PCR » Topics » RECITALS

This excerpt taken from the PCR 8-K filed Sep 12, 2008.

RECITALS

 

WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth for such terms in Section 1.01 hereof;

 

WHEREAS, Borrower has entered into that certain Agreement and Plan of Merger dated as of April 2, 2008 among Borrower, Tutor-Saliba Corporation, a California corporation (“Tutor-Saliba”), Trifecta Acquisition LLC, a California limited liability company and a wholly-owned subsidiary of Borrower (“Merger Sub”), Ronald N. Tutor, a resident of California and a trustee under each of the Ronald N. Tutor Separate Property Trust and the Ronald N. Tutor 2006 Quickgrat, and the shareholders of Tutor-Saliba party thereto, as amended by Amendment No. 1 thereto, dated as of May 28, 2008 (the “Merger Agreement”).

 

WHEREAS, pursuant to the Merger Agreement, Tutor-Saliba will be merged with and into Merger Sub with Merger Sub as the surviving entity, and Merger Sub will concurrently therewith change its name to Tutor-Saliba LLC (the “Merger”);

 

WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation of the obligations and liabilities of the parties under the Existing Credit Agreement, and that this Agreement amend and restate in its entirety the Existing Credit Agreement and re-evidence the Obligations outstanding on the Amendment Effective Date as contemplated hereby; and

 

WHEREAS, it is the intent of the parties hereto to confirm that all Obligations of the Loan Parties under the other Loan Documents, as amended hereby, shall continue in full force and effect and that, from and after the Amendment Effective Date, all references to the “Credit Agreement” contained therein shall be deemed to refer to this Agreement;

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NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

 

ARTICLE I

 

DEFINITIONS AND ACCOUNTING TERMS

 

This excerpt taken from the PCR 10-Q filed May 9, 2008.

RECITALS

 

WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth for such terms in Section 1.01 hereof;

 

WHEREAS, Lenders have established a senior secured revolving credit facility for Borrower in the aggregate amount of $125,000,000 pursuant to the Existing Credit Agreement;

 

WHEREAS, the parties hereto desire to add a supplemental one year senior secured reducing revolving credit facility under this Agreement for Borrower in the aggregate amount of up to [$133,825,000 – To be revised at closing to reflect the aggregate position in auction rate securities held in Borrower’s account with Bank of America or one of its affiliates as of the Amendment Effective Date], subject to the terms and conditions set forth herein;

 

WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation of the obligations and liabilities of the parties under the Existing Credit Agreement, and that this Agreement amend and restate in its entirety the Existing Credit Agreement and re-evidence the Obligations outstanding on the Amendment Effective Date as contemplated hereby; and

 

WHEREAS, it is the intent of the parties hereto to confirm that all Obligations of the Loan Parties under the other Loan Documents, as amended hereby, shall continue in full force and effect and that, from and after the Amendment Effective Date, all references to the “Credit Agreement” contained therein shall be deemed to refer to this Agreement;

 

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

 

ARTICLE I

 

DEFINITIONS AND ACCOUNTING TERMS

 

This excerpt taken from the PCR 8-K filed Apr 7, 2008.

RECITALS

WHEREAS, the board of directors of Parent (the “Parent Board”), acting upon the recommendation of a special committee of independent directors thereof (the “Special Committee”), and the respective boards of directors of Merger Sub and the Company have each determined that it is in the best interests of their respective shareholders or members, as appropriate, to enter into a business combination transaction;

WHEREAS, Parent, Merger Sub and the Company intend to effect a merger of the Company with and into Merger Sub (the “Merger”), with Merger Sub to be the surviving entity of the Merger and a wholly-owned Subsidiary of Parent, on the terms and subject to the conditions set forth herein and in accordance with the General Corporation Law of the State of California and the Limited Liability Company Act of the State of California (collectively, the “CGCL”);

WHEREAS, the board of directors of Parent, acting upon the recommendation of the Special Committee, and the respective boards of directors of Merger Sub and the Company have each (i) determined that this Agreement and the transactions contemplated hereby, including the Merger, are advisable, fair to and in the best interests of their respective shareholders or members, as appropriate, and (ii) approved this Agreement and the transactions contemplated hereby, including the Merger, on the terms and subject to the conditions set forth herein;

WHEREAS, as a condition to the Company’s willingness to enter into this Agreement, simultaneously with or immediately after the execution and delivery of this Agreement, Parent, as the sole member of Merger Sub, is executing and delivering or will execute and deliver an unconditional unanimous written consent to the approval of this Agreement and the transactions contemplated hereby, including the Merger;

 

