unintrusive due diligence on Real Estate conducted by or on behalf of Purchaser shall have been completed with results reasonably satisfactory to Purchaser in its sole discretion that no material expenditures, other than as may be agreed to by the Purchaser in its sole discretion, shall be required to remediate or otherwise cure any actual or potential Environmental Claim. Provided that Purchaser receives the disclosure Schedules timely from the Company and its Subsidiaries, as contemplated by Exhibit E, and is able to obtain the access that it may reasonably request to complete its environmental surveys and due diligence, including without limitation as contemplated by Section 4.1, on or before August 15, 2003, Purchaser will provide the Company on such date with a schedule of assets that it desires to include as Excluded Assets (the "Excluded Asset Schedule"), together with a schedule of the maximum amount of material expenditures that Purchaser shall deem material for purposes of this Section 5.1(k) (the "Environmental Liability Schedule"). Except to the extent otherwise agreed to by Purchaser in the Excluded Asset Schedule, if the Company and its Subsidiaries are not permitted to abandon any property listed in the Excluded Asset Schedule, after using all reasonable efforts to do so, Purchaser shall have the right either to terminate this Agreement, or to remove the subject property from the Excluded Asset Schedule such that it shall no longer be deemed to be an Excluded Asset; provided, however, that nothing herein shall be deemed to modify the maximum amount of expenditures set forth in the Environmental Liability Schedule without the written consent of Purchaser, in its sole discretion. (l) No event, events or circumstance shall have occurred since the date of the initial Schedules delivered pursuant to Exhibit E which, independently or together with any other event, events or circumstance that have occurred or are reasonably likely to occur, have or are reasonably likely to have a Material Adverse Effect. (m) The issuance of the Shares under the Bankruptcy Plan shall be exempt from registration under the Securities Act of 1933, as amended. (n) The Company shall have executed and delivered the documents required to be executed and delivered by it pursuant to Section 1.6 hereof. (o) The Company shall have, and shall have caused each of the other U.S. Debtors, and each of the U.S. Debtors shall have, obtained (i) the modifications of the terms, conditions, wages, benefits or work rules of any Collective Bargaining Agreement, or (ii) the rejection of the Collective Bargaining Agreements, in each case as directed by Purchaser in accordance with Section 4.8(a) hereof, in form and substance satisfactory to Purchaser in its sole discretion. (p) The Company shall have provided Purchaser with evidence reasonably satisfactory to Purchaser that the total aggregate amount of Multiemployer Withdrawal Liability, (the calculation of which, for each multiemployer plan, shall be made as of each plan's last plan year end), shall not exceed the Maximum Permitted Multiemployer Withdrawal Liability Amount as of the Effective Date, and the Company and its Subsidiaries shall have rejected all single employer pension plans as contemplated by Section 4.8 and Section 4.10. (q) The transactions underlying the Canadian Restructuring shall have been completed substantially on the terms contemplated hereby, including without limitation, as set forth in Exhibit G, such that the effective date of the Canadian Restructuring may be scheduled to be contemporaneous with the effective date of the U.S. Plan. (r) The aggregate amount of all Exit Costs shall not exceed the Exit Cost Threshold.
Appears in 1 contract
Conditions Precedent to Obligations of the Purchaser. The obligations obligation of the Purchaser under this Agreement to consummate complete the transactions contemplated hereby to be consummated at the Closing hereunder shall be subject to the satisfactionsatisfaction of or compliance with, at or prior to before the ClosingClosing Date, of all each of the following conditions, any one or more conditions precedent (each of which is hereby acknowledged to be for the exclusive benefit of the Purchaser and may be waived in writing at by the option of Purchaser in its sole discretion:writing, in whole or in part, on or before the Closing Date):
(a) All representations the Purchaser shall on or before the Closing Date have received from the Corporation and the NP Vendors all other documents and instruments as the Purchaser may reasonably request for the purpose of effecting the Exchange in accordance with the terms of this Agreement;
(b) the representations, warranties and covenants of the Company Corporation and its Subsidiaries the NP Vendors made in or pursuant to this Agreement or in any exhibit, schedule or document delivered pursuant hereto shall be true, complete true and correct in all respects (with respect to representations and warranties qualified or limited by materiality or Material Adverse Effect) or in all material respects (as at the Closing Date and with respect to representations and warranties not so qualified or limited), in each case when the same effect as if made and on at and as of the Closing Date (except as if made on and as of the Closing Date, other than any such representations or warranties that expressly speak only as of an earlier date, which shall be true, complete and correct in all respects (with respect to representations and warranties qualified or limited by materiality or Material Adverse Effect) or in all material respects (with respect to representations and warranties not so qualified or limited), as of such earlier date.
(b) All of the terms, covenants and conditions to may be complied with and performed affected by the Company occurrence of events or its Subsidiaries on or prior to transactions expressly contemplated and permitted hereby that are not materially adverse and arise in the Closing Date shall have been complied with or performed in all material respects.
(cordinary course of business) and the Purchaser shall have received a certificate or certificates, of the Corporation and the NP Vendors dated as at the Closing Date in form satisfactory to the Purchaser’s solicitors, acting reasonably certifying the truth and correctness in all material respects of the representations, warranties and covenants of the Corporation and the NP Vendors set out in this Agreement;
(c) the Corporation and the NP Vendors shall have performed and complied with all agreements and conditions required by this Agreement to be performed and complied with by them prior to or on the Closing Date;
(d) at the Closing Date, executed on behalf there shall have been no material adverse change in the condition (financial or otherwise), properties, assets, liabilities, earnings, or business operations or prospects of the Company, by an authorized executive officer thereof, certifying in such detail as Purchaser may reasonably request Corporation or the Corporation’s Subsidiaries from that the conditions specified in this Section 5.1 have been fulfilled.
(d) The waiting period under the HSR Act, Investment Canada Act, the Canadian Competition Act or any other applicable competition, merger, control, antitrust Law or similar Law shall have expired or terminated, and any other Governmental Authorities whose consent is required for consummation of the transactions contemplated hereby (including without limitation the applicable regulatory body of Canada or any province or other territorial unit thereof) shall have issued all Consents required for the transactions contemplated hereby, and no condition or requirement unacceptable to Purchaser in its sole discretion shall be imposed shown on or required of Purchaser or any of its Affiliates as a result of or as a condition to any of reflected in the foregoing.Corporation’s Financial Statements;
(e) All material Consents described on Schedule 2.5 shall have been obtained without all consents, approvals, orders and authorizations of any material limitationPersons or governmental authorities in Canada or elsewhere (or registrations, restriction declarations, filings or condition not otherwise applicable to the Company or its Subsidiaries being imposed on Reorganized PSC or its Subsidiariesrecords with any such authorities), to the extent the need for such consent is not overridden by Section 365 of the Bankruptcy Code or other applicable law.
(f) No action, suit or proceeding (including, without limitation, any proceeding over which all such registrations, recordings and filings with such securities regulatory and other public authorities as may be required to be obtained by the U.S. Bankruptcy Court has jurisdiction under 28 U.S.C. (S) 157(b) and (c)) shall be pending Corporation in connection with the execution of this Agreement, the Closing or overtly threatened by or before any Governmental Authority or pending or overtly threatened by any other party to enjoin, restrain, prohibit or obtain substantial damages or significant equitable relief in respect the performance of or related to any of the transactions contemplated by this Agreement, or that would be reasonably likely to prevent or make illegal the consummation of any transactions contemplated by this Agreement or that, if adversely determined, could be materially adverse to Reorganized PSC or any of its Subsidiaries or the Investment, terms and any such actions, suits or proceedings that have theretofore been brought and determined shall have become Final Orders.
(g) There shall not be in effect any Law of any Governmental Authority of competent jurisdiction restraining, enjoining or otherwise preventing consummation of the transactions contemplated by this Agreement or the Bankruptcy Plan.
