GIVE RISE TO A RIGHT
OF TERMINATION OF, OR ACCELERATE THE PERFORMANCE REQUIRED BY THE TERMS OF ANY
JUDGMENT, COURT ORDER OR CONSENT DECREE, OR ANY MATERIAL AGREEMENT TO WHICH
PARENT OR MERGER SUB IS PARTY OR CONSTITUTE A
36
DEFAULT THEREUNDER, EXCEPT IN EACH CASE AS WOULD NOT REASONABLY BE EXPECTED TO
HAVE A PARENT MATERIAL ADVERSE EFFECT.
(C)
NONE OF THE EXECUTION AND DELIVERY OF THIS
AGREEMENT BY PARENT OR MERGER SUB OR THE OTHER TRANSACTION DOCUMENTS TO WHICH
PARENT AND/OR MERGER SUB IS A PARTY OR THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY WILL REQUIRE ANY CONSENT, APPROVAL, ORDER OR
AUTHORIZATION OF, OR REGISTRATION, DECLARATION OR FILING WITH, ANY GOVERNMENTAL
ENTITY, EXCEPT FOR (I) THE FILING OF THE CERTIFICATE OF MERGER WITH THE DELAWARE
SECRETARY OF STATE, (II) SUCH CONSENTS, APPROVALS, ORDERS, AUTHORIZATIONS,
REGISTRATIONS, DECLARATIONS AND FILINGS AS MAY BE REQUIRED UNDER APPLICABLE
FEDERAL AND STATE SECURITIES LAWS AND THE LAWS OF ANY FOREIGN COUNTRY,
(III) SUCH FILINGS AS MAY BE REQUIRED UNDER THE HSR ACT, AND (IV) THOSE WHERE
THE FAILURE TO OBTAIN OR MAKE, AS APPLICABLE, SUCH CONSENT, APPROVAL, ORDER OR
AUTHORIZATION OF, OR REGISTRATION, DECLARATION OR FILING WOULD NOT REASONABLY BE
EXPECTED TO HAVE A PARENT MATERIAL ADVERSE EFFECT.
SECTION 5.3.
CAPITAL RESOURCES.
SUBJECT TO
THE SATISFACTION OF THE CLOSING CONDITION SET FORTH IN SECTION 9.2(F), PARENT
AND MERGER SUB WILL HAVE PRIOR TO THE EFFECTIVE TIME SUFFICIENT CASH AVAILABLE,
LINES OF CREDIT OR OTHER RESOURCES TO PAY THE MERGER CONSIDERATION AND TO REPAY
THE INDEBTEDNESS AS WELL AS ALL ASSOCIATED FEES, COSTS AND EXPENSES.
SECTION 5.4.
LITIGATION.
THERE IS NO SUIT,
CLAIM, ACTION, PROCEEDING OR ARBITRATION PENDING OR, TO PARENT'S KNOWLEDGE,
THREATENED AGAINST PARENT AND MERGER SUB (A) WHICH, IF ADVERSELY DETERMINED,
COULD REASONABLY BE EXPECTED TO ADVERSELY AFFECT PARENT'S OR MERGER SUB'S
ABILITY TO PERFORM HEREUNDER, OR (B) WHICH SEEKS TO ENJOIN OR OBTAIN DAMAGES IN
RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 5.5.
NO BROKERS.
NEITHER PARENT NOR
MERGER SUB IS OBLIGATED FOR THE PAYMENT OF FEES OR EXPENSES OF ANY BROKER OR
FINDER IN CONNECTION WITH THE ORIGIN, NEGOTIATION OR EXECUTION OF THIS AGREEMENT
OR THE OTHER TRANSACTION DOCUMENTS OR IN CONNECTION WITH ANY TRANSACTION
CONTEMPLATED HEREBY OR THEREBY.
SECTION 5.6.
PARENTS ASSETS AND LIABILITIES.
PARENT INDIRECTLY OWNS ALL OF THE MEMBERSHIP INTERESTS OF THILMANY, LLC, A
DELAWARE LIMITED LIABILITY COMPANY (FORMERLY KNOWN AS TIPB ACQUISITION, LLC
("THILMANY"), FREE AND CLEAR OF ANY LIEN AND FREE AND CLEAR OF ANY OTHER
LIMITATION OR RESTRICTION (INCLUDING ANY RESTRICTION ON THE RIGHT TO VOTE, SELL
OR OTHERWISE DISPOSE OF SUCH MEMBERSHIP INTERESTS), OTHER THAN (I) RESTRICTIONS
ON TRANSFER IMPOSED BY APPLICABLE SECURITIES LAWS, (II) AS SET FORTH IN THE
RESPECTIVE LIMITED LIABILITY COMPANY AGREEMENTS OF PARENT, KIPB HOLDINGS, LLC
AND THILMANY, AND (III) LIENS GRANTED TO THILMANY'S SENIOR LENDERS.
THILMANY
OWNS SUBSTANTIALLY ALL OF THE ASSETS ACQUIRED PURSUANT TO THE PURCHASE
AGREEMENT, DATED AS OF MARCH 14, 2005, AS AMENDED, BY AND BETWEEN INTERNATIONAL
PAPER COMPANY AND THILMANY, EXCEPT