Common use of CONDITIONS PRECEDENT TO CONSUMMATION OF THE Clause in Contracts

CONDITIONS PRECEDENT TO CONSUMMATION OF THE. MERGER Section 8.1. 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) The representations and warranties of Landmark contained in this Agreement (other than any representations and warranties made as of a specific date) shall be true and correct as of the Closing Date in all material respects (except to the extent any representation or warranty is already qualified by materiality, in which case it shall be true and correct in all respects), except as otherwise contemplated or permitted by this Agreement, and Parent shall have received a certificate to that effect dated the Closing Date and executed on behalf of Landmark by the chief executive officer. (b) Each of the covenants, agreements and obligations of Landmark 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 at or before the Effective Time, and at the Closing, Landmark shall have delivered to Parent a certificate to that effect. (c) Parent shall have received the opinion of Hunton & Xxxxxxxx, counsel to Landmark, dated the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent and Parent’s counsel. (d) The stockholders of Landmark listed on Exhibit 4.23 hereto, acting by non-unanimous written consent, shall have adopted and approved this Agreement and the transactions contemplated hereby, including the Merger, as and to the extent required by, and in accordance with, the DGCL or other applicable Law, and by the provisions of any governing instruments. (e) Prior to the execution of this Agreement, Parent shall have received in writing from Landmark an undertaking by each Person, if any, that Landmark, after discussions with counsel for Landmark, believes may be an Affiliate of Landmark, in form satisfactory to Parent that no shares of Parent Common Stock received or to be received by such Affiliate pursuant to the Merger will be sold or disposed of except pursuant to an effective registration statement under the Securities Act or in accordance with the provisions of paragraph (d) of Rule 145 under the Securities Act or another exemption from registration under the Securities Act. (f) There shall not be pending or threatened by any Governmental Authority any suit, action or proceeding (or by any other Person any pending suit, action or proceeding which has a reasonable likelihood of success) (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement or seeking to obtain from Parent or Merger Subsidiary any damages that are material in relation to Parent and Merger Subsidiary taken as a whole, (ii) seeking to prohibit or limit the ownership or operation by the Surviving Corporation or any of its Subsidiaries of any material portion of the Business or assets of Landmark, Parent or any of their respective Subsidiaries, to dispose of or hold separate any material portion of the Business or assets of Landmark, Parent or any of their respective Subsidiaries, as a result of the Merger or any of the other transactions contemplated by this Agreement or (iii) seeking to prohibit the Surviving Corporation or any of its Subsidiaries from effectively controlling in any material respect the Business or operations of Landmark or its respective Subsidiaries. (g) There shall have been no events, changes or effects with respect to Landmark having or which could reasonably be expected to have a Material Adverse Effect on Landmark. (h) All proceedings, corporate or other, to be taken by Landmark 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 Landmark 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. (i) Parent shall have received from its financial advisor, Xxxxxxxxx & Company LLC, a written opinion, dated as of August 12, 2002, that the acquisition of Landmark by Parent in exchange for the Merger Consideration to be paid by Parent to the holders of Landmark Shares is fair, from a financial point of view, to Parent and the stockholders of Parent, other than Xxxxxx X. Xxxx and his Affiliates. (j) Landmark shall have the Minimum Cash after payment by Landmark of the fees and expenses that Landmark is responsible for paying, reserving or escrowing pursuant to Section 7.6 hereof or Section 6.1(m) or any other provision hereof. (k) The Governance Agreement shall have been duly executed by the parties thereto. (l) Landmark shall have transferred the Retained Assets to an Affiliate of Landmark, as set forth in the Agreement for Purchase of Assets attached hereto as Exhibit A.Section 8.2.

