Common use of Conditions to Each Party’s Obligations to Effect the Closing Clause in Contracts

Conditions to Each Party’s Obligations to Effect the Closing. The respective obligations of each Party to effect the sale and purchase of the Purchased Assets and to consummate the other transactions contemplated by this Agreement shall be subject to the fulfillment at or prior to the Closing of the following conditions: (a) consummation of the transactions contemplated hereby would not violate any nonappealable Order, decree or judgment of the Bankruptcy Court or any other Governmental Authority having competent jurisdiction and there shall not be any Law or Order that makes consummation of the transactions contemplated hereby illegal or otherwise prohibited; (b) all filing and waiting periods applicable (including any extensions thereof) to the consummation of the transactions contemplated by this Agreement under the HSR Act shall have expired or been terminated; and (c) (x) the Bankruptcy Court shall have entered a sale order which shall be substantially in the form attached as Exhibit G hereto (or in such other form and with such other terms as may otherwise be agreed to in writing, or on the record at any hearing before the Bankruptcy Court, by the Buyer and the Seller, the “Sale Order”), which Sale Order shall provide that confirmation of any plan of reorganization shall not occur before the date that is two hundred eleven (211) days from the Petition Date, and no Order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date and (y) each of the conditions to the release of the DIP Term Loan Liens and the DIP ABL Liens (except with respect to the DIP ABL Indemnity Account set forth in the Sale Order) shall have been satisfied (each such term in this clause (y) having the meaning set forth in the Final Order Under 11 U.S.C. §§ 105, 361, 362, 363, and 507, and Bankruptcy Rules 2002, 4001, and 9014 (I) Authorizing Debtors to Use Cash Collateral, (II) Authorizing the Debtors to Obtain Postpetition Financing, and (III) Granting Adequate Protection to the Prepetition Secured Parties [ECF No. 587]).

Conditions to Each Party’s Obligations to Effect the Closing. The respective obligations of each Party party to effect the sale and purchase of the Purchased Assets and to consummate the other transactions contemplated by this Agreement shall be subject to the fulfillment at or prior to the Closing Date of the following conditions: (a) the waiting period under the HSR Act applicable to the consummation of the transactions sale of the Purchased Assets contemplated hereby would not violate any nonappealable Order, decree shall have expired or judgment of the Bankruptcy Court or any other Governmental Authority having competent jurisdiction and there shall not be any Law or Order that makes consummation of the transactions contemplated hereby illegal or otherwise prohibitedbeen terminated; (b) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the sale of a material part of the Purchased Assets contemplated hereby shall have been issued and remain in effect (each party agreeing to use its reasonable best efforts to have any such injunction, order or decree lifted) and no statute, rule or regulation shall have been enacted by any Governmental Entity which prohibits the consummation of the sale of the Purchased Assets; (c) other than as set forth in Section 8.2 or 8.3 for the FCC Consents and the FCC Analogous Consents, all filing and waiting periods applicable (including any extensions thereof) to consents of Governmental Entities required for the consummation of the transactions contemplated by this Agreement under the HSR Act shall have expired become Final Orders of the respective Governmental Entities; provided that it shall not be a condition to the Closing that a Final Order by any such Governmental Entity not include any adverse terms or been terminatedconditions unless such terms and/or conditions would, in the aggregate, create a Material Adverse Effect; and (cd) (x) on or before November 15, 2001, the Bankruptcy Court shall have entered a sale order which shall be substantially in the form attached as Exhibit G hereto (or in such other form and with such other terms as may otherwise be agreed to in writing, or on the record at any hearing before the Bankruptcy Court, by the Buyer and the Seller, the “Sale Order”), which Sale Order shall provide that confirmation of any plan of reorganization shall not occur before the date that is two hundred eleven (211) days from the Petition Date, and no Order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date and (y) each of the all conditions to the release of the DIP Term Loan Liens and the DIP ABL Liens (except with respect to the DIP ABL Indemnity Account set forth in contemplated by the Sale Order) Order to consummate the transactions contemplated hereby shall have been satisfied (each such term in this clause (y) having the meaning set forth in the Final Order Under 11 U.S.C. §§ 105, 361, 362, 363, and 507, and Bankruptcy Rules 2002, 4001, and 9014 (I) Authorizing Debtors to Use Cash Collateral, (II) Authorizing the Debtors to Obtain Postpetition Financing, and (III) Granting Adequate Protection to the Prepetition Secured Parties [ECF No. 587])satisfied.