(h) There shall not be in effect any strike, slowdown, work stoppage, labor action or lockout relating to the Company or any of its Subsidiaries.
(i) No loss or modification of or limitation on any Accepted Contract, which results in a loss to the Company or any of its Subsidiaries in excess of $65,000,000 in the aggregateconditions hereof, shall have occurred since been obtained on or before the date hereof without Closing Date; and
(f) the written consent of Corporation shall deliver, or cause to be delivered to the Purchaser in its sole discretionon or before the Closing Date such other certificates, including without limitation any forfeiture, expiration without renewal, termination agreements or other loss thereof.
(j) The Bidding Procedures Order and the Icahn DIP Approval Order shall have each become a Final Order, the Confirmation Orders shall have been entered in form and substance reasonably satisfactory to Purchaser, and shall have become a Final Order, and any other orders of the Bankruptcy Courts with respect to this Agreement and 41 the transactions contemplated hereby shall be in form and substance reasonably satisfactory to Purchaser.
(k) The assets of Reorganized PCS and its Subsidiaries shall not include any Excluded Assets, and all Phase I environmental assessments and additional unintrusive due diligence on Real Estate conducted by or on behalf of Purchaser shall have been completed with results reasonably satisfactory to Purchaser in its sole discretion that no material expenditures, other than documents as may reasonably be agreed to required by the Purchaser in or its sole discretionsolicitors, shall be required acting reasonably, to remediate or otherwise cure any actual or potential Environmental Claim. Provided that Purchaser receives the disclosure Schedules timely from the Company and its Subsidiaries, as contemplated by Exhibit E, and is able give full effect to obtain the access that it may reasonably request to complete its environmental surveys and due diligence, including without limitation as contemplated by Section 4.1, on or before August 15, 2003, Purchaser will provide the Company on such date with a schedule of assets that it desires to include as Excluded Assets (the "Excluded Asset Schedule"), together with a schedule of the maximum amount of material expenditures that Purchaser shall deem material for purposes of this Section 5.1(k) (the "Environmental Liability Schedule"). Except to the extent otherwise agreed to by Purchaser in the Excluded Asset Schedule, if the Company and its Subsidiaries are not permitted to abandon any property listed in the Excluded Asset Schedule, after using all reasonable efforts to do so, Purchaser shall have the right either to terminate this Agreement, or to remove the subject property from the Excluded Asset Schedule such that it shall no longer be deemed to be an Excluded Asset; provided, however, that nothing herein shall be deemed to modify the maximum amount of expenditures set forth in the Environmental Liability Schedule without the written consent of Purchaser, in its sole discretion.
(l) No event, events or circumstance shall have occurred since the date of the initial Schedules delivered pursuant to Exhibit E which, independently or together with any other event, events or circumstance that have occurred or are reasonably likely to occur, have or are reasonably likely to have a Material Adverse Effect.
(m) The issuance of the Shares under the Bankruptcy Plan shall be exempt from registration under the Securities Act of 1933, as amended.
(n) The Company shall have executed and delivered the documents required to be executed and delivered by it pursuant to Section 1.6 hereof.
(o) The Company shall have, and shall have caused each of the other U.S. Debtors, and each of the U.S. Debtors shall have, obtained (i) the modifications of the terms, conditions, wages, benefits or work rules of any Collective Bargaining Agreement, or (ii) the rejection of the Collective Bargaining Agreements, in each case as directed by Purchaser in accordance with Section 4.8(a) hereof, in form and substance satisfactory to Purchaser in its sole discretion.
(p) The Company shall have provided Purchaser with evidence reasonably satisfactory to Purchaser that the total aggregate amount of Multiemployer Withdrawal Liability, (the calculation of which, for each multiemployer plan, shall be made as of each plan's last plan year end), shall not exceed the Maximum Permitted Multiemployer Withdrawal Liability Amount as of the Effective Date, and the Company and its Subsidiaries shall have rejected all single employer pension plans as contemplated by Section 4.8 and Section 4.10.
(q) The transactions underlying the Canadian Restructuring shall have been completed substantially on the terms contemplated hereby, including without limitation, as set forth in Exhibit G, such that the effective date of the Canadian Restructuring may be scheduled to be contemporaneous with the effective date of the U.S. Plan.
(r) The aggregate amount of all Exit Costs shall not exceed the Exit Cost Threshold.
Appears in 1 contract
Sources: Share Exchange Agreement (InterAmerican Gaming, Inc.)
Conditions Precedent to Obligations of the Purchaser. The obligations of the Purchaser under this Agreement to consummate the transactions contemplated hereby to be consummated at the Closing shall be by this Agreement are also subject to the satisfaction, satisfaction at or prior to the Closing, Closing of all each of the following conditions, any one or more of which may be waived in writing at by the option of Purchaser in its sole discretion:
(ai) All all representations and warranties of and covenants made by the Company and its Subsidiaries Seller in this Agreement or in any exhibit, schedule or document delivered pursuant hereto shall be true, complete true and correct in all respects (with respect to representations and warranties qualified or limited by materiality or Material Adverse Effect) or shall have been performed in all material respects (with respect to in the case of representations and warranties not so qualified or limited), warranties) and in each all respects (in the case when made and of covenants) on and as of the date hereof and the Closing Date as if made though restated on and as of such date (except in the Closing Date, other than case of any such representations representation or warranties warranty that expressly speak only by its terms is made as of an earlier datea date specified therein, which shall be true, complete and correct in all respects (with respect to representations and warranties qualified or limited by materiality or Material Adverse Effect) or in all material respects (with respect to representations and warranties not so qualified or limited), accurate as of such earlier date.), and the Seller shall provide a certificate to the Purchaser at Closing in the form of EXHIBIT VIII confirming that fact;
(bii) All of the terms, covenants and conditions Persons listed on EXHIBIT IX shall have tendered their resignations from their respective offices;
(iii) the Seller shall have made available to be complied with and performed by the Company or Purchaser for its Subsidiaries on or review at least ten (10) full Business Days prior to the Closing Date and at Closing the share registers and other statutory books of the Companies, and shall have been complied delivered to the Purchaser in reasonably satisfactory form evidence of compliance by the Seller, Arbel and PSB with all preemptive or performed similar rights contained in all material respects.the statuts of the Companies or in any shareholders' agreement of the Companies;
(civ) Purchaser shall have received a certificate no Judgment or certificatesLaw issued or enacted by any court or governmental or regulatory authority, dated as of which declares this Agreement invalid in any material respect or prevents the Closing Date, executed on behalf of the Company, by an authorized executive officer thereof, certifying in such detail as Purchaser may reasonably request that the conditions specified in this Section 5.1 have been fulfilled.
(d) The waiting period under the HSR Act, Investment Canada Act, the Canadian Competition Act or any other applicable competition, merger, control, antitrust Law or similar Law shall have expired or terminated, and any other Governmental Authorities whose consent is required for consummation of the transactions contemplated hereby (including without limitation the applicable shall be in effect; and no action or proceeding before any court or governmental or regulatory body of Canada or any province or other territorial unit thereof) authority, shall have issued all Consents required for been instituted or by any Person (other than the transactions contemplated hereby, and no condition or requirement unacceptable to Purchaser in its sole discretion shall be imposed on or required of Purchaser or any of its Affiliates as a result of or as a condition to any of the foregoing.
(eAffiliates) All material Consents described on Schedule 2.5 shall have been obtained without any material limitation, restriction or condition not otherwise applicable to the Company or its Subsidiaries being imposed on Reorganized PSC or its Subsidiaries, to the extent the need for such consent is not overridden by Section 365 of the Bankruptcy Code or other applicable law.
