Conditions Precedent to Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement are also subject to the satisfaction at or prior to Closing of each of the following conditions, any one or more of which may be waived by the Purchaser in its sole discretion: (i) all representations and warranties and covenants made by the Seller in this Agreement shall be true and correct and shall have been performed in all material respects (in the case of representations and warranties) and in all respects (in the case of covenants) on and as of the date hereof and the Closing Date as though restated on and as of such date (except in the case of any representation or warranty that by its terms is made as of a date specified therein, which shall be accurate as of such date), and the Seller shall provide a certificate to the Purchaser at Closing in the form of EXHIBIT VIII confirming that fact; (ii) the Persons listed on EXHIBIT IX shall have tendered their resignations from their respective offices; (iii) the Seller shall have made available to the Purchaser for its 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 delivered to the Purchaser in reasonably satisfactory form evidence of compliance by the Seller, Arbel and PSB with all preemptive or similar rights contained in the statuts of the Companies or in any shareholders' agreement of the Companies; (iv) no Judgment or Law issued or enacted by any court or governmental or regulatory authority, which declares this Agreement invalid in any material respect or prevents the consummation of the transactions contemplated hereby shall be in effect; and no action or proceeding before any court or governmental or regulatory authority, shall have been instituted or by any Person (other than the Purchaser or any of its Affiliates) which seeks to prevent or delay the consummation of the transactions contemplated by this Agreement or which challenges the validity 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-Xxxxxxxx Xxxstant and Patrxxx Xxxxxxxxx xxxll 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 (proxxxxxx xx xxxxx)<-0- 00>xxx xxx 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. (x) The offices rental agreements between Cofimeta and Etablissements Arbel dated October 30, 1997 and between Cofimeta and Waeles Gestion dated June 15, 1998 shall have been amended in accordance with EXHIBIT XII hereof, providing for a term expiring on December 31, 1999 (with a right of earlier termination upon 120 days' notice) and for rent equal to the 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 current form ; (i) The consolidated financial statements (including the balance sheet, the 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 audited by PricewaterhouseCoopers at the latest within one month after the latter of (x) the date of this Agreement and (y) the 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 not show any material discrepancy with the consolidated June 30, 1998 Financial Statements; (b) Should PricewaterhouseCoopers not have audited the September 30, 1998 Financial Statements by the deadline set forth in Section 3.1(xi)(a)(i) hereof, the September 30, 1998 Financial Statements shall be deemed not to show any material discrepancy with the consolidated June 30,
Appears in 1 contract
Samples: Share and Debt Purchase and Sale Agreement (Oxford Automotive Inc)
Conditions Precedent to Obligations of the Purchaser. The obligations obligation of the Purchaser to consummate purchase the transactions contemplated by this Agreement are also Preferred Shares and Warrants hereunder is subject to the satisfaction at or prior to Closing of each of the following conditions, any one conditions on or more of which may be waived by before the Purchaser in its sole discretionClosing Date:
(ia) all The representations and warranties and covenants made by the Seller Company herein and in this the Registration Rights Agreement, the Warrant Certificate and the Shareholders Agreement shall be true and correct and shall have been performed in all material respects (in the case of representations and warranties) and in all respects (in the case of covenants) on and as of the date hereof and the Closing Date with the same effect as though restated such representations and warranties had been made on and as of such date date.
(except b) The Company shall have performed and complied in all material respects with all covenants, agreements and conditions set forth or contemplated herein and in the case Registration Rights Agreement, the Warrant Certificate and the Shareholders Agreement required to be performed or complied with by it on or prior to the Closing Date.
(c) The Company shall have filed the Certificate of Amendment with the Secretary of State of New York and the Certificate of Amendment shall be in full force and effect.
(d) The Company shall have executed and delivered the 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 representation federal, state, local or warranty foreign governmental authority, agency, court or other body required to be taken, given or obtained that are necessary in connection with the transactions contemplated herein and in the other documents related hereto, shall have been taken, given or obtained, be in full force and effect and not be subject to any waiting periods or any pending proceedings or appeals, administrative, judicial or otherwise.