Conditions to Each Party’s Obligations to Effect the Closing. The respective obligations of each Party party to effect the sale and purchase of the Purchased Assets and to consummate the other transactions contemplated by this Agreement Closing shall be subject to the fulfillment (or waiver by Buyer and Seller) at or prior to the Closing of the following conditions: (a) consummation No injunction or similar order by any court of the transactions contemplated hereby would not violate any nonappealable Order, decree or judgment of the Bankruptcy Court or any other Governmental Authority having competent jurisdiction and there shall not be any Law or Order within the United States that makes consummation of the transactions contemplated hereby illegal or otherwise prohibited; (b) all filing and waiting periods applicable (including any extensions thereof) to prohibits the consummation of the transactions contemplated by this Agreement or the APA shall have been entered and shall continue to be in effect, and no Law shall have been enacted, entered, promulgated, enforced or deemed applicable by any Governmental Entity that, in any case, prohibits or makes illegal the consummation of the transactions contemplated by this Agreement or the APA, and there shall not be instituted or pending any suit, action or proceeding in which any U.S. federal Governmental Entity is seeking to restrain or prohibit the consummation of the transactions contemplated by this Agreement or the APA and has a reasonable likelihood of success with respect thereto. (b) Any applicable waiting period under the HSR Act (and any extension thereof) relating to the Share Purchase shall have expired or been earlier terminated; and. (c) All conditions (xother than the Share Purchase, the transactions contemplated by the Tender Offer Agreement, and the accuracy of Buyer’s and Offeror’s representations and warranties contained in the Transaction Documents) to the Bankruptcy Court Refinancing and the NAI Guarantee and Lien Releases shall have entered a sale order which shall be substantially in the form attached as Exhibit G hereto (or in such other form and with such other terms as may otherwise be agreed to in writing, or on the record at any hearing before the Bankruptcy Court, by the Buyer been satisfied and the lenders thereunder shall have confirmed that they will fund the Refinancing upon delivery of a drawdown notice by Seller, the “Sale Order”), which Sale Order shall provide that confirmation of any plan of reorganization shall not occur before the date that is two hundred eleven . (211d) days from the Petition Date, and no Order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date and (y) each of Either the conditions to the release of Tender Offer or the DIP Term Loan Liens and the DIP ABL Liens (except with respect conditions to the DIP ABL Indemnity Account Issuance, in each case as set forth in Exhibit A to the Sale OrderTender Offer Agreement (other than the conditions in paragraph (e) thereof and conditions that by their terms cannot be satisfied until the consummation of the Tender Offer or Issuance, as applicable) shall have been satisfied or waived by the party or parties entitled to waive such conditions. (each such term in this clause (ye) having UCC-3 termination statements and other evidence reasonably satisfactory to Buyer that the meaning Liens against the Company, its Subsidiaries and their respective assets set forth in Section 6.1(e) of the Final Order Under 11 U.S.C. §§ 105, 361, 362, 363, and 507, and Bankruptcy Rules 2002, 4001, and 9014 (I) Authorizing Debtors to Use Cash Collateral, (II) Authorizing Seller Disclosure Letter will be released upon consummation of the Debtors to Obtain Postpetition Financing, and (III) Granting Adequate Protection to Share Purchase in accordance with the Prepetition Secured Parties [ECF No. 587])terms hereof.