(f) No action, suit or proceeding (including, without limitation, any proceeding over which the U.S. Bankruptcy Court has jurisdiction under 28 U.S.C. (S) 157(b) and (c)) shall be pending or overtly threatened by or before any Governmental Authority or pending or overtly threatened by any other party to enjoin, restrain, prohibit or obtain substantial damages or significant equitable relief in respect of or related to any of the transactions contemplated by this Agreement, or that would be reasonably likely seeks to prevent or make illegal delay the consummation of any transactions contemplated by this Agreement or that, if adversely determined, could be materially adverse to Reorganized PSC or any of its Subsidiaries or the Investment, and any such actions, suits or proceedings that have theretofore been brought and determined shall have become Final Orders.
(g) There shall not be in effect any Law of any Governmental Authority of competent jurisdiction restraining, enjoining or otherwise preventing consummation of the transactions contemplated by this Agreement or which challenges the Bankruptcy Planvalidity or enforceability of this Agreement (other than a frivolous or vexatious application);
(v) during the period from July 1st, 1998, to the Closing Date, there shall not have been any change in the assets, properties, business, operations, prospects or financial condition of any of the Companies which individually or in the aggregate would constitute a Material Adverse Effect;
(vi) Valfond shall have purchased at par value the Arbel Debt from Cofimeta and set off the amount of the Arbel Debt against the Cofimeta Debt pursuant to a debt transfer and set-off agreement in the form attached in EXHIBIT X hereto;
(vii) at Closing Jean-▇▇▇▇▇▇▇▇ ▇▇▇stant and Patr▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ll have remained employed by the Companies;
(viii) Valfond shall have delivered signed non-competition agreements in the form of EXHIBIT XI between the Purchaser and each of Groupe Valois and Arbel Industrie, all in respect of the Restricted Business;
(ix) the Seller shall have provided to the Purchaser for its review at least thirty (30) full Business Days prior to the Closing Date (i) a certified copy of the duly adopted resolutions of the Board of Directors of Arbel and PSB approving the transfer of the Shares held at the date hereof by Arbel and PSB in Cofimeta and (ii) a certified copy of extracts of the promises to sell (pro▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇)<-▇- ▇▇>▇▇▇ ▇▇▇ of the Shares held by PSB and Arbel at the date hereof evidencing that the Seller has an irrevocable right to acquire good and marketable title to all of the Shares held by Arbel and PSB as from the date hereof; such certification shall be signed by the President of the Seller and shall contain a confirmation that there is nothing in the rest of such promises to sell or in any other agreement which would affect such right.
(hx) There The offices rental agreements between Cofimeta and Etablissements Arbel dated October 30, 1997 and between Cofimeta and Waeles Gestion dated June 15, 1998 shall not be have been amended in effect any strikeaccordance with EXHIBIT XII hereof, slowdownproviding for a term expiring on December 31, work stoppage, labor action or lockout relating 1999 (with a right of earlier termination upon 120 days' notice) and for rent equal to the Company or any of same rent per square meter as paid by Cofimeta to Etablissements Arbel and Waeles Gestion per square meter in accordance with the lease agreements in its Subsidiaries.current form ;
(i) No loss or modification of or limitation on any Accepted Contract, which results in a loss to The consolidated financial statements (including the Company or any of its Subsidiaries in excess of $65,000,000 in the aggregate, shall have occurred since the date hereof without the written consent of Purchaser in its sole discretion, including without limitation any forfeiture, expiration without renewal, termination or other loss thereof.
(j) The Bidding Procedures Order and the Icahn DIP Approval Order shall have each become a Final Orderbalance sheet, the Confirmation Orders profit and loss statement and annexes thereto of the Companies as of and for the period ended on September 30, 1998, (the "September 30, 1998 Financial Statements") shall have been entered in form and substance reasonably satisfactory to Purchaser, and shall have become a Final Order, and any other orders audited by PricewaterhouseCoopers at the latest within one month after the latter of (x) the Bankruptcy Courts with respect to date of this Agreement and 41 (y) the transactions contemplated hereby date on which the Seller provides to the Purchaser consolidated financial statements of the Companies with appropriate footnotes as at September 30, 1998, and (ii) such September 30, 1998 Financial Statements as audited by PricewaterhouseCoopers shall be in form and substance reasonably satisfactory to Purchaser.not show any material discrepancy with the consolidated June 30, 1998 Financial Statements;
(kb) The assets of Reorganized PCS and its Subsidiaries shall Should PricewaterhouseCoopers not include any Excluded Assetshave audited the September 30, and all Phase I environmental assessments and additional unintrusive due diligence on Real Estate conducted by or on behalf of Purchaser shall have been completed with results reasonably satisfactory to Purchaser in its sole discretion that no material expenditures, other than as may be agreed to 1998 Financial Statements by the Purchaser deadline set forth in its sole discretionSection 3.1(xi)(a)(i) hereof, shall be required to remediate or otherwise cure any actual or potential Environmental Claim. Provided that Purchaser receives the disclosure Schedules timely from the Company and its SubsidiariesSeptember 30, as contemplated by Exhibit E, and is able to obtain the access that it may reasonably request to complete its environmental surveys and due diligence, including without limitation as contemplated by Section 4.1, on or before August 15, 2003, Purchaser will provide the Company on such date with a schedule of assets that it desires to include as Excluded Assets (the "Excluded Asset Schedule"), together with a schedule of the maximum amount of material expenditures that Purchaser shall deem material for purposes of this Section 5.1(k) (the "Environmental Liability Schedule"). Except to the extent otherwise agreed to by Purchaser in the Excluded Asset Schedule, if the Company and its Subsidiaries are not permitted to abandon any property listed in the Excluded Asset Schedule, after using all reasonable efforts to do so, Purchaser shall have the right either to terminate this Agreement, or to remove the subject property from the Excluded Asset Schedule such that it shall no longer be deemed to be an Excluded Asset; provided, however, that nothing herein 1998 Financial Statements shall be deemed not to modify the maximum amount of expenditures set forth in the Environmental Liability Schedule without the written consent of Purchaser, in its sole discretion.
(l) No event, events or circumstance shall have occurred since the date of the initial Schedules delivered pursuant to Exhibit E which, independently or together with show any other event, events or circumstance that have occurred or are reasonably likely to occur, have or are reasonably likely to have a Material Adverse Effect.
(m) The issuance of the Shares under the Bankruptcy Plan shall be exempt from registration under the Securities Act of 1933, as amended.
(n) The Company shall have executed and delivered the documents required to be executed and delivered by it pursuant to Section 1.6 hereof.
(o) The Company shall have, and shall have caused each of the other U.S. Debtors, and each of the U.S. Debtors shall have, obtained (i) the modifications of the terms, conditions, wages, benefits or work rules of any Collective Bargaining Agreement, or (ii) the rejection of the Collective Bargaining Agreements, in each case as directed by Purchaser in accordance with Section 4.8(a) hereof, in form and substance satisfactory to Purchaser in its sole discretion.
(p) The Company shall have provided Purchaser with evidence reasonably satisfactory to Purchaser that the total aggregate amount of Multiemployer Withdrawal Liability, (the calculation of which, for each multiemployer plan, shall be made as of each plan's last plan year end), shall not exceed the Maximum Permitted Multiemployer Withdrawal Liability Amount as of the Effective Date, and the Company and its Subsidiaries shall have rejected all single employer pension plans as contemplated by Section 4.8 and Section 4.10.
(q) The transactions underlying the Canadian Restructuring shall have been completed substantially on the terms contemplated hereby, including without limitation, as set forth in Exhibit G, such that the effective date of the Canadian Restructuring may be scheduled to be contemporaneous material discrepancy with the effective date of the U.S. Plan.