CONDITIONS PRECEDENT TO CONSUMMATION OF THE. MERGER Section 8.1. Conditions Precedent to Obligations Restructuring The occurrence of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are Plan Effective Date shall be subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions precedent: • The Bankruptcy Court shall have entered the order confirming the Plan (a) the “Confirmation Order”), and such Confirmation Order shall be a Final Order and in full force and effect; • Reorganized Frontier’s New Common Stock shall have been issued; • The representations Plan Supplement, including any amendments, modifications, or supplements to the documents, schedules, or exhibits included therein shall have been filed with the Bankruptcy Court; • Any and warranties all requisite regulatory approvals, and any other authorizations, consents, rulings, or documents required to implement and effectuate the Plan shall have been obtained; • Payment of Landmark contained all professional fees and other amounts contemplated to be paid under the RSA and the Plan; • The Debtors shall have used commercially reasonable best efforts to analyze and develop a detailed report regarding Virtual Separation; and • Such other conditions as mutually agreed by the Company Parties and the Required Consenting Noteholders. Releases and Exculpation The releases to be included in the Plan will be consistent with those set forth in Annex 1 to this Term Sheet.13 Fiduciary Out Notwithstanding anything to the contrary herein, nothing in this Agreement (other than Term Sheet or any representations and warranties made as of a specific date) shall be true and correct as of the Closing Date in all material respects (except Definitive Documents shall require the Company Parties, nor any of the Company Parties’ directors, managers, or officers, to take or refrain from taking any action to the extent such person or persons determines based on advice of counsel that taking such action, or refraining from taking such action, as applicable, would be inconsistent with applicable law or its fiduciary obligations under applicable law; provided, that the Company Parties shall be required to notify the Consenting Noteholders promptly in the event of any representation or warranty is already qualified by materialitysuch determination, in which case it the Consenting Noteholders will have a termination right. The Definitive Documents shall provide that such agreements or undertakings, as applicable, shall be true terminable by the Company Parties and correct the Consenting Noteholders where any Company Parties’ board of directors or similar governing body, determines in all respects), except as otherwise contemplated or permitted by this Agreementgood faith and upon the advice of counsel that continued performance would be inconsistent with its fiduciary duties under applicable law. Corporate Governance Documents In connection with the Plan Effective Date, and Parent shall have received a certificate to that effect dated the Closing Date and executed on behalf of Landmark by the chief executive officer. (bconsistent with section 1123(a)(6) Each of the covenantsBankruptcy Code, agreements Reorganized Frontier shall adopt customary corporate governance documents, including amended and obligations restated certificates of Landmark 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 at or before the Effective Timeincorporation, bylaws, and at the Closing, Landmark shall have delivered to Parent a certificate to that effect. (c) Parent shall have received the opinion of Hunton & Xxxxxxxx, counsel to Landmark, dated the Closing Date and addressed to Parent, reasonably satisfactory shareholders’ agreements in form and substance reasonably acceptable to Parent and Parent’s counsel. (d) The stockholders of Landmark listed on Exhibit 4.23 hereto, acting by non-unanimous written consent, shall have adopted and approved this Agreement the Company Parties and the transactions contemplated herebyRequired Consenting Noteholders. Such governance documents shall contain indemnification provisions no less favorable than those contained in the existing governance documents of the Company Parties. Director, including the MergerOfficer, as and to the extent required byManager, and in accordance withEmployee Insurance On the Plan Effective Date, the DGCL or other applicable LawDebtors shall be deemed to have assumed all unexpired directors’, managers’, and by the provisions officers’ liability insurance policies. Exemption from SEC Registration The issuance of any governing instruments. (e) Prior to the execution of this Agreement, Parent shall have received in writing from Landmark an undertaking by each Person, if any, that Landmark, after discussions with counsel for Landmark, believes may be an Affiliate of Landmark, in form satisfactory to Parent that no shares of Parent Common Stock received or to be received by such Affiliate pursuant to the Merger will be sold or disposed of except pursuant to an effective registration statement under the Securities Act or in accordance with the provisions of paragraph (d) of Rule 145 under the Securities Act or another exemption from registration under the Securities Act. (f) There shall not be pending or threatened by any Governmental Authority any suit, action or proceeding (or by any other Person any pending suit, action or proceeding which has a reasonable likelihood of success) (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement or seeking to obtain from Parent or Merger Subsidiary any damages that are material in relation to Parent and Merger Subsidiary taken as a whole, (ii) seeking to prohibit or limit the ownership or operation by the Surviving Corporation or any of its Subsidiaries of any material portion of the Business or assets of Landmark, Parent or any of their respective Subsidiaries, to dispose of or hold separate any material portion of the Business or assets of Landmark, Parent or any of their respective Subsidiaries, as a result of the Merger or any of the other transactions contemplated by this Agreement or (iii) seeking to prohibit the Surviving Corporation or any of its Subsidiaries from effectively controlling in any material respect the Business or operations of Landmark or its respective Subsidiaries. (g) There shall have been no events, changes or effects with respect to Landmark having or which could reasonably be expected to have a Material Adverse Effect on Landmark. (h) All proceedings, corporate or other, to be taken by Landmark all securities in connection with the transactions contemplated by this Agreement, and all documents incident thereto, shall Plan will be reasonably satisfactory in form and substance to Parent and Parent’s counsel, and Landmark 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. (i) Parent shall have received from its financial advisor, Xxxxxxxxx & Company LLC, a written opinion, dated as of August 12, 2002, that the acquisition of Landmark by Parent in exchange for the Merger Consideration to be paid by Parent exempt to the holders of Landmark Shares is fair, from a financial point of view, to Parent and the stockholders of Parent, other than Xxxxxx X. Xxxx and his Affiliates. (j) Landmark shall have the Minimum Cash after payment by Landmark extent permitted under section 1145 of the fees Bankruptcy Code and expenses that Landmark is responsible for paying, reserving or escrowing otherwise pursuant to Section 7.6 hereof or Section 6.1(m4(a)(2) or any other provision hereof. (k) The Governance Agreement shall have been duly executed by of the parties thereto. (l) Landmark shall have transferred the Retained Assets to an Affiliate Securities Act of Landmark1933, as set forth in the Agreement for Purchase of Assets attached hereto as Exhibit A.Section 8.2amended.

