Conditions to Obligations of Purchaser The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment or written waiver, prior to or at the Closing, of each of the following conditions; provided, however, that in no event may Purchaser waive the conditions contained in Section 7.2(d) or Section 7.2(e):
(a) Each of the representations and warranties of Sellers contained in ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes of such determination any qualification as to materiality or Material Adverse Effect) as of the Closing Date as if made on the Closing Date (except for representations and warranties that speak as of a specific date or time, which representations and warranties shall be true and correct only as of such date or time), except to the extent that any breaches of such representations and warranties, individually or in the aggregate, have not had, or would not reasonably be expected to have, a Material Adverse Effect.
(b) Sellers shall have performed or complied in all material respects with all agreements and obligations required by this Agreement to be performed or complied with by Sellers prior to or at the Closing.
(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:
(i) a certificate executed as of the Closing Date by a duly authorized representative of Sellers, on behalf of Sellers and not in such authorized representative’s individual capacity, certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied;
(ii) the Equity Registration Rights Agreement, duly executed by Parent;
(iii) stock certificates or membership interest certificates, if any, evidencing the Transferred Equity Interests (other than in respect of the Equity Interests held by Sellers in RHI, Promark Global Advisors Limited, Promark Investments Trustees Limited and the Delayed Closing Entities, which the Parties agree may be transferred following the Closing in accordance with Section 6.30, Section 6.34 and Section 6.35), duly endorsed in blank or accompanied by stock powers (or similar documentation) duly endorsed in blank, in proper form for transfer to Purchaser, including any required stamps affixed thereto;
(iv) an omnibus xxxx of sale, substantially in the form attached hereto as Exhibit P (the “Xxxx of Sale”), together with transfer tax declarations and all other instruments of conveyance that are necessary to effect transfer to Purchaser of title to the Purchased Assets, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(v) an omnibus assignment and assumption agreement, substantially in the form attached hereto as Exhibit Q (the “Assignment and Assumption Agreement”), together with all other instruments of assignment and assumption that are necessary to transfer the Purchased Contracts and Assumed Liabilities to Purchaser, each in a form reasonably satisfactory to the Parties and duly executed by the appropriate Seller;
(vi) a novation agreement, substantially in the form attached hereto as Exhibit R (the “Novation Agreement”), duly executed by Sellers and the appropriate United States Governmental Authorities;
(vii) a government related subcontract agreement, substantially in the form attached hereto as Exhibit S (the “Government Related Subcontract Agreement”), duly executed by Sellers;
(viii) an omnibus intellectual property assignment agreement, substantially in the form attached hereto as Exhibit T (the “Intellectual Property Assignment Agreement”), duly executed by Sellers;
(ix) a transition services agreement, substantially in the form attached hereto as Exhibit U (the “Transition Services Agreement”), duly executed by Sellers;
(x) all quitclaim deeds or deeds without warranty (or equivalents for those parcels of Owned Real Property located in jurisdictions outside of the United States), in customary form, subject only to Permitted Encumbrances, conveying the Owned Real Property to Purchaser (the “Quitclaim Deeds”), duly executed by the appropriate Seller;
(xi) all required Transfer Tax or sales disclosure forms relating to the Transferred Real Property (the “Transfer Tax Forms”), duly executed by the appropriate Seller;
(xii) an assignment and assumption of the leases and subleases underlying the Leased Real Property, in substantially the form attached hereto as Exhibit V (the “Assignment and Assumption of Real Property Leases”), together with such other instruments of assignment and assumption that are necessary to transfer the leases and subleases underlying the Leased Real Property located in jurisdictions outside of the United States, each duly executed by Sellers; provided, however, that if it is required for the assumption and assignment of any lease or sublease underlying a Leased Real Property that a separate assignment and assumption for such lease or sublease be executed, then a separate assignment and assumption of such lease or sublease shall be executed in a form substantially similar to Exhibit V or as otherwise required to assume or assign such Leased Real Property;
(xiii) an assignment and assumption of the lease in respect of the premises located at 0000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, substantially in the form attached hereto as Exhibit W (the “Assignment and Assumption of Harlem Lease”), duly executed by Harlem;
(xiv) an omnibus lease agreement in respect of the lease of certain portions of the Excluded Real Property that is owned real property, substantially in the form attached hereto as Exhibit X (the “Master Lease Agreement”), duly executed by Parent;
(xv) [Reserved];
(xvi) the Saginaw Service Contracts, if required, duly executed by the appropriate Seller;
(xvii) any easement agreements required under Section 6.27(c), duly executed by the appropriate Seller;
(xviii) the Subdivision Master Lease, if required, duly executed by the appropriate Sellers;
(xix) a certificate of an officer of each Seller (A) certifying that attached to such certificate are true and complete copies of (1) such Seller’s Organizational Documents, each as amended through and in effect on the Closing Date and (2) resolutions of the board of directors of such Seller, authorizing the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the transactions contemplated by this Agreement and such Ancillary Agreements and the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such Seller executing this Agreement and the Ancillary Agreements to which such Seller is a party;
(xx) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that each Seller is not a foreign person as defined under Section 897 of the Tax Code;
(xxi) a certificate of good standing for each Seller from the Secretary of State of the State of Delaware;
(xxii) their written agreement to treat the Relevant Transactions and the other transactions contemplated by this Agreement in accordance with Purchaser’s determination in Section 6.16;
(xxiii) payoff letters and related Encumbrance-release documentation (including, if applicable, UCC-3 termination statements), each in a form reasonably satisfactory to the Parties and duly executed by the holders of the secured Indebtedness; and
(xxiv) all books and records of Sellers described in Section 2.2(a)(xiv).
(d) The UAW Collective Bargaining Agreement shall have been ratified by the membership, shall have been assumed by the applicable Sellers and assigned to Purchaser, and shall be in full force and effect.
(e) The UAW Retiree Settlement Agreement shall have been executed and delivered by the UAW and shall have been approved by the Bankruptcy Court as part of the Sale Approval Order.
(f) The Canadian Operations Continuation Agreement shall have been executed and delivered by the parties thereto in the form previously distributed among them.