(r) The aggregate amount of all Exit Costs shall not exceed the Exit Cost Threshold.consolidated June 30,
Appears in 1 contract
Sources: Share and Debt Purchase and Sale Agreement (Oxford Automotive Inc)
Conditions Precedent to Obligations of the Purchaser. The obligations obligation of Purchaser under this Agreement to consummate purchase the transactions contemplated hereby to be consummated Teletouch Securities at the Closing shall be is subject to the satisfaction, at satisfaction or prior to the Closing, of all waiver of the following conditions, any one or more of which may be waived in writing at conditions on the option of Purchaser in its sole discretionClosing Date:
(a) All each Seller shall have furnished Purchaser with a certified copy of resolutions adopted by the Board of Directors, general partner or other governing entity -9- 14 of such Seller approving the execution, delivery and performance of this Agreement and the transactions and other documents and instruments contemplated thereby;
(b) the representations and warranties of the Company and its Subsidiaries in this Agreement or in any exhibit, schedule or document delivered pursuant hereto made by Sellers herein shall be true, complete true and correct in all respects (with respect to representations and warranties qualified or limited by materiality or Material Adverse Effect) or in all material respects (with respect to representations and warranties not so qualified or limited), in each case when at the time they were made and on and as of the Closing Date with the same effect as if though such representations and warranties had been made on at and as of the Closing Date, other than any such representations or warranties that expressly speak only as of an earlier date, which ; Sellers shall be true, complete have performed and correct in all respects (with respect to representations and warranties qualified or limited by materiality or Material Adverse Effect) or complied in all material respects (with respect to representations and warranties not so qualified or limited), as of such earlier date.
(b) All of the terms, covenants all agreements and conditions required by this Agreement to be performed or complied with and performed by the Company or its Subsidiaries on then at or prior to the Closing Date shall have been complied with or performed in all material respects.
(c) Date, and Purchaser shall have received a certificate or certificates, from each Seller certifying as to the foregoing executed by a duly authorized representative of such Seller and dated as of the Closing Date;
(c) the purchase of and payment for the Teletouch Securities (i) shall not be prohibited or enjoined (temporarily or permanently) by any Governmental Authority pursuant to any applicable law or governmental regulation nor shall any Action seeking such prohibition or injunction be pending and (ii) shall not subject Purchaser to any material penalty or, executed on behalf of the Companyin its reasonable judgment, by an authorized executive officer thereof, certifying in such detail as Purchaser may reasonably request that the other onerous conditions specified in this Section 5.1 have been fulfilled.under or pursuant to any applicable law or governmental regulation;
(d) The waiting period under the HSR Act, Investment Canada Act, the Canadian Competition Act or any other applicable competition, merger, control, antitrust Law or similar Law Purchaser shall have expired or terminatedreceived from counsel to CIVC and Partners a legal opinion dated the Closing Date, and any other Governmental Authorities whose consent is required for consummation of addressing the transactions contemplated hereby (including without limitation the applicable regulatory body of Canada or any province or other territorial unit thereof) shall have issued all Consents required for the transactions contemplated hereby, and no condition or requirement unacceptable to Purchaser in its sole discretion shall be imposed on or required of Purchaser or any of its Affiliates as a result of or as a condition to any of the foregoing.matters set forth Exhibit C;
(e) All material Consents described on Schedule 2.5 Teletouch Common Stock Warrants held by the Warrant Holders shall have been obtained without any material limitation, restriction cancelled at no cost or condition not otherwise applicable expense to either Teletouch or Purchaser in consideration for the Company or its Subsidiaries being imposed on Reorganized PSC or its Subsidiaries, to release referenced in Section 5.2(e) below and with the extent the need for such consent is not overridden by Section 365 written agreement of the Bankruptcy Code or other applicable law.Warrant Holders, and evidence of such cancellation satisfactory to Purchaser shall be delivered to Purchaser by Sellers at the Closing;
(f) No action, suit or proceeding (including, without limitation, any proceeding over which All certificates and instruments representing the U.S. Bankruptcy Court has jurisdiction under 28 U.S.C. (S) 157(b) Teletouch Securities shall have been duly transferred to Purchaser and (c)) shall be pending or overtly threatened delivered by or before any Governmental Authority or pending or overtly threatened by any other party to enjoin, restrain, prohibit or obtain substantial damages or significant equitable relief Sellers in respect of or related to any accordance with the terms of the transactions contemplated by this Agreement, or that would be reasonably likely Assignment of Interest and/or Stock Powers pursuant to prevent or make illegal the consummation of any transactions contemplated by this Agreement or that, if adversely determined, could be materially adverse to Reorganized PSC or any of its Subsidiaries or the Investment, and any such actions, suits or proceedings that have theretofore been brought and determined shall have become Final Orders.Section 2.4.2 above;
(g) There shall not be in effect any Law of any Governmental Authority of competent jurisdiction restraining, enjoining or otherwise preventing consummation of the transactions contemplated by this Agreement or the Bankruptcy Plan.
(h) There shall not be in effect any strike, slowdown, work stoppage, labor action or lockout relating to the Company or any of its Subsidiaries.
(i) No loss or modification of or limitation on any Accepted Contract, which results in a loss to the Company or any of its Subsidiaries in excess of $65,000,000 in the aggregate, shall have occurred since the date hereof without the written consent of Purchaser in its sole discretion, including without limitation any forfeiture, expiration without renewal, termination or other loss thereof.
(j) The Bidding Procedures Order and the Icahn DIP Approval Order shall have each become a Final Order, the Confirmation Orders shall have been entered in form and substance reasonably satisfactory to Purchaser, and shall have become a Final Order, and any other orders of the Bankruptcy Courts with respect to this Agreement and 41 the transactions contemplated hereby shall be in form and substance reasonably satisfactory to Purchaser.
(k) The assets of Reorganized PCS and its Subsidiaries shall not include any Excluded Assets, and all Phase I environmental assessments and additional unintrusive due diligence on Real Estate conducted by or on behalf of Purchaser shall have been completed with results reasonably satisfactory to Purchaser in its sole discretion that no material expenditures, other than as may be agreed to by the Purchaser in its sole discretion, shall be required to remediate or otherwise cure any actual or potential Environmental Claim. Provided that Purchaser receives the disclosure Schedules timely from the Company and its Subsidiaries, as contemplated by Exhibit E, and is able to obtain the access that it may reasonably request to complete its environmental surveys and due diligence, including without limitation as contemplated by Section 4.1, on or before August 15, 2003, Purchaser will provide the Company on such date with a schedule of assets that it desires to include as Excluded Assets (the "Excluded Asset Schedule"), together with a schedule of the maximum amount of material expenditures that Purchaser shall deem material for purposes of this Section 5.1(k) (the "Environmental Liability Schedule"). Except to the extent otherwise agreed to by Purchaser in the Excluded Asset Schedule, if the Company and its Subsidiaries are not permitted to abandon any property listed in the Excluded Asset Schedule, after using all reasonable efforts to do so, Purchaser shall have the right either to terminate this Agreement, or to remove the subject property from the Excluded Asset Schedule such that it shall no longer be deemed to be an Excluded Asset; provided, however, that nothing herein shall be deemed to modify the maximum amount of expenditures set forth in the Environmental Liability Schedule without the written consent of Purchaser, in its sole discretion.
(l) No event, events or circumstance shall have occurred since the date of the initial Schedules delivered pursuant to Exhibit E which, independently or together with any other event, events or circumstance that have occurred or are reasonably likely to occur, have or are reasonably likely to have a Material Adverse Effect.
(m) The issuance of the Shares under the Bankruptcy Plan shall be exempt from registration under the Securities Act of 1933, as amended.