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WHEREAS, as a condition to Parent’s and Merger Sub’s willingness to enter into this Agreement, simultaneously with or immediately after the execution and delivery of this Agreement, the Shareholders, who collectively own all of the issued and outstanding capital stock of the Company, are executing and delivering or will execute and deliver an unconditional unanimous written consent to the approval of this Agreement and the transactions contemplated hereby, including the Merger, substantially in the form attached as Annex A hereto (the “Company Shareholder Written Consent”);

WHEREAS, as a condition to Parent’s and Merger Sub’s willingness to enter into this Agreement, simultaneously with the execution and delivery of this Agreement, Parent and the Signatory Shareholders party hereto on the date hereof are entering into the Shareholders Agreement in the form attached as Annex B hereto (the “Shareholders Agreement”), with all other Shareholders other than the Signatory Shareholders party hereto on the date hereof to become a party thereto in accordance with Section 6.18, which Shareholders Agreement shall become effective upon the closing of the Merger;

WHEREAS, as a condition to Parent’s and Merger Sub’s willingness to enter into this Agreement, simultaneously with the execution and delivery of this Agreement, Parent and the Shareholder Representative are entering into the Employment Agreement in the form attached as Annex C hereto (the “Employment Agreement”), which Employment Agreement shall become effective upon the closing of the Merger;

WHEREAS, for United States federal income tax purposes, Parent, Merger Sub, the Company and the Shareholders intend that the Merger shall qualify as a reorganization within the meaning of Section 368(a) of the Code; and

WHEREAS, Parent, Merger Sub, the Company and the Shareholders desire to make certain representations, warranties, covenants and agreements in connection with, and to prescribe various conditions to, the Merger and the other transactions contemplated hereby.

This excerpt taken from the PCR DEFA14A filed Apr 7, 2008.

RECITALS

WHEREAS, the board of directors of Parent (the “Parent Board”), acting upon the recommendation of a special committee of independent directors thereof (the “Special Committee”), and the respective boards of directors of Merger Sub and the Company have each determined that it is in the best interests of their respective shareholders or members, as appropriate, to enter into a business combination transaction;

WHEREAS, Parent, Merger Sub and the Company intend to effect a merger of the Company with and into Merger Sub (the “Merger”), with Merger Sub to be the surviving entity of the Merger and a wholly-owned Subsidiary of Parent, on the terms and subject to the conditions set forth herein and in accordance with the General Corporation Law of the State of California and the Limited Liability Company Act of the State of California (collectively, the “CGCL”);

WHEREAS, the board of directors of Parent, acting upon the recommendation of the Special Committee, and the respective boards of directors of Merger Sub and the Company have each (i) determined that this Agreement and the transactions contemplated hereby, including the Merger, are advisable, fair to and in the best interests of their respective shareholders or members, as appropriate, and (ii) approved this Agreement and the transactions contemplated hereby, including the Merger, on the terms and subject to the conditions set forth herein;

WHEREAS, as a condition to the Company’s willingness to enter into this Agreement, simultaneously with or immediately after the execution and delivery of this Agreement, Parent, as the sole member of Merger Sub, is executing and delivering or will execute and deliver an unconditional unanimous written consent to the approval of this Agreement and the transactions contemplated hereby, including the Merger;

 

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WHEREAS, as a condition to Parent’s and Merger Sub’s willingness to enter into this Agreement, simultaneously with or immediately after the execution and delivery of this Agreement, the Shareholders, who collectively own all of the issued and outstanding capital stock of the Company, are executing and delivering or will execute and deliver an unconditional unanimous written consent to the approval of this Agreement and the transactions contemplated hereby, including the Merger, substantially in the form attached as Annex A hereto (the “Company Shareholder Written Consent”);

WHEREAS, as a condition to Parent’s and Merger Sub’s willingness to enter into this Agreement, simultaneously with the execution and delivery of this Agreement, Parent and the Signatory Shareholders party hereto on the date hereof are entering into the Shareholders Agreement in the form attached as Annex B hereto (the “Shareholders Agreement”), with all other Shareholders other than the Signatory Shareholders party hereto on the date hereof to become a party thereto in accordance with Section 6.18, which Shareholders Agreement shall become effective upon the closing of the Merger;

WHEREAS, as a condition to Parent’s and Merger Sub’s willingness to enter into this Agreement, simultaneously with the execution and delivery of this Agreement, Parent and the Shareholder Representative are entering into the Employment Agreement in the form attached as Annex C hereto (the “Employment Agreement”), which Employment Agreement shall become effective upon the closing of the Merger;

WHEREAS, for United States federal income tax purposes, Parent, Merger Sub, the Company and the Shareholders intend that the Merger shall qualify as a reorganization within the meaning of Section 368(a) of the Code; and

WHEREAS, Parent, Merger Sub, the Company and the Shareholders desire to make certain representations, warranties, covenants and agreements in connection with, and to prescribe various conditions to, the Merger and the other transactions contemplated hereby.

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