Conditions to Each Party’s Obligations to Effect the Closing. The respective obligations of each Party to effect the sale and purchase of the Purchased Assets and to consummate the other transactions contemplated by this Agreement shall be hereby are subject to the fulfillment or joint waiver by the Parties at or prior to the Closing Date of the following conditions: (a) consummation of The waiting period under the transactions contemplated hereby would not violate any nonappealable OrderHSR Act, decree or judgment of the Bankruptcy Court or any other Governmental Authority having competent jurisdiction and there shall not be any Law or Order that makes consummation of the transactions contemplated hereby illegal or otherwise prohibited; (b) all filing and waiting periods applicable (including any extensions extension thereof) , applicable to the consummation of the transactions contemplated by this Agreement under the HSR Act hereby shall have expired or been terminated; (b) No Order which prevents the consummation of any material aspect of the transactions contemplated hereby shall have been issued and remain in effect (each Party agreeing to use its commercially reasonable efforts to have any such Order lifted) and no EXECUTION COPY Law shall have been enacted which directly or indirectly prohibits, or impedes or delays beyond the date specified in Section 10.1(b), the consummation of the transactions contemplated hereby; (c) The consents, releases and other matters set forth on Schedule 8.1(c) shall have been obtained; (d) All consents and approvals of third parties (other than the Required Regulatory Approvals) required in connection with the consummation of the transactions contemplated hereby (including the consents and approvals set forth in Schedule 5.3 and Schedule 6.3) shall have been obtained, except as would not, in the aggregate, create a Material Adverse Effect for either Buyer or Seller; provided that satisfaction of the foregoing condition shall be determined after taking into account the actions taken, if any, by Seller pursuant to Section 7.10(c); (e) The Emergency Backup Service Agreement, System Coordination Agreement, and Transmission Interconnection Agreement shall have been finalized in accordance with Section 7.5(a), and the Borderline Customer Agreements shall have been finalized in accordance with Section 7.19; (f) The perimeter metering and other equipment contemplated by Section 7.5(b) shall have been installed and become operational; and (cg) (x) the Bankruptcy Court With respect to employee matters, each Party in its sole discretion, but acting reasonably, shall have entered determined that the outcomes of the procedures and commitments contemplated by this Agreement, including satisfactory resolution or anticipated resolution of labor issues (including, with respect to Buyer, the acceptance of employment offers by a sale order sufficient number of qualified employees upon terms and conditions consistent with the compensation and benefit provisions herein contemplated to be offered by Buyer, the retirement plan portion of which shall be substantially formulated in Buyer’s discretion), will permit such Party to operate its respective business following the Closing as currently conducted by Seller, without (i) material change in personnel levels, (ii) anticipated labor disruptions, or (iii) increases in associated costs other than normal cost increases in the form attached as Exhibit G hereto (or in such other form and with such other terms as may otherwise be agreed to in writing, or on the record at any hearing before the Bankruptcy Court, by the Buyer and the Seller, the “Sale Order”), which Sale Order shall provide that confirmation of any plan of reorganization shall not occur before the date that is two hundred eleven (211) days from the Petition Date, and no Order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date and (y) each of the conditions to the release of the DIP Term Loan Liens and the DIP ABL Liens (except with respect to the DIP ABL Indemnity Account set forth in the Sale Order) shall have been satisfied (each such term in this clause (y) having the meaning set forth in the Final Order Under 11 U.S.C. §§ 105, 361, 362, 363, and 507, and Bankruptcy Rules 2002, 4001, and 9014 (I) Authorizing Debtors to Use Cash Collateral, (II) Authorizing the Debtors to Obtain Postpetition Financing, and (III) Granting Adequate Protection to the Prepetition Secured Parties [ECF No. 587])ordinary course.