(n) The Company Sellers shall have executed and delivered the documents required to be applicable Assignments of Interest and/or Stock Powers;
(h) Sellers shall have executed and delivered by it pursuant to Section 1.6 hereof.a release in favor of Purchaser, Teletouch and the directors and officers of Teletouch in the form attached as Exhibit B hereto;
(o) The Company shall have, and shall have caused each of the other U.S. Debtors, and each of the U.S. Debtors shall have, obtained (i) the modifications of the terms, conditions, wages, benefits or work rules of any Collective Bargaining Agreement, or Sellers shall have received all necessary Lender Consents; and
(iij) the rejection of the Collective Bargaining AgreementsStockholders Agreement dated August 3, in each case as directed by Purchaser in accordance with Section 4.8(a) hereof1995, in form to which Partners, CIVC, Rob▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇eletouch and substance satisfactory to Purchaser in its sole discretion.
(p) The Company shall have provided Purchaser with evidence reasonably satisfactory to Purchaser that the total aggregate amount of Multiemployer Withdrawal LiabilityGM Holdings, LLC are parties, among others (the calculation of which, for each multiemployer plan, shall be made as of each plan's last plan year end"Stockholders Agreement"), shall not exceed the Maximum Permitted Multiemployer Withdrawal Liability Amount as of the Effective Date, and the Company and its Subsidiaries shall have rejected all single employer pension plans as contemplated by Section 4.8 and Section 4.10.
(q) The transactions underlying the Canadian Restructuring shall have been completed substantially on the terms contemplated hereby, including without limitation, as set forth in Exhibit G, such that the effective date of the Canadian Restructuring may be scheduled to be contemporaneous with the effective date of the U.S. Planterminated.
(r) The aggregate amount of all Exit Costs shall not exceed the Exit Cost Threshold.
Appears in 1 contract
Sources: Option and Securities Purchase Agreement (McMurrey Robert M)
Conditions Precedent to Obligations of the Purchaser. The obligations of Purchaser under this Agreement to consummate the transactions contemplated hereby to be consummated at the Closing shall be subject to the satisfaction, at or prior to the Closing, of all of the following conditions, any one or more of which may be waived in writing at the option of Purchaser in its sole discretion:
(a) All representations and warranties of the Company and its Subsidiaries in this Agreement or in any exhibit, schedule or document delivered pursuant hereto shall be true, complete and correct in all respects (with respect to representations and warranties qualified or limited by materiality or Material Adverse Effect) or in all material respects (with respect to representations and warranties not so qualified or limited), in each case when made and on and as of the Closing Date as if made on and as of the Closing Date, other than any such representations or warranties that expressly speak only as of an earlier date, which shall be true, complete and correct in all respects (with respect to representations and warranties qualified or limited by materiality or Material Adverse Effect) or in all material respects (with respect to representations and warranties not so qualified or limited), as of such earlier date.
(b) All of the terms, covenants and conditions to be complied with and performed by the Company or its Subsidiaries on or prior to the Closing Date shall have been complied with or performed in all material respects.
(c) Purchaser shall have received a certificate or certificates, dated as of the Closing Date, executed on behalf of the Company, by an authorized executive officer thereof, certifying in such detail as Purchaser may reasonably request that the conditions specified in this Section 5.1 have been fulfilled.
(d) The waiting period under the HSR Act, Investment Canada Act, the Canadian Competition Act or any other applicable competition, merger, control, antitrust Law or similar Law shall have expired or terminated, and any other Governmental Authorities whose consent is required for consummation of the transactions contemplated hereby (including without limitation the applicable regulatory body of Canada or any province or other territorial unit thereof) shall have issued all Consents required for the transactions contemplated hereby, and no condition or requirement unacceptable to Purchaser in its sole discretion shall be imposed on or required of Purchaser or any of its Affiliates as a result of or as a condition to any of the foregoing.
(e) All material Consents described on Schedule 2.5 shall have been obtained without any material limitation, restriction or condition not otherwise applicable to the Company or its Subsidiaries being imposed on Reorganized PSC or its Subsidiaries, to the extent the need for such consent is not overridden by Section 365 of the Bankruptcy Code or other applicable law.
(f) No action, suit or proceeding (including, without limitation, any proceeding over which the U.S. Bankruptcy Court has jurisdiction under 28 U.S.C. (S) 157(b) and (c)) shall be pending or overtly threatened by or before any Governmental Authority or pending or overtly threatened by any other party to enjoin, restrain, prohibit or obtain substantial damages or significant equitable relief in respect of or related to any of the transactions contemplated by this Agreement, or that would be reasonably likely to prevent or make illegal the consummation of any transactions contemplated by this Agreement or that, if adversely determined, could be materially adverse to Reorganized PSC or any of its Subsidiaries or the Investment, and any such actions, suits or proceedings that have theretofore been brought and determined shall have become Final Orders.
(g) There shall not be in effect any Law of any Governmental Authority of competent jurisdiction restraining, enjoining or otherwise preventing consummation of the transactions contemplated by this Agreement or the Bankruptcy Plan.
(h) There shall not be in effect any strike, slowdown, work stoppage, labor action or lockout relating to the Company or any of its Subsidiaries.
(i) No loss or modification of or limitation on any Accepted Contract, which results in a loss to the Company or any of its Subsidiaries in excess of $65,000,000 in the aggregate, shall have occurred since the date hereof without the written consent of Purchaser in its sole discretion, including without limitation any forfeiture, expiration without renewal, termination or other loss thereof.
(j) The Bidding Procedures Order and the Icahn DIP Approval Order shall have each become a Final Order, the Confirmation Orders shall have been entered in form and substance reasonably satisfactory to Purchaser, and shall have become a Final Order, and any other orders of the Bankruptcy Courts with respect to this Agreement and 41 the transactions contemplated hereby shall be in form and substance reasonably satisfactory to Purchaser.
(k) The assets of Reorganized PCS and its Subsidiaries shall not include any Excluded Assets, and all Phase I environmental assessments and additional unintrusive due diligence on Real Estate conducted by or on behalf of Purchaser shall have been completed with results reasonably satisfactory to Purchaser in its sole discretion that no material expenditures, other than as may be agreed to by the Purchaser in its sole discretion, shall be required to remediate or otherwise cure any actual or potential Environmental Claim. Provided that Purchaser receives the disclosure Schedules timely from the Company and its Subsidiaries, as contemplated by Exhibit E, and is able to obtain the access that it may reasonably request to complete its environmental surveys and due diligence, including without limitation as contemplated by Section 4.1, on or before August 15, 2003, Purchaser will provide the Company on such date with a schedule of assets that it desires to include as Excluded Assets (the "Excluded Asset Schedule"), together with a schedule of the maximum amount of material expenditures that Purchaser shall deem material for purposes of this Section 5.1(k) (the "Environmental Liability Schedule"). Except to the extent otherwise agreed to by Purchaser in the Excluded Asset Schedule, if the Company and its Subsidiaries are not permitted to abandon any property listed in the Excluded Asset Schedule, after using all reasonable efforts to do so, Purchaser shall have the right either to terminate this Agreement, or to remove the subject property from the Excluded Asset Schedule such that it shall no longer be deemed to be an Excluded Asset; provided, however, that nothing herein shall be deemed to modify the maximum amount of expenditures set forth in the Environmental Liability Schedule without the written consent of Purchaser, in its sole discretion.
(l) No event, events or circumstance shall have occurred since the date of the initial Schedules delivered pursuant to Exhibit E which, independently or together with any other event, events or circumstance that have occurred or are reasonably likely to occur, have or are reasonably likely to have a Material Adverse Effect.
(m) The issuance of the Shares under the Bankruptcy Plan shall be exempt from registration under the Securities Act of 1933, as amended.
(n) The Company shall have executed and delivered the documents required to be executed and delivered by it pursuant to Section 1.6 hereof.
(o) The Company shall have, and shall have caused each of the other U.S. Debtors, and each of the U.S. Debtors shall have, obtained (i) the modifications of the terms, conditions, wages, benefits or work rules of any Collective Bargaining Agreement, or (ii) the rejection of the Collective Bargaining Agreements, in each case as directed by Purchaser in accordance with Section 4.8(a) hereof, in form and substance satisfactory to Purchaser in its sole discretion.