(g) Since the date of this Agreement, there shall not have occurred any change, occurrence or circumstance in or affecting the business, assets, liabilities, financial condition, operations or prospects of the 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 Company to be filled on the Closing Date by its terms is made 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 Purchaser may agree to.
(j) On or before the Closing Date, the Purchaser shall have received all of a date specified therein, which shall be accurate as of such date), the following from the Company in form and substance reasonably satisfactory to the Purchaser:
(i) Certificates representing the Preferred Shares and the Seller shall provide a certificate Warrant Certificate issued to the Purchaser at Closing in the form of EXHIBIT VIII confirming that factaccordance with Section 2.1;
(ii) Certificate of the Persons listed 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 reasonably satisfactory to the Purchaser, of the 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 absence of proceedings for the merger, consolidation, 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 EXHIBIT IX shall have tendered their resignations from their respective officesthe Company's behalf;
(iii) Certificate of the Seller shall have made available to Secretary of each of the Purchaser for its review at least ten (10) full Business Days prior to Subsidiaries dated as of the Closing Date and at Closing certifying as to (A) the share registers and other statutory books Certificate of Incorporation of such Person, recently certified by the appropriate governmental authority of the Companiesjurisdiction in which such Person is organized, as duly filed and shall have delivered to currently in full force and effect without further amendment; (B) the Purchaser by-laws of such Person as currently in reasonably satisfactory form evidence full force and effect; (C) the absence of compliance by proceedings for the Sellermerger, Arbel and PSB with all preemptive consolidation, sale of assets, dissolution, liquidation or similar rights contained in proceedings with respect to such Person; and (D) the statuts incumbency and signature of the Companies or in any shareholders' agreement of the Companiesindividuals authorized to execute and deliver documents on such Person's behalf;
(iv) no Judgment or Law issued or enacted Certificate executed by any court or governmental or regulatory authority, which declares this Agreement invalid in any material respect or prevents the consummation an officer of the transactions contemplated hereby shall be in effect; and no action or proceeding before any court or governmental or regulatory authority, shall have been instituted or by any Person (other than the Purchaser or any of its Affiliates) which seeks to prevent or delay the consummation Company dated as of the transactions contemplated by Closing Date, certifying that the representations and warranties of the Company contained in this Agreement, the Registration Rights Agreement, the Warrant Certificate and the Shareholders Agreement or which challenges are true and correct as of the validity or enforceability Closing Date with the same effect as though such representations and warranties had been made on and as of this Agreement (other than a frivolous or vexatious application)such date;
(v) during the period from July 1st, 1998, An opinion addressed to the Purchaser and dated as of the Closing DateDate of Xxxxxx & Xxxx, there shall not have been any change special counsel to the Company, substantially in the assets, properties, business, operations, prospects or financial condition form of any of the Companies which individually or in the aggregate would constitute a Material Adverse Effect;Annex V hereto; and
(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-Xxxxxxxx Xxxstant and Patrxxx Xxxxxxxxx xxxll have remained employed by the Companies;
(viii) Valfond shall have delivered signed non-competition agreements in the form of EXHIBIT XI between Such additional documentation as 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 (proxxxxxx xx xxxxx)<-0- 00>xxx xxx 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 rightmay reasonably request.