CONDITIONS PRECEDENT TO CONSUMMATION OF THE. MERGER Section 8.1. Conditions Precedent to Obligations Plan The consummation of Parent the Plan and Merger Subsidiary. The obligations the occurrence of Parent and Merger Subsidiary to consummate the Merger are Plan Effective Date shall be subject to the satisfaction or waiver at or prior of certain conditions precedent customary in transactions of the type described herein, including the following: • The RSA shall remain in full force and effect and shall not have been terminated. • The Final DIP Order shall remain in full force and effect and no event of default shall have occurred and be continuing under the DIP Facility. • All conditions precedent to the Effective Time effectiveness of the following Exit ABL Facility having terms and conditions precedent: (a) consistent with this Term Sheet and otherwise consistent with the RSA in all respects shall have been satisfied or duly waived. • The representations final version of the Plan supplement and warranties all of Landmark the schedules, documents, and exhibits contained in this Agreement (therein, and all other than any representations schedules, documents, supplements, and warranties made as of a specific date) exhibits to the Plan, shall be true and correct as of consistent with the Closing Date in all material respects (except to the extent any representation or warranty is already qualified by materiality, in which case it shall be true and correct RSA in all respects), except as otherwise contemplated or permitted by this Agreement, and Parent shall have received a certificate to that effect dated the Closing Date and executed on behalf of Landmark by the chief executive officer. (b) Each of the covenants, agreements and obligations of Landmark to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed filed in a manner consistent with the RSA in all material respects at or before respects. • The Debtors and, in respect of any necessary anti-trust approvals, the Effective Time, and at the Closing, Landmark applicable Consenting Noteholders shall have delivered obtained all authorizations, consents, regulatory approvals, rulings, or documents that are necessary to Parent a certificate to that effect. (c) Parent shall have received implement and effectuate the opinion of Hunton & Xxxxxxxx, counsel to Landmark, dated the Closing Date Plan and addressed to Parent, reasonably satisfactory in form and substance to Parent and Parent’s counsel. (d) The stockholders of Landmark listed on Exhibit 4.23 hereto, acting by non-unanimous written consent, shall have adopted and approved this Agreement and the transactions contemplated hereby, including the Merger, as and to the extent required by, and in accordance with, the DGCL or other applicable Law, and by the provisions of any governing instruments. (e) Prior to the execution of this Agreement, Parent shall have received in writing from Landmark an undertaking by each Person, if any, that Landmark, after discussions with counsel for Landmark, believes may be an Affiliate of Landmark, in form satisfactory to Parent that no shares of Parent Common Stock received or to be received by such Affiliate pursuant to the Merger will be sold or disposed of except pursuant to an effective registration statement under the Securities Act or in accordance with the provisions of paragraph (d) of Rule 145 under the Securities Act or another exemption from registration under the Securities Act. (f) There shall not be pending or threatened by any Governmental Authority any suit, action or proceeding (or by any other Person any pending suit, action or proceeding which has a reasonable likelihood of success) (i) challenging or seeking to restrain or prohibit the consummation of the Merger or any of the other transactions contemplated by this Agreement or seeking to obtain from Parent or Merger Subsidiary any damages that are material in relation to Parent and Merger Subsidiary taken as a whole, (ii) seeking to prohibit or limit the ownership or operation by the Surviving Corporation or any of its Subsidiaries of any material portion of the Business or assets of Landmark, Parent or any of their respective Subsidiaries, to dispose of or hold separate any material portion of the Business or assets of Landmark, Parent or any of their respective Subsidiaries, as a result of the Merger or any of the other transactions contemplated by this Agreement or (iii) seeking to prohibit the Surviving Corporation or any of its Subsidiaries from effectively controlling in any material respect the Business or operations of Landmark or its respective SubsidiariesRestructuring. (g) There • The Bankruptcy Court shall have been no events, changes or effects with respect to Landmark having or which could reasonably be expected to have a Material Adverse Effect on Landmark. (h) All proceedings, corporate or other, to be taken by Landmark in connection with entered the