(p) The Company shall have provided Purchaser with evidence reasonably satisfactory to Purchaser that the total aggregate amount of Multiemployer Withdrawal Liability, (the calculation of which, for each multiemployer plan, shall be made as of each plan's last plan year end), shall not exceed the Maximum Permitted Multiemployer Withdrawal Liability Amount as of the Effective Date, and the Company and its Subsidiaries shall have rejected all single employer pension plans as contemplated by Section 4.8 and Section 4.10.
(q) The transactions underlying the Canadian Restructuring shall have been completed substantially on the terms contemplated hereby, including without limitation, as set forth in Exhibit G, such that the effective date of the Canadian Restructuring may be scheduled to be contemporaneous with the effective date of the U.S. Plan.
(r) The aggregate amount of all Exit Costs shall not exceed the Exit Cost Threshold.
Appears in 1 contract
Conditions Precedent to Obligations of the Purchaser. The obligations obligation of the Purchaser under this Agreement to consummate purchase the transactions contemplated hereby to be consummated at the Closing shall be Preferred Shares and Warrants hereunder is subject to the satisfaction, at or prior to the Closing, of all satisfaction of the following conditions, any one conditions on or more of which may be waived in writing at before the option of Purchaser in its sole discretionClosing Date:
(a) All The representations and warranties of made by the Company herein and its Subsidiaries in this the Registration Rights Agreement, the Warrant Certificate and the Shareholders Agreement or in any exhibit, schedule or document delivered pursuant hereto shall be true, complete true and correct in all respects (with respect to representations and warranties qualified or limited by materiality or Material Adverse Effect) or in all material respects (with respect to representations and warranties not so qualified or limited), in each case when made and on and as of the Closing Date with the same effect as if though such representations and warranties had been made on and as of the Closing Date, other than any such representations or warranties that expressly speak only as of an earlier date, which shall be true, complete and correct in all respects (with respect to representations and warranties qualified or limited by materiality or Material Adverse Effect) or in all material respects (with respect to representations and warranties not so qualified or limited), as of such earlier date.
(b) All of the termsThe Company shall have performed and complied in all material respects with all covenants, covenants agreements and conditions set forth or contemplated herein and in the Registration Rights Agreement, the Warrant Certificate and the Shareholders Agreement required to be performed or complied with and performed by the Company or its Subsidiaries it on or prior to the Closing Date shall have been complied with or performed in all material respectsDate.
(c) Purchaser The Company shall have received a certificate or certificates, dated as filed the Certificate of Amendment with the Closing Date, executed on behalf Secretary of State of New York and the Company, by an authorized executive officer thereof, certifying Certificate of Amendment shall be in such detail as Purchaser may reasonably request that the conditions specified in this Section 5.1 have been fulfilledfull force and effect.
(d) The waiting period under the HSR Act, Investment Canada Act, the Canadian Competition Act or any other applicable competition, merger, control, antitrust Law or similar Law shall have expired or terminated, and any other Governmental Authorities whose consent is required for consummation of the transactions contemplated hereby (including without limitation the applicable regulatory body of Canada or any province or other territorial unit thereof) shall have issued all Consents required for the transactions contemplated hereby, and no condition or requirement unacceptable to Purchaser in its sole discretion shall be imposed on or required of Purchaser or any of its Affiliates as a result of or as a condition to any of the foregoing.
(e) All material Consents described on Schedule 2.5 shall have been obtained without any material limitation, restriction or condition not otherwise applicable to the Company or its Subsidiaries being imposed on Reorganized PSC or its Subsidiaries, to the extent the need for such consent is not overridden by Section 365 of the Bankruptcy Code or other applicable law.
(f) No action, suit or proceeding (including, without limitation, any proceeding over which the U.S. Bankruptcy Court has jurisdiction under 28 U.S.C. (S) 157(b) and (c)) shall be pending or overtly threatened by or before any Governmental Authority or pending or overtly threatened by any other party to enjoin, restrain, prohibit or obtain substantial damages or significant equitable relief in respect of or related to any of the transactions contemplated by this Agreement, or that would be reasonably likely to prevent or make illegal the consummation of any transactions contemplated by this Agreement or that, if adversely determined, could be materially adverse to Reorganized PSC or any of its Subsidiaries or the Investment, and any such actions, suits or proceedings that have theretofore been brought and determined shall have become Final Orders.
(g) There shall not be in effect any Law of any Governmental Authority of competent jurisdiction restraining, enjoining or otherwise preventing consummation of the transactions contemplated by this Agreement or the Bankruptcy Plan.
(h) There shall not be in effect any strike, slowdown, work stoppage, labor action or lockout relating to the Company or any of its Subsidiaries.
(i) No loss or modification of or limitation on any Accepted Contract, which results in a loss to the Company or any of its Subsidiaries in excess of $65,000,000 in the aggregate, shall have occurred since the date hereof without the written consent of Purchaser in its sole discretion, including without limitation any forfeiture, expiration without renewal, termination or other loss thereof.
(j) The Bidding Procedures Order and the Icahn DIP Approval Order shall have each become a Final Order, the Confirmation Orders shall have been entered in form and substance reasonably satisfactory to Purchaser, and shall have become a Final Order, and any other orders of the Bankruptcy Courts with respect to this Agreement and 41 the transactions contemplated hereby shall be in form and substance reasonably satisfactory to Purchaser.
(k) The assets of Reorganized PCS and its Subsidiaries shall not include any Excluded Assets, and all Phase I environmental assessments and additional unintrusive due diligence on Real Estate conducted by or on behalf of Purchaser shall have been completed with results reasonably satisfactory to Purchaser in its sole discretion that no material expenditures, other than as may be agreed to by the Purchaser in its sole discretion, shall be required to remediate or otherwise cure any actual or potential Environmental Claim. Provided that Purchaser receives the disclosure Schedules timely from the Company and its Subsidiaries, as contemplated by Exhibit E, and is able to obtain the access that it may reasonably request to complete its environmental surveys and due diligence, including without limitation as contemplated by Section 4.1, on or before August 15, 2003, Purchaser will provide the Company on such date with a schedule of assets that it desires to include as Excluded Assets (the "Excluded Asset Schedule"), together with a schedule of the maximum amount of material expenditures that Purchaser shall deem material for purposes of this Section 5.1(k) (the "Environmental Liability Schedule"). Except to the extent otherwise agreed to by Purchaser in the Excluded Asset Schedule, if the Company and its Subsidiaries are not permitted to abandon any property listed in the Excluded Asset Schedule, after using all reasonable efforts to do so, Purchaser shall have the right either to terminate this Agreement, or to remove the subject property from the Excluded Asset Schedule such that it shall no longer be deemed to be an Excluded Asset; provided, however, that nothing herein shall be deemed to modify the maximum amount of expenditures set forth in the Environmental Liability Schedule without the written consent of Purchaser, in its sole discretion.
(l) No event, events or circumstance shall have occurred since the date of the initial Schedules delivered pursuant to Exhibit E which, independently or together with any other event, events or circumstance that have occurred or are reasonably likely to occur, have or are reasonably likely to have a Material Adverse Effect.
(m) The issuance of the Shares under the Bankruptcy Plan shall be exempt from registration under the Securities Act of 1933, as amended.
(n) The Company shall have executed and delivered the documents Registration Rights Agreement, the Warrant Certificate and the Shareholders Agreement.
(e) The purchase of and payment for the Preferred Shares and Warrants hereunder shall not (i) be prohibited by any applicable law, rule or regulation, (ii) subject the Purchaser to any penalty or other onerous condition pursuant to any applicable law, rule or regulation or (iii) be prevented, prohibited or materially restricted by any judgment, injunction (whether temporary or permanent), order or decree at the Closing Date.