(x) The offices rental agreements between Cofimeta and Etablissements Arbel dated October 30, 1997 and between Cofimeta and Waeles Gestion dated June 15, 1998 shall have been amended in accordance with EXHIBIT XII hereof, providing for a term expiring on December 31, 1999 (with a right of earlier termination upon 120 days' notice) and for rent equal to the 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 current form ;
(i) The consolidated financial statements (including the balance sheet, the 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 audited by PricewaterhouseCoopers at the latest within one month after the latter of (x) the date of this Agreement and (y) the 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 not show any material discrepancy with the consolidated June 30, 1998 Financial Statements;
(b) Should PricewaterhouseCoopers not have audited the September 30, 1998 Financial Statements by the deadline set forth in Section 3.1(xi)(a)(i) hereof, the September 30, 1998 Financial Statements shall be deemed not to show any material discrepancy with the consolidated June 30,
Appears in 1 contract
Samples: Convertible Preferred Stock and Warrant Purchase Agreement (Alcohol Sensors International LTD)
Conditions Precedent to Obligations of the Purchaser. The obligations obligation of the Purchaser to consummate purchase the transactions contemplated by this Agreement are also Preferred Shares and Warrants hereunder is subject to the satisfaction at or prior to Closing of each of the following conditions, any one conditions on or more of which may be waived by before the Purchaser in its sole discretionClosing Date:
(ia) all The representations and warranties and covenants made by the Seller Company herein and in this the Registration Rights Agreement, the Warrant Certificate and the Shareholders Agreement shall be true and correct and shall have been performed in all material respects (in the case of representations and warranties) and in all respects (in the case of covenants) on and as of the date hereof and the Closing Date with the same effect as though restated such representations and warranties had been made on and as of such date date.
(except b) The Company shall have performed and complied in all material respects with all covenants, agreements and conditions set forth or contemplated herein and in the case Registration Rights Agreement, the Warrant Certificate and the Shareholders Agreement required to be performed or complied with by it on or prior to the Closing Date.
(c) The Company shall have filed the Certificate of Amendment with the Secretary of State of New York and the Certificate of Amendment shall be in full force and effect.
(d) The Company shall have executed and delivered the 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 representation federal, state, local or warranty foreign governmental authority, agency, court or other body required to be taken, given or obtained that are necessary in connection with the transactions contemplated herein and in the other documents related hereto, shall have been taken, given or obtained, be in full force and effect and not be subject to any waiting periods or any pending proceedings or appeals, administrative, judicial or otherwise.
(g) Since the date of this Agreement, there shall not have occurred any change, occurrence or circumstance in or affecting the business, assets, liabilities, financial condition, operations or prospects of the 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 Company to be filled on the Closing Date by its terms is made 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 Purchaser may agree to.
(j) On or before the Closing Date, the Purchaser shall have received all of a date specified therein, which shall be accurate as of such date), the following from the Company in form and substance reasonably satisfactory to the Purchaser:
(i) Certificates representing the Preferred Shares and the Seller shall provide a certificate Warrant Certificate issued to the Purchaser at Closing in the form of EXHIBIT VIII confirming that factaccordance with Section 2.1;
(ii) Certificate of the Persons listed 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 reasonably satisfactory to the Purchaser, of the 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 absence of proceedings for the merger, consolidation, 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 EXHIBIT IX shall have tendered their resignations from their respective officesthe Company's behalf;
(iii) Certificate of the Seller shall have made available to Secretary of each of the Purchaser for its review at least ten (10) full Business Days prior to Subsidiaries dated as of the Closing Date and at Closing certifying as to (A) the share registers and other statutory books Certificate of Incorporation of such Person, recently certified by the appropriate governmental authority of the Companiesjurisdiction in which such Person is organized, as duly filed and shall have delivered to currently in full force and effect without further amendment; (B) the Purchaser by-laws of such Person as currently in reasonably satisfactory form evidence full force and effect; (C) the absence of compliance by proceedings for the Sellermerger, Arbel and PSB with all preemptive consolidation, sale of assets, dissolution, liquidation or similar rights contained in proceedings with respect to such Person; and (D) the statuts incumbency and signature of the Companies or in any shareholders' agreement of the Companiesindividuals authorized to execute and deliver documents on such Person's behalf;
(iv) no Judgment or Law issued or enacted Certificate executed by any court or governmental or regulatory authority, which declares this Agreement invalid in any material respect or prevents the consummation an officer of the transactions contemplated hereby shall be in effect; and no action or proceeding before any court or governmental or regulatory authority, shall have been instituted or by any Person (other than the Purchaser or any of its Affiliates) which seeks to prevent or delay the consummation Company dated as of the transactions contemplated by Closing Date, certifying that the representations and warranties of the Company contained in this Agreement, the Registration Rights Agreement, the Warrant Certificate and the Shareholders Agreement or which challenges are true and correct as of the validity or enforceability Closing Date with the same effect as though such representations and warranties had been made on and as of this Agreement (other than a frivolous or vexatious application)such date;
(v) during the period from July 1st, 1998, An opinion addressed to the Purchaser and dated as of the Closing DateDate of Bergxx & Xaul, there shall not have been any change xxecial counsel to the Company, substantially in the assets, properties, business, operations, prospects or financial condition form of any of the Companies which individually or in the aggregate would constitute a Material Adverse Effect;Annex V hereto; and
(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-Xxxxxxxx Xxxstant and Patrxxx Xxxxxxxxx xxxll have remained employed by the Companies;
(viii) Valfond shall have delivered signed non-competition agreements in the form of EXHIBIT XI between Such additional documentation as 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 (proxxxxxx xx xxxxx)<-0- 00>xxx xxx 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 rightmay reasonably request.