transactions contemplated by this Agreement, and all documents incident thereto, shall be reasonably satisfactory Confirmation Order in form and substance to Parent and Parent’s counsel, and Landmark 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 consistent with the transactions contemplated by this AgreementRSA in all respects and such order shall be a final order. (i) Parent shall have received from its financial advisor, Xxxxxxxxx & Company LLC, a written opinion, dated as of August 12, 2002, that the acquisition of Landmark by Parent in exchange for the Merger Consideration to be paid by Parent to the holders of Landmark Shares is fair, from a financial point of view, to Parent and the stockholders of Parent, other than Xxxxxx X. Xxxx and his Affiliates. (j) Landmark shall have the Minimum Cash after payment by Landmark of the • All fees and expenses that Landmark is responsible for paying, reserving or escrowing (including the fees payable pursuant to Section 7.6 hereof or Section 6.1(mSections 8(f) or any other provision hereof. (kand 18 of the RSA, the DIP Backstop Fee and the DIP Exit Fee) The Governance Agreement shall have been duly executed paid in full in accordance with the RSA and the DIP Credit Agreement. The conditions precedent may be waived by the parties theretoDebtors with the consent of the Required Consenting Noteholders. (l) Landmark Director and Officer Indemnification Any obligations of the Debtors pursuant to their organizational documents to indemnify current and former officers, directors, agents, and/or employees shall have transferred not be discharged or impaired by confirmation of the Retained Assets Plan. Director and officer insurance will continue in place for the directors and officers of all of the Debtors during the Chapter 11 Cases on existing or comparable terms. To the extent not previously obtained, on or prior to an Affiliate of Landmarkthe Plan Effective Date, the Debtors shall acquire a standard tail policy covering any director and officer at any time prior to the Plan Effective Date in at least the scope and amount as set forth in currently maintained by the Agreement Debtors for Purchase of Assets attached hereto as Exhibit A.Section 8.2six years after the Plan Effective Date. Any such tail policy shall not be impaired or terminated by the Plan.

CONDITIONS PRECEDENT TO CONSUMMATION OF THE. MERGER Section 8.1. Conditions Precedent to Obligations Restructuring The occurrence of Parent and Merger Subsidiary. The obligations of Parent and Merger Subsidiary to consummate the Merger are Plan Effective Date shall be subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions precedent: (i) The Bankruptcy Court shall have (a) The representations entered the Confirmation Order confirming the Plan, (b) entered an order approving the Disclosure Statement and warranties of Landmark contained RSA, and (c) entered the DIP Orders approving the DIP Facilities, and all such orders in this Agreement (other than any representations and warranties made as of a specific datea) – (c) shall be true and correct as of the Closing Date in all material respects (except to the extent any representation or warranty is already qualified by materiality, in which case it shall be true and correct in all respects), except as otherwise contemplated or permitted by this Agreement, and Parent shall have received a certificate to that effect dated the Closing Date and executed on behalf of Landmark by the chief executive officer. (b) Each of the covenants, agreements and obligations of Landmark to be performed at or before the Effective Time pursuant to consistent with the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time, and at the Closing, Landmark shall have delivered to Parent a certificate to that effect. (c) Parent shall have received the opinion of Hunton & Xxxxxxxx, counsel to Landmark, dated the Closing Date and addressed to Parent, reasonably satisfactory RSA in form and substance to Parent and Parent’s counsel. (d) The stockholders of Landmark listed on Exhibit 4.23 hereto, acting by non-unanimous written consent, shall have adopted and approved this Agreement and the transactions contemplated hereby, including the Merger, as and reasonably acceptable to the extent required byRequired Consenting Lenders, and in accordance with, the DGCL or other applicable Law, and by the provisions of any governing instruments. (e) Prior to the execution of this Agreement, Parent shall have received in writing from Landmark an undertaking by each Person, if any, that Landmark, after discussions with counsel for Landmark, believes may be an Affiliate of Landmark, in form satisfactory to Parent that no shares of Parent Common Stock received or to be received by such Affiliate pursuant to the Merger will be sold or disposed of except pursuant to an effective registration statement under the Securities Act or in accordance with the provisions of paragraph (d) of Rule 145 under the Securities Act or another exemption from registration under the Securities Act. (f) There shall not be stayed, modified, revised, or vacated and shall not be subject to any pending appeal; (ii) The RSA shall remain in full force and effect and shall not have been terminated, and the parties thereto shall be in compliance therewith; (iii) The DIP Term Loan Facility and the DIP Revolving Loan Facility shall remain in full force and effect and shall not have been terminated, and the parties thereto shall be in compliance therewith (including, without limitation, the minimum liquidity covenants contained therein); (iv) The 2020 Term Loans have been indefeasibly repaid in full in cash; (v) The Plan Supplement, including any amendments, modifications, or threatened by any Governmental Authority any suitsupplements to the documents, action schedules, or proceeding exhibits included therein shall have been filed with the Bankruptcy Court and be consistent with the RSA and this Term Sheet and otherwise reasonably acceptable to the Debtors and the Required Consenting Lenders; provided, that the corporate governance documents for the Reorganized Debtors shall comply with the terms set forth in the Governance Term Sheet and shall be acceptable solely to the Required Consenting 1L Lenders and the Required Consenting 2L Lenders; (vi) The conditions precedent to the effectiveness of the New 1L Term Loan Facility and the New 1L Revolving Facility shall have been satisfied or by duly waived (including, without limitation, the minimum liquidity covenants contained therein); (vii) The structure, terms and conditions of the New Securitization Facility shall have been agreed as contemplated in the section “Post-Petition Securitized Debt Facility” above and the conditions precedent to the effectiveness of the New Securitization Facility shall have been satisfied or duly waived; (viii) Any and all requisite regulatory approvals, and any other Person any pending suitauthorizations, action consents, rulings, or proceeding which has a reasonable likelihood documents required to implement and effectuate the Plan shall have been obtained; (ix) Payment of successall Consenting Lenders’ Professional Fees (as defined herein) and other amounts contemplated to be paid under the RSA and the Plan; (x) Consenting 2L Lenders, holders of DIP Term Loan Claims, and their Affiliates shall not have acquired (i) challenging or seeking to restrain or prohibit the consummation more than 25% of the Merger or any outstanding principal amount of the other transactions contemplated by this Agreement or seeking to obtain from Parent or Merger Subsidiary any damages that are material in relation to Parent and Merger Subsidiary taken as a whole1L Revolving Loan Claims, (ii) seeking to prohibit or limit the ownership or operation by the Surviving Corporation or any of its Subsidiaries of any material portion more than 25% of the Business or assets outstanding principal amount of Landmark, Parent or any of their respective Subsidiaries, to dispose of or hold separate any material portion of the Business or assets of Landmark, Parent or any of their respective Subsidiaries, as a result of the Merger or any of the other transactions contemplated by this Agreement 1L Term Loan Claims or (iii) seeking to prohibit more than 25% of the Surviving Corporation or any combined outstanding principal amount of its Subsidiaries from effectively controlling in any material respect 1L Term Loan Claims and DIP Term Loan Claims; and (xii) Such other conditions as mutually agreed by the Business or operations of Landmark or its respective Subsidiaries. (g) There shall have been no events, changes or effects with respect to Landmark having or which could reasonably be expected to have a Material Adverse Effect on Landmark. (h) All proceedings, corporate or other, to be taken by Landmark 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 Landmark 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. (i) Parent shall have received from its financial advisor, Xxxxxxxxx & Company LLC, a written opinion, dated as of August 12, 2002, that the acquisition of Landmark by Parent in exchange for the Merger Consideration to be paid by Parent to the holders of Landmark Shares is fair, from a financial point of view, to Parent Parties and the stockholders of Parent, other than Xxxxxx X. Xxxx and his Affiliates. (j) Landmark shall have the Minimum Cash after payment by Landmark of the fees and expenses that Landmark is responsible for paying, reserving or escrowing pursuant to Section 7.6 hereof or Section 6.1(m) or any other provision hereof. (k) The Governance Agreement shall have been duly executed by the parties thereto. (l) Landmark shall have transferred the Retained Assets to an Affiliate of Landmark, as set forth in the Agreement for Purchase of Assets attached hereto as Exhibit A.Section 8.2Required Consenting Lenders.