(f) All authorizations, consents, approvals, permits and licenses and filings with, by or in respect of any federal, state, local or foreign governmental authority, agency, court or other body required to be executed taken, given or obtained that are necessary in connection with the transactions contemplated herein and delivered by it pursuant in the other documents related hereto, shall have been taken, given or obtained, be in full force and effect and not be subject to Section 1.6 hereofany waiting periods or any pending proceedings or appeals, administrative, judicial or otherwise.
(og) The Company Since the date of this Agreement, there shall havenot have occurred any change, and shall have caused each occurrence or circumstance in or affecting the business, assets, liabilities, financial condition, operations or prospects of the other U.S. Debtors, and each Company or any Subsidiary that has had or may reasonably be expected to have a Material Adverse Effect on the Company.
(h) At least one vacancy shall exist on the Board of Directors of the U.S. Debtors shall have, obtained Company to be filled on the Closing Date by the Purchaser pursuant to the Shareholders Agreement.
(i) The Closing Date shall not be later than 5:00 p.m., New York time, on December 20, 1996, or such later time as the modifications Purchaser may agree to.
(j) On or before the Closing Date, the Purchaser shall have received all of the terms, conditions, wages, benefits or work rules of any Collective Bargaining Agreement, or following from the Company in form and substance reasonably satisfactory to the Purchaser:
(iii) Certificates representing the rejection of Preferred Shares and the Collective Bargaining Agreements, in each case as directed by Warrant Certificate issued to the Purchaser in accordance with Section 4.8(a2.1;
(ii) hereofCertificate of the Secretary of the Company dated as of the Closing Date certifying as to (A) the Certificate of Incorporation of the Company, recently certified by the Secretary of State of New York, as duly filed and currently in full force and effect without further amendment, other than as amended by the Certificate of Amendment; (B) the by-laws of the Company as currently in full force and effect; (C) the resolutions, in form and substance satisfactory to Purchaser in its sole discretion.
(p) The Company shall have provided Purchaser with evidence reasonably satisfactory to Purchaser that the total aggregate amount Purchaser, of Multiemployer Withdrawal Liabilitythe shareholders and the Board of Directors of the Company duly authorizing the execution, delivery and performance of this Agreement, the Registration Rights Agreement, the Warrant Certificate, the Shareholders Agreement and any other documents, instruments or agreements executed in connection herewith or therewith to which it is a party and the absence of other resolutions relating thereto; (D) the calculation absence of whichproceedings for the merger, for each multiemployer planconsolidation, shall be made as sale of assets, dissolution, liquidation or similar proceedings with respect to the Company; and (E) the incumbency and signature of the individuals authorized to execute and deliver documents on the Company's behalf;
(iii) Certificate of the Secretary of each plan's last plan year end), shall not exceed of the Maximum Permitted Multiemployer Withdrawal Liability Amount Subsidiaries dated as of the Effective Closing Date certifying as to (A) the Certificate of Incorporation of such Person, recently certified by the appropriate governmental authority of the jurisdiction in which such Person is organized, as duly filed and currently in full force and effect without further amendment; (B) the by-laws of such Person as currently in full force and effect; (C) the absence of proceedings for the merger, consolidation, sale of assets, dissolution, liquidation or similar proceedings with respect to such Person; and (D) the incumbency and signature of the individuals authorized to execute and deliver documents on such Person's behalf;
(iv) Certificate executed by an officer of the Company dated as of the Closing Date, certifying that the representations and warranties of the Company contained in this Agreement, the Registration Rights Agreement, the Warrant Certificate and the Company Shareholders Agreement are true and its Subsidiaries shall have rejected all single employer pension plans correct as contemplated by Section 4.8 of the Closing Date with the same effect as though such representations and Section 4.10.warranties had been made on and as of such date;
(qv) The transactions underlying An opinion addressed to the Canadian Restructuring shall have been completed substantially on the terms contemplated hereby, including without limitation, Purchaser and dated as set forth in Exhibit G, such that the effective date of the Canadian Restructuring may be scheduled Closing Date of Berg▇▇ & ▇aul, ▇▇ecial counsel to be contemporaneous with the effective date Company, substantially in the form of the U.S. Plan.Annex V hereto; and
(rvi) The aggregate amount of all Exit Costs shall not exceed Such additional documentation as the Exit Cost ThresholdPurchaser may reasonably request.
Appears in 1 contract
Sources: Convertible Preferred Stock and Warrant Purchase Agreement (American International Group Inc)
Conditions Precedent to Obligations of the Purchaser. The obligations obligation of the Purchaser under this Agreement to consummate purchase the transactions contemplated hereby to be consummated at the Closing shall be Preferred Shares and Warrants hereunder is subject to the satisfaction, at or prior to the Closing, of all satisfaction of the following conditions, any one conditions on or more of which may be waived in writing at before the option of Purchaser in its sole discretionClosing Date:
(a) All The representations and warranties of made by the Company herein and its Subsidiaries in this the Registration Rights Agreement, the Warrant Certificate and the Shareholders Agreement or in any exhibit, schedule or document delivered pursuant hereto shall be true, complete true and correct in all respects (with respect to representations and warranties qualified or limited by materiality or Material Adverse Effect) or in all material respects (with respect to representations and warranties not so qualified or limited), in each case when made and on and as of the Closing Date with the same effect as if though such representations and warranties had been made on and as of the Closing Date, other than any such representations or warranties that expressly speak only as of an earlier date, which shall be true, complete and correct in all respects (with respect to representations and warranties qualified or limited by materiality or Material Adverse Effect) or in all material respects (with respect to representations and warranties not so qualified or limited), as of such earlier date.
(b) All of the termsThe Company shall have performed and complied in all material respects with all covenants, covenants agreements and conditions set forth or contemplated herein and in the Registration Rights Agreement, the Warrant Certificate and the Shareholders Agreement required to be performed or complied with and performed by the Company or its Subsidiaries it on or prior to the Closing Date shall have been complied with or performed in all material respectsDate.
(c) Purchaser The Company shall have received a certificate or certificates, dated as filed the Certificate of Amendment with the Closing Date, executed on behalf Secretary of State of New York and the Company, by an authorized executive officer thereof, certifying Certificate of Amendment shall be in such detail as Purchaser may reasonably request that the conditions specified in this Section 5.1 have been fulfilledfull force and effect.
(d) The waiting period under the HSR Act, Investment Canada Act, the Canadian Competition Act or any other applicable competition, merger, control, antitrust Law or similar Law shall have expired or terminated, and any other Governmental Authorities whose consent is required for consummation of the transactions contemplated hereby (including without limitation the applicable regulatory body of Canada or any province or other territorial unit thereof) shall have issued all Consents required for the transactions contemplated hereby, and no condition or requirement unacceptable to Purchaser in its sole discretion shall be imposed on or required of Purchaser or any of its Affiliates as a result of or as a condition to any of the foregoing.
(e) All material Consents described on Schedule 2.5 shall have been obtained without any material limitation, restriction or condition not otherwise applicable to the Company or its Subsidiaries being imposed on Reorganized PSC or its Subsidiaries, to the extent the need for such consent is not overridden by Section 365 of the Bankruptcy Code or other applicable law.
(f) No action, suit or proceeding (including, without limitation, any proceeding over which the U.S. Bankruptcy Court has jurisdiction under 28 U.S.C. (S) 157(b) and (c)) shall be pending or overtly threatened by or before any Governmental Authority or pending or overtly threatened by any other party to enjoin, restrain, prohibit or obtain substantial damages or significant equitable relief in respect of or related to any of the transactions contemplated by this Agreement, or that would be reasonably likely to prevent or make illegal the consummation of any transactions contemplated by this Agreement or that, if adversely determined, could be materially adverse to Reorganized PSC or any of its Subsidiaries or the Investment, and any such actions, suits or proceedings that have theretofore been brought and determined shall have become Final Orders.