(x) The offices rental agreements between Cofimeta and Etablissements Arbel dated October 30, 1997 and between Cofimeta and Waeles Gestion dated June 15, 1998 shall have been amended in accordance with EXHIBIT XII hereof, providing for a term expiring on December 31, 1999 (with a right of earlier termination upon 120 days' notice) and for rent equal to the 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 current form ;
(i) The consolidated financial statements (including the balance sheet, the 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 audited by PricewaterhouseCoopers at the latest within one month after the latter of (x) the date of this Agreement and (y) the 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 not show any material discrepancy with the consolidated June 30, 1998 Financial Statements;
(b) Should PricewaterhouseCoopers not have audited the September 30, 1998 Financial Statements by the deadline set forth in Section 3.1(xi)(a)(i) hereof, the September 30, 1998 Financial Statements shall be deemed not to show any material discrepancy with the consolidated June 30,
Appears in 1 contract
Samples: Convertible Preferred Stock and Warrant Purchase Agreement (American International Group Inc)
Conditions Precedent to Obligations of the Purchaser. The obligations of the Purchaser under this Agreement to consummate the transactions contemplated by this Agreement are also hereby to be consummated at the Closing shall be subject to the satisfaction satisfaction, at or prior to Closing the Closing, of each all of the following conditions, any one or more of which may be waived by in writing at the option of Purchaser in its sole discretion:
(ia) all All representations and warranties of the Company and covenants made by the Seller its Subsidiaries in this Agreement or in any exhibit, schedule or document delivered pursuant hereto shall be true true, complete and correct in all respects (with respect to representations and shall have been performed warranties qualified or limited by materiality or Material Adverse Effect) or in all material respects (in the case of with respect to representations and warranties) warranties not so qualified or limited), in each case when made and in all respects (in the case of covenants) on and as of the date hereof and the Closing Date as though restated if made on and as of the Closing Date, other than any such date (except in the case of any representation representations or warranty warranties that by its terms is made expressly speak only as of a date specified thereinan earlier date, which shall be accurate 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), and the Seller shall provide a certificate to the Purchaser at Closing in the form of EXHIBIT VIII confirming that fact;.
(iib) All of the Persons listed terms, covenants and conditions to be complied with and performed by the Company or its Subsidiaries on EXHIBIT IX shall have tendered their resignations from their respective offices;
(iii) the Seller shall have made available to the Purchaser for its review at least ten (10) full Business Days or prior to the Closing Date and at Closing the share registers and other statutory books shall have been complied with or performed in all material respects.
(c) Purchaser shall have received a certificate or certificates, dated as of the CompaniesClosing 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 shall have delivered to the Purchaser in reasonably satisfactory form evidence of compliance by the Seller, Arbel and PSB with all preemptive or similar rights contained in the statuts of the Companies or in any shareholders' agreement of the Companies;
(iv) no Judgment or Law issued or enacted by any court or governmental or regulatory authority, which declares this Agreement invalid in any material respect or prevents the 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 in effect; and no action imposed on or proceeding before any court or governmental or regulatory authority, shall have been instituted or by any Person (other than the required of Purchaser or any of its AffiliatesAffiliates 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 seeks 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 delay 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 challenges results in a loss to the validity Company or enforceability 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 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 Agreement Section 5.1(k) (other than a frivolous 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 vexatious application);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.