Conditions to Each Party’s Obligations to Effect the Closing. The respective obligations of each Party party to effect the sale and purchase of the Purchased Assets and to consummate the other transactions contemplated by this Agreement shall be subject to the fulfillment at or prior to the Closing Date of the following conditions: (a) the waiting period under the HSR Act applicable to the consummation of the transactions sale of the Purchased Assets contemplated hereby would not violate any nonappealable Order, decree shall have expired or judgment of the Bankruptcy Court or any other Governmental Authority having competent jurisdiction and there shall not be any Law or Order that makes consummation of the transactions contemplated hereby illegal or otherwise prohibited;been terminated; 36 41 (b) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the sale of a material part of the Purchased Assets contemplated hereby shall have been issued and remain in effect (each party agreeing to use its reasonable best efforts to have any such injunction, order or decree lifted) and no statute, rule or regulation shall have been enacted by any Governmental Entity which prohibits the consummation of the sale of the Purchased Assets; (c) other than as set forth in Section 8.2 or 8.3 for the FCC Consents and the FCC Analogous Consents, all filing and waiting periods applicable (including any extensions thereof) to consents of Governmental Entities required for the consummation of the transactions contemplated by this Agreement under the HSR Act shall have expired become Final Orders of the respective Governmental Entities; provided that it shall not be a condition to the Closing that a Final Order by any such Governmental Entity not include any adverse terms or been terminatedconditions unless such terms and/or conditions would, in the aggregate, create a Material Adverse Effect; and (cd) (x) on or before October 31, 2001, the Bankruptcy Court shall have entered a sale order which shall be substantially in the form attached as Exhibit G hereto (or in such other form and with such other terms as may otherwise be agreed to in writing, or on the record at any hearing before the Bankruptcy Court, by the Buyer and the Seller, the “Sale Order”), which Sale Order shall provide that confirmation of any plan of reorganization shall not occur before the date that is two hundred eleven (211) days from the Petition Date, and no Order staying, reversing, modifying or amending the Sale Order shall be in effect on the Closing Date and (y) each of the all conditions to the release of the DIP Term Loan Liens and the DIP ABL Liens (except with respect to the DIP ABL Indemnity Account set forth in contemplated by the Sale Order) Order to consummate the transactions contemplated hereby shall have been satisfied (each such term in this clause (y) having the meaning set forth in the Final Order Under 11 U.S.C. §§ 105, 361, 362, 363, and 507, and Bankruptcy Rules 2002, 4001, and 9014 (I) Authorizing Debtors to Use Cash Collateral, (II) Authorizing the Debtors to Obtain Postpetition Financing, and (III) Granting Adequate Protection to the Prepetition Secured Parties [ECF No. 587])satisfied.

Conditions to Each Party’s Obligations to Effect the Closing. The respective obligations of each Party party to effect the sale and purchase of the Purchased Acquired Assets and to consummate the other transactions contemplated by this Agreement shall be subject to the fulfillment at or prior to the Closing Date of the following conditions: (a) the waiting period under the HSR Act applicable to the consummation of the transactions contemplated hereby would not violate shall have expired or been terminated; (b) no preliminary or permanent injunction or other order or decree by any nonappealable Order, decree federal or judgment state court which prevents the consummation of the Bankruptcy Court or any other Governmental Authority having competent jurisdiction and there shall not be any Law or Order that makes consummation a material part of the transactions contemplated hereby illegal shall be in effect (each party agreeing to use its reasonable best efforts to have any such injunction, order or otherwise prohibiteddecree lifted) and no statute, rule or regulation shall have been enacted by any Governmental Entity which prohibits the consummation of the sale contemplated hereby; (c) the Bankruptcy Court shall have entered the Sale Order and either (x) waived the requirements of Bankruptcy Rule 6004(g) with respect to the Sale Order, or (y) any stay of the Sale Order shall have expired. The Sale Order shall approve this Agreement and all of the terms and conditions hereof and authorize Sellers to consummate the transactions contemplated hereby. The Sale Order shall provide that (i) the Acquired Assets owned by the Debtor and sold to Buyers pursuant to the Agreement shall be transferred to Buyers free and clear of all liens, claims, interests and encumbrances, including, but not limited to, environmental Claims and product liability Claims, any Claims asserted or which may be asserted by the PBGC, (ii) the Transition Supply Agreement shall be approved pursuant to sections 105, 363 and 365 of the Bankruptcy Code, (iii) the Buyers have acted in good faith within the meaning of section 363(m) of the Bankruptcy Code and, as such, are entitled to the protections afforded thereby, (iv) the Agreement was negotiated, proposed and entered into by the parties without collusion, in good faith and from arm’s length bargaining positions, (v) the Buyers are not acquiring or assuming any of Sellers’ or any other person’s liabilities, except