(g) There shall not be in effect any Law of any Governmental Authority of competent jurisdiction restraining, enjoining or otherwise preventing consummation of the transactions contemplated by this Agreement or the Bankruptcy Plan.
(h) There shall not be in effect any strike, slowdown, work stoppage, labor action or lockout relating to the Company or any of its Subsidiaries.
(i) No loss or modification of or limitation on any Accepted Contract, which results in a loss to the Company or any of its Subsidiaries in excess of $65,000,000 in the aggregate, shall have occurred since the date hereof without the written consent of Purchaser in its sole discretion, including without limitation any forfeiture, expiration without renewal, termination or other loss thereof.
(j) The Bidding Procedures Order and the Icahn DIP Approval Order shall have each become a Final Order, the Confirmation Orders shall have been entered in form and substance reasonably satisfactory to Purchaser, and shall have become a Final Order, and any other orders of the Bankruptcy Courts with respect to this Agreement and 41 the transactions contemplated hereby shall be in form and substance reasonably satisfactory to Purchaser.
(k) The assets of Reorganized PCS and its Subsidiaries shall not include any Excluded Assets, and all Phase I environmental assessments and additional unintrusive due diligence on Real Estate conducted by or on behalf of Purchaser shall have been completed with results reasonably satisfactory to Purchaser in its sole discretion that no material expenditures, other than as may be agreed to by the Purchaser in its sole discretion, shall be required to remediate or otherwise cure any actual or potential Environmental Claim. Provided that Purchaser receives the disclosure Schedules timely from the Company and its Subsidiaries, as contemplated by Exhibit E, and is able to obtain the access that it may reasonably request to complete its environmental surveys and due diligence, including without limitation as contemplated by Section 4.1, on or before August 15, 2003, Purchaser will provide the Company on such date with a schedule of assets that it desires to include as Excluded Assets (the "Excluded Asset Schedule"), together with a schedule of the maximum amount of material expenditures that Purchaser shall deem material for purposes of this Section 5.1(k) (the "Environmental Liability Schedule"). Except to the extent otherwise agreed to by Purchaser in the Excluded Asset Schedule, if the Company and its Subsidiaries are not permitted to abandon any property listed in the Excluded Asset Schedule, after using all reasonable efforts to do so, Purchaser shall have the right either to terminate this Agreement, or to remove the subject property from the Excluded Asset Schedule such that it shall no longer be deemed to be an Excluded Asset; provided, however, that nothing herein shall be deemed to modify the maximum amount of expenditures set forth in the Environmental Liability Schedule without the written consent of Purchaser, in its sole discretion.
(l) No event, events or circumstance shall have occurred since the date of the initial Schedules delivered pursuant to Exhibit E which, independently or together with any other event, events or circumstance that have occurred or are reasonably likely to occur, have or are reasonably likely to have a Material Adverse Effect.
(m) The issuance of the Shares under the Bankruptcy Plan shall be exempt from registration under the Securities Act of 1933, as amended.
(n) The Company shall have executed and delivered the documents Registration Rights Agreement, the Warrant Certificate and the Shareholders Agreement.
(e) The purchase of and payment for the Preferred Shares and Warrants hereunder shall not (i) be prohibited by any applicable law, rule or regulation, (ii) subject the Purchaser to any penalty or other onerous condition pursuant to any applicable law, rule or regulation or (iii) be prevented, prohibited or materially restricted by any judgment, injunction (whether temporary or permanent), order or decree at the Closing Date.
(f) All authorizations, consents, approvals, permits and licenses and filings with, by or in respect of any federal, state, local or foreign governmental authority, agency, court or other body required to be executed taken, given or obtained that are necessary in connection with the transactions contemplated herein and delivered by it pursuant in the other documents related hereto, shall have been taken, given or obtained, be in full force and effect and not be subject to Section 1.6 hereofany waiting periods or any pending proceedings or appeals, administrative, judicial or otherwise.
(og) The Company Since the date of this Agreement, there shall havenot have occurred any change, and shall have caused each occurrence or circumstance in or affecting the business, assets, liabilities, financial condition, operations or prospects of the other U.S. Debtors, and each Company or any Subsidiary that has had or may reasonably be expected to have a Material Adverse Effect on the Company.
(h) At least one vacancy shall exist on the Board of Directors of the U.S. Debtors shall have, obtained Company to be filled on the Closing Date by the Purchaser pursuant to the Shareholders Agreement.
(i) The Closing Date shall not be later than 5:00 p.m., New York time, on December 20, 1996, or such later time as the modifications Purchaser may agree to.
(j) On or before the Closing Date, the Purchaser shall have received all of the terms, conditions, wages, benefits or work rules of any Collective Bargaining Agreement, or following from the Company in form and substance reasonably satisfactory to the Purchaser:
(iii) Certificates representing the rejection of Preferred Shares and the Collective Bargaining Agreements, in each case as directed by Warrant Certificate issued to the Purchaser in accordance with Section 4.8(a2.1;
(ii) hereofCertificate of the Secretary of the Company dated as of the Closing Date certifying as to (A) the Certificate of Incorporation of the Company, recently certified by the Secretary of State of New York, as duly filed and currently in full force and effect without further amendment, other than as amended by the Certificate of Amendment; (B) the by-laws of the Company as currently in full force and effect; (C) the resolutions, in form and substance satisfactory to Purchaser in its sole discretion.
(p) The Company shall have provided Purchaser with evidence reasonably satisfactory to Purchaser that the total aggregate amount Purchaser, of Multiemployer Withdrawal Liabilitythe shareholders and the Board of Directors of the Company duly authorizing the execution, delivery and performance of this Agreement, the Registration Rights Agreement, the Warrant Certificate, the Shareholders Agreement and any other documents, instruments or agreements executed in connection herewith or therewith to which it is a party and the absence of other resolutions relating thereto; (D) the calculation absence of whichproceedings for the merger, for each multiemployer planconsolidation, shall be made as sale of assets, dissolution, liquidation or similar proceedings with respect to the Company; and (E) the incumbency and signature of the individuals authorized to execute and deliver documents on the Company's behalf;
(iii) Certificate of the Secretary of each plan's last plan year end), shall not exceed of the Maximum Permitted Multiemployer Withdrawal Liability Amount Subsidiaries dated as of the Effective Closing Date certifying as to (A) the Certificate of Incorporation of such Person, recently certified by the appropriate governmental authority of the jurisdiction in which such Person is organized, as duly filed and currently in full force and effect without further amendment; (B) the by-laws of such Person as currently in full force and effect; (C) the absence of proceedings for the merger, consolidation, sale of assets, dissolution, liquidation or similar proceedings with respect to such Person; and (D) the incumbency and signature of the individuals authorized to execute and deliver documents on such Person's behalf;
(iv) Certificate executed by an officer of the Company dated as of the Closing Date, certifying that the representations and warranties of the Company contained in this Agreement, the Registration Rights Agreement, the Warrant Certificate and the Company Shareholders Agreement are true and its Subsidiaries shall have rejected all single employer pension plans correct as contemplated by Section 4.8 of the Closing Date with the same effect as though such representations and Section 4.10.warranties had been made on and as of such date;
(qv) The transactions underlying An opinion addressed to the Canadian Restructuring shall have been completed substantially on the terms contemplated hereby, including without limitation, Purchaser and dated as set forth in Exhibit G, such that the effective date of the Canadian Restructuring may be scheduled Closing Date of ▇▇▇▇▇▇ & ▇▇▇▇, special counsel to be contemporaneous with the effective date Company, substantially in the form of the U.S. Plan.Annex V hereto; and
(rvi) The aggregate amount of all Exit Costs shall not exceed Such additional documentation as the Exit Cost ThresholdPurchaser may reasonably request.
Appears in 1 contract
Sources: Convertible Preferred Stock and Warrant Purchase Agreement (Alcohol Sensors International LTD)