BANK OF AMERICA, N.A., AS
ADMINISTRATIVE AGENT.
(II)
THE SECURITY INTERESTS GRANTED TO BANK OF
AMERICA, N.A. PURSUANT TO THE SECURITY AGREEMENT, DATED AS OF APRIL 17, 2003,
AMONG THE SELLER, EACH OF THE SUBSIDIARIES OF THE SELLER FROM TIME TO TIME PARTY
THERETO AND BANK OF AMERICA, N.A. (THE "SECURITY AGREEMENT") BY EACH OF AIMCOR
DE, AIMCOR ENTERPRISES INTERNATIONAL, INCORPORATED AND GANS TRANSPORT AGENCIES
(USA), INC. AND AIMCOR (FAR EAST) INC. SHALL HAVE BEEN RELEASED PURSUANT TO AND
IN ACCORDANCE WITH SECTION 29 OF THE SECURITY AGREEMENT.
(III)
THE SELLER SHALL HAVE DELIVERED TO THE BUYER
CERTIFICATES EVIDENCING THE OUTSTANDING SHARES OF CAPITAL STOCK OF AIMCOR ST.
CROIX, INC.
(F)
OPINIONS OF COUNSEL.
THE BUYER SHALL
HAVE RECEIVED OPINIONS, DATED THE CLOSING DATE AND ADDRESSED TO THE BUYER, OF
(I) SIMPSON THACHER & BARTLETT LLP, SUBSTANTIALLY
58
in the form of Exhibit C hereto, and of (ii) Victor Patrick, Esq., substantially
in the form of Exhibit D hereto.
(G)
MATERIAL ADVERSE CHANGE.
THERE SHALL NOT
HAVE OCCURRED OR BEEN IDENTIFIED ANY MATERIAL ADVERSE CHANGE AS OF (I) THE
CLOSING DATE (IF THE CLOSING OCCURS ON OR PRIOR TO NOVEMBER 3, 2003) OR (II)
NOVEMBER 3, 2003 (IF THE CLOSING OCCURS AFTER NOVEMBER 3, 2003), WHICH HAS NOT
BEEN CURED PRIOR TO THE CLOSING OR THE TERMINATION OF THIS AGREEMENT IN
ACCORDANCE WITH ITS TERMS.
(H)
RESIGNATIONS.
THE BUYER SHALL HAVE RECEIVED
WRITTEN RESIGNATIONS FROM ALL DIRECTORS AND OFFICERS OF ANY OF THE SOLD
COMPANIES AND THE SUBSIDIARIES WHO ALSO ARE DIRECTORS, OFFICERS OR EMPLOYEES OF
SELLER OR ANY OF ITS SUBSIDIARIES OR AFFILIATES (OTHER THAN THE SOLD COMPANIES
OR THE SUBSIDIARIES), ALL EFFECTIVE AS OF THE CLOSING DATE AND SUBSTANTIALLY IN
THE FORM SET FORTH IN EXHIBIT E.
(I)
DISPOSITIONS.
THE DISPOSITIONS SET
FORTH IN SECTION 5.17 SHALL HAVE OCCURRED IN ACCORDANCE WITH THE TERMS THEREOF.
ARTICLE VIII
CLOSING
8.1
Closing Date.
(A)
UNLESS THIS AGREEMENT SHALL HAVE BEEN
TERMINATED AND THE TRANSACTIONS HEREIN SHALL HAVE BEEN ABANDONED PURSUANT TO
ARTICLE X HEREOF, AND SUBJECT TO THE SATISFACTION OR WAIVER OF THE CONDITIONS
SET FORTH IN ARTICLE VII, THE CLOSING OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT (THE "CLOSING") SHALL TAKE PLACE AT 10:00 A.M. ON THE EARLIER TO OCCUR
OF (X) THE SECOND BUSINESS DAY FOLLOWING WRITTEN NOTICE TO THE SELLER FROM THE
BUYER THAT SG AND BLACKSTONE ARE PREPARED TO CLOSE THE FINANCINGS OR (Y)
DECEMBER 15, 2003 (SUCH DATE OF CLOSING REFERRED TO HEREIN AS THE "CLOSING
DATE") AT THE OFFICES OF STEEL HECTOR & DAVIS LLP, 777 SOUTH FLAGLER DRIVE, WEST
PALM BEACH, FL 33401, UNLESS ANOTHER DATE, TIME OR PLACE IS AGREED TO IN WRITING
BY THE PARTIES HERETO.
THE WRITTEN NOTICE REFERRED IN CLAUSE (X) SHALL BE
DELIVERED PROMPTLY FOLLOWING SG AND BLACKSTONE ADVISING THE BUYER THAT THEY ARE
PREPARED TO CLOSE THE FINANCINGS.
THE CLOSING SHALL BE DEEMED EFFECTIVE AS OF
12:01 A.M., MIAMI TIME, ON THE CLOSING DATE.
(B)
ON THE CLOSING DATE, THE BUYER SHALL EXECUTE
CERTIFICATES OF MERGER