as expressly provided in the Agreement, and in no event shall Buyers have any liability or responsibility for any liability excluded under the Agreement, including any unrecorded liability of Sellers, (vi) the Buyers will not have any successor or transferee liability for liabilities of Mxxxxx (whether under federal or State law or otherwise) as a result of the sale, purchase, transfer or assignment of the Acquired Assets, and will be exempt from any so-called “bulk sale” laws in all applicable jurisdictions, (vii) the Agreement and the transactions and instruments contemplated thereby, including, without limitation, the Transition Supply Agreement, shall not be subject to rejection or avoidance by, the Debtor or its estate and their respective successors and assigns, (ix) the Buyers shall have until the confirmation of a chapter 11 plan in this bankruptcy case to compel by written notice to the Debtor (an “Assumption/Rejection Notice”) to seek to assume and assign or reject any executory contracts or unexpired leases of the Debtor or its estate is a party (collectively, the “Executory Contracts”) subject to the right of parties other then Mxxxxx U.S. to seek rejection or assumption sooner, (x) unless otherwise directed by the Bankruptcy Court, the Debtor shall not, under any circumstance whatsoever, seek to assume and assign or reject any Executory Contract (or seek relief from the Bankruptcy Court to do so) without first obtaining the Buyers’ express written consent, provided that, Buyers have complied with their obligations under clause (d) of the definition of “Assumed Obligations, (xi) to the extent that any party requests relief from the Bankruptcy Court, which affects in any way the Executory Contracts or the Transition Period Contracts, the Buyers shall have standing to object or otherwise respond to such request, (xii) the terms of any chapter 11 plan of reorganization confirmed in the bankruptcy case shall not adversely impact the rights of the Buyers in connection with the Sale Order, the Mxxxxx APA, the Transition Supply Agreement or any other related agreements and any chapter 11 plan of reorganization confirmed in the bankruptcy case shall contain provisions necessary to empower the Debtor and its estate and their respective successors and assign to carry out the terms of and consummate the transactions contemplated by the Sale Order, the Mxxxxx APA, the Transition Supply Agreement or any other related agreements and (xiii) there shall be a mutual release of all claims, liabilities, suits, debts, judgments and damages, of any kind whatsoever, based on any conduct, acts or occurrences that arose prior to or as of the Closing Date of the Buyers, the Sellers, Murray U.S.’s chapter 11 estate, the Post-Petition Lenders, the Pre-Petition Lenders, the agent for the Post-Petition Lenders and Pre-Petition Lenders and the creditors committee appointed in the Cases (collectively, the “Released Parties”) by each of the Released Parties; provided, however, that (a) the Buyers shall not release any of their prepetition claims (the “Prepetition Claims”) that the Buyers have asserted or may assert in the future against Mxxxxx U.S. and/or its estate and its respective successors and assigns, (b) the Released Parties shall not release any claims arising out of the Sale Order or this Agreement and (c) Mxxxxx U.S. or its estate shall not release any defenses and rights of set-off or recoupment and that related to the Prepetition Claims or counterclaims (for defensive purposes only) in each case that existed as of the Petition Date; and provided, further, the Sale Order shall not require a release of Buyers from the Post-Petition Lenders, the Pre-Petition Lenders and the agent for the Post-Petition Lenders and Pre-Petition Lenders unless they require a release from Buyers in their favor; (d) if required under the context of the transactions contemplated by this Agreement, the applicable determination(s) or approval(s) pursuant to, or notice(s) under, the Investment Canada Act, including the regulations and rules promulgated thereunder; and (e) all filing and waiting periods applicable (including any extensions thereof) to material consents of other Governmental Entities required for the consummation of the transactions contemplated by this Agreement under the HSR Act shall have expired or been terminated; and (c) (x) the Bankruptcy Court shall have entered a sale order which shall be substantially in the form attached as Exhibit G hereto (or in such other form and with such other terms as may otherwise be agreed to in writing, or on the record at any hearing before the Bankruptcy Court, by the Buyer and the Seller, the “Sale Order”), which Sale Order shall provide that confirmation of any plan of reorganization shall not occur before the date that is two hundred eleven (211) days from the Petition Date, and no Order staying, reversing, modifying or amending than the Sale Order shall be or as otherwise listed in effect on the Closing Date and (y) each of the conditions to the release of the DIP Term Loan Liens and the DIP ABL Liens (except with respect to the DIP ABL Indemnity Account set forth in the Sale Orderthis Section 8.1) shall have been satisfied (each such term in this clause (y) having received from the meaning set forth in the Final Order Under 11 U.S.C. §§ 105, 361, 362, 363, and 507, and Bankruptcy Rules 2002, 4001, and 9014 (I) Authorizing Debtors to Use Cash Collateral, (II) Authorizing the Debtors to Obtain Postpetition Financing, and (III) Granting Adequate Protection to the Prepetition Secured Parties [ECF No. 587])respective Governmental Entities.