(vl) during No event, events or circumstance shall have occurred since 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 date of the Companies which individually initial Schedules delivered pursuant to Exhibit E which, independently or in the aggregate would constitute 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;.
(vim) Valfond 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 purchased at par value executed and delivered the Arbel Debt from Cofimeta documents required to be executed and set off the amount delivered by it pursuant to Section 1.6 hereof.
(o) The Company shall have, and shall have caused each 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-Xxxxxxxx Xxxstant and Patrxxx Xxxxxxxxx xxxll have remained employed by the Companies;
(viii) Valfond shall have delivered signed non-competition agreements in the form of EXHIBIT XI between the Purchaser other U.S. Debtors, and each of Groupe Valois and Arbel Industriethe U.S. Debtors shall have, all in respect obtained (i) the modifications of the Restricted Business;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.
(ixp) the Seller The Company shall have provided Purchaser with evidence reasonably satisfactory to Purchaser that the Purchaser total aggregate amount of Multiemployer Withdrawal Liability, (the calculation of which, for its review at least thirty (30) full Business Days prior to each multiemployer plan, shall be made as of each plan's last plan year end), shall not exceed the Closing Date (i) a certified copy Maximum Permitted Multiemployer Withdrawal Liability Amount as of the duly adopted resolutions of Effective Date, and the Board of Directors of Arbel Company and PSB approving the transfer of the Shares held at the date hereof its Subsidiaries shall have rejected all single employer pension plans as contemplated by Arbel Section 4.8 and PSB in Cofimeta and (ii) a certified copy of extracts of the promises to sell (proxxxxxx xx xxxxx)<-0- 00>xxx xxx 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 rightSection 4.10.
(xq) The offices rental agreements between Cofimeta and Etablissements Arbel dated October 30, 1997 and between Cofimeta and Waeles Gestion dated June 15, 1998 transactions underlying the Canadian Restructuring shall have been amended in accordance with EXHIBIT XII hereofcompleted substantially on the terms contemplated hereby, providing for a term expiring on December 31including without limitation, 1999 (with a right of earlier termination upon 120 days' notice) and for rent equal to the 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 current form ;
(i) The consolidated financial statements (including the balance sheet, the 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 audited by PricewaterhouseCoopers at the latest within one month after the latter of (x) the date of this Agreement and (y) the 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 not show any material discrepancy with the consolidated June 30, 1998 Financial Statements;
(b) Should PricewaterhouseCoopers not have audited the September 30, 1998 Financial Statements by the deadline set forth in Section 3.1(xi)(a)(i) hereofExhibit G, such that the September 30, 1998 Financial Statements shall effective date of the Canadian Restructuring may be deemed not scheduled to show any material discrepancy be contemporaneous with the consolidated June 30,effective date of the U.S. Plan.
(r) The aggregate amount of all Exit Costs shall not exceed the Exit Cost Threshold.
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Conditions Precedent to Obligations of the Purchaser. The obligations of the Purchaser under this Agreement to consummate the transactions contemplated by this Agreement are also hereby to be consummated at the Closing shall be subject to the satisfaction satisfaction, at or prior to Closing the Closing, of each all of the following conditions, any one or more of which may be waived by in writing at the option of Purchaser in its sole discretion:
(ia) all All representations and warranties of the Company and covenants made by the Seller its Subsidiaries in this Agreement or in any exhibit, schedule or document delivered pursuant hereto shall be true true, complete and correct in all respects (with respect to representations and shall have been performed warranties qualified or limited by materiality or Material Adverse Effect) or in all material respects (in the case of with respect to representations and warranties) warranties not so qualified or limited), in each case when made and in all respects (in the case of covenants) on and as of the date hereof and the Closing Date as though restated if made on and as of the Closing Date, other than any such date (except in the case of any representation representations or warranty warranties that by its terms is made expressly speak only as of a date specified thereinan earlier date, which shall be accurate 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), and the Seller shall provide a certificate to the Purchaser at Closing in the form of EXHIBIT VIII confirming that fact;.
(iib) All of the Persons listed terms, covenants and conditions to be complied with and performed by the Company or its Subsidiaries on EXHIBIT IX shall have tendered their resignations from their respective offices;
(iii) the Seller shall have made available to the Purchaser for its review at least ten (10) full Business Days or prior to the Closing Date and at Closing the share registers and other statutory books shall have been complied with or performed in all material respects.
(c) Purchaser shall have received a certificate or certificates, dated as of the CompaniesClosing 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 shall have delivered to the Purchaser in reasonably satisfactory form evidence of compliance by the Seller, Arbel and PSB with all preemptive or similar rights contained in the statuts of the Companies or in any shareholders' agreement of the Companies;
(iv) no Judgment or Law issued or enacted by any court or governmental or regulatory authority, which declares this Agreement invalid in any material respect or prevents the 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 in effect; and no action imposed on or proceeding before any court or governmental or regulatory authority, shall have been instituted or by any Person (other than the required of Purchaser or any of its AffiliatesAffiliates 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 seeks 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 delay 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 challenges results in a loss to the validity Company or enforceability 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 Agreement Section 5.1(k) (other than a frivolous 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 vexatious application);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.
(vl) during No event, events or circumstance shall have occurred since 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 date of the Companies which individually initial Schedules delivered pursuant to Exhibit E which, independently or in the aggregate would constitute 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;.
(vim) Valfond 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 purchased at par value executed and delivered the Arbel Debt from Cofimeta documents required to be executed and set off the amount delivered by it pursuant to Section 1.6 hereof.
(o) The Company shall have, and shall have caused each 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-Xxxxxxxx Xxxstant and Patrxxx Xxxxxxxxx xxxll have remained employed by the Companies;
(viii) Valfond shall have delivered signed non-competition agreements in the form of EXHIBIT XI between the Purchaser other U.S. Debtors, and each of Groupe Valois and Arbel Industriethe U.S. Debtors shall have, all in respect obtained (i) the modifications of the Restricted Business;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.
(ixp) the Seller The Company shall have provided Purchaser with evidence reasonably satisfactory to Purchaser that the Purchaser total aggregate amount of Multiemployer Withdrawal Liability, (the calculation of which, for its review at least thirty (30) full Business Days prior to each multiemployer plan, shall be made as of each plan's last plan year end), shall not exceed the Closing Date (i) a certified copy Maximum Permitted Multiemployer Withdrawal Liability Amount as of the duly adopted resolutions of Effective Date, and the Board of Directors of Arbel Company and PSB approving the transfer of the Shares held at the date hereof its Subsidiaries shall have rejected all single employer pension plans as contemplated by Arbel Section 4.8 and PSB in Cofimeta and (ii) a certified copy of extracts of the promises to sell (proxxxxxx xx xxxxx)<-0- 00>xxx xxx 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 rightSection 4.10.
(xq) The offices rental agreements between Cofimeta and Etablissements Arbel dated October 30, 1997 and between Cofimeta and Waeles Gestion dated June 15, 1998 transactions underlying the Canadian Restructuring shall have been amended in accordance with EXHIBIT XII hereofcompleted substantially on the terms contemplated hereby, providing for a term expiring on December 31including without limitation, 1999 (with a right of earlier termination upon 120 days' notice) and for rent equal to the 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 current form ;
(i) The consolidated financial statements (including the balance sheet, the 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 audited by PricewaterhouseCoopers at the latest within one month after the latter of (x) the date of this Agreement and (y) the 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 not show any material discrepancy with the consolidated June 30, 1998 Financial Statements;
(b) Should PricewaterhouseCoopers not have audited the September 30, 1998 Financial Statements by the deadline set forth in Section 3.1(xi)(a)(i) hereofExhibit G, such that the September 30, 1998 Financial Statements shall effective date of the Canadian Restructuring may be deemed not scheduled to show any material discrepancy be contemporaneous with the consolidated